Legal Research
Cases
Duncan v Independent Commission Against Corruption

Duncan v Independent Commission Against Corruption

Link copied

Case Copied 22 June 2016 75 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Hearing dates: 16-18 February 2016
Decision date: 22 June 2016
Before: Bathurst CJ at [1];
Beazley P at [460];
Basten JA at [534]
Decision:
In matter 2014/239426 – Travers William Duncan v Independent Commission Against Corruption:
(1)   Grant the applicant leave to appeal.
(2)   Direct that the applicant file the draft notice of appeal in the white book within seven days.
(3)   Dismiss the appeal.
(4)   Order the appellant to pay the costs of the Commission of the proceedings in this Court.

In matter 2014/249038 – John Vern McGuigan and Richard Jonathon Poole v Independent Commission Against Corruption:
(1)   Grant the applicants leave to appeal.
(2)   Direct that the applicants file the draft notice of appeal in the white book within seven days.
(3)   Dismiss the appeal.
(4)   Order the appellants to pay the costs of the Commission of the proceedings in this Court.

In matter 2014/318985 – Cascade Coal Pty Ltd, Mt Penny Coal Pty Ltd and Glendon Brook Coal Pty Ltd v Independent Commission Against Corruption:
(1)   Grant the applicants leave to appeal.
(2)   Direct that the applicants file the draft notice of appeal in the white book within seven days.
(3)   Dismiss the appeal.
(4)   Order the appellants to pay the costs of the Commission of the proceedings in this Court.
In matter 2014/319803 – John Charles Atkinson v Independent Commission Against Corruption:
(1)   Grant the applicant leave to appeal.
(2)   Direct that the applicant file the draft notice of appeal in the white book within seven days.
(3)   Dismiss the appeal.
(4)   Order the appellant to pay the costs of the Commission of the proceedings in this Court.
Catchwords:
ADMINISTRATIVE LAW – judicial review – Independent Commission Against Corruption – findings of “corrupt conduct” – failure to disclose material facts – whether conduct could “adversely affect” exercise of official functions by a public official – Ministerial discretion in granting of a mining lease – causal connection to exercise of function – whether non-disclosure justified where information could reach the public domain through alternative means

ADMINISTRATIVE LAW – judicial review – jurisdiction of Commission – whether the power conferred by statute to make findings and form opinions extended beyond the question of “corrupt conduct” – whether power extended to making recommendations – whether recommendations amenable to review

CORPORATIONS – director’s duties – fiduciary duty – duty to act in good faith in the best interests of the company and for proper purpose – whether affirmative duty to disclose information – whether removing oneself from position of conflict sufficient to fulfil duty

CRMINAL LAW – whether failure to disclose material facts amounts to deception – whether failure to disclose material facts amounts to fraud, Crimes Act 1900 (NSW), ss 192B, 192E; Corporations Act 2001 (Cth), s 184(1)

CRIMINAL LAW – dishonestly obtaining a financial advantage – whether obviating or deferring a financial risk constitutes…

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.

Keep reading for free

Create a free CaseChat account to read Duncan v Independent Commission Against Corruption and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWCA 143
Decision Date: 22 June 2016

CaseChat Overview and Summary

In the matters of *Duncan v Independent Commission Against Corruption* and related appeals, the applicants sought judicial review of findings made by the Independent Commission Against Corruption (ICAC) concerning corrupt conduct. The central dispute involved allegations that the applicants, including company directors and associated entities, had failed to disclose material facts relevant to the granting of a mining lease, which the ICAC found could have adversely affected the exercise of official functions by a public official. The applicants challenged the ICAC's jurisdiction, the nature of its findings, and the application of various legal principles, including director's duties and criminal provisions related to deception and obtaining financial advantage. The proceedings were heard by Bathurst CJ, Beazley P, and Basten JA.

The court was required to determine several key legal issues. These included whether the ICAC's statutory power to make findings and form opinions extended beyond corrupt conduct to encompass recommendations, and if so, whether such recommendations were amenable to judicial review. The court also considered whether the failure to disclose material facts, even if the information might have become public through alternative means, could constitute conduct that adversely affected the exercise of official functions. Furthermore, the court examined the scope of a director's fiduciary duty, specifically whether an affirmative duty to disclose information existed beyond ceasing to be in a position of conflict, and whether the conduct in question amounted to deception or fraud under the *Crimes Act 1900* (NSW) or dishonestly obtaining a financial advantage under the *Corporations Act 2001* (Cth). The relevance of public interest considerations in the context of ministerial discretion for granting mining leases was also a point of contention.

The court reasoned that the ICAC's power to make recommendations was a statutory function that was not amenable to judicial review, as it was not a determination of rights or liabilities. Regarding the adverse effect on official functions, the court found that the failure to disclose material facts was sufficient, irrespective of whether the information could have been obtained through other channels. The court also held that a director's fiduciary duty did not impose an affirmative obligation to disclose information in the circumstances presented, and that the conduct did not meet the elements of deception or fraud. The court dismissed the appeals, finding that the applicants had failed to establish grounds for judicial review of the ICAC's findings and recommendations. The applicants were ordered to pay the costs of the Commission.

Orders

Orders of the court

In matter 2014/239426 – Travers William Duncan v Independent Commission Against Corruption:

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file the draft notice of appeal in the white book within seven days.

(3) Dismiss the appeal.

(4) Order the appellant to pay the costs of the Commission of the proceedings in this Court.

In matter 2014/249038 – John Vern McGuigan and Richard Jonathon Poole v Independent Commission Against Corruption:

(1) Grant the applicants leave to appeal.

(2) Direct that the applicants file the draft notice of appeal in the white book within seven days.

(3) Dismiss the appeal.

(4) Order the appellants to pay the costs of the Commission of the proceedings in this Court.

In matter 2014/318985 – Cascade Coal Pty Ltd, Mt Penny Coal Pty Ltd and Glendon Brook Coal Pty Ltd v Independent Commission Against Corruption:

(1) Grant the applicants leave to appeal.

(2) Direct that the applicants file the draft notice of appeal in the white book within seven days.

(3) Dismiss the appeal.

(4) Order the appellants to pay the costs of the Commission of the proceedings in this Court.

In matter 2014/319803 – John Charles Atkinson v Independent Commission Against Corruption:

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file the draft notice of appeal in the white book within seven days.

(3) Dismiss the appeal.

(4) Order the appellant to pay the costs of the Commission of the proceedings in this Court.

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:	Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Hearing dates:	16-18 February 2016
Decision date:	22 June 2016
Before:	Bathurst CJ at [1]; Beazley P at [460]; Basten JA at [534]
Decision:	In matter 2014/239426 – Travers William Duncan v Independent Commission Against Corruption: (1) Grant the applicant leave to appeal. (2) Direct that the applicant file the draft notice of appeal in the white book within seven days. (3) Dismiss the appeal. (4) Order the appellant to pay the costs of the Commission of the proceedings in this Court. In matter 2014/249038 – John Vern McGuigan and Richard Jonathon Poole v Independent Commission Against Corruption: (1) Grant the applicants leave to appeal. (2) Direct that the applicants file the draft notice of appeal in the white book within seven days. (3) Dismiss the appeal. (4) Order the appellants to pay the costs of the Commission of the proceedings in this Court. In matter 2014/318985 – Cascade Coal Pty Ltd, Mt Penny Coal Pty Ltd and Glendon Brook Coal Pty Ltd v Independent Commission Against Corruption: (1) Grant the applicants leave to appeal. (2) Direct that the applicants file the draft notice of appeal in the white book within seven days. (3) Dismiss the appeal. (4) Order the appellants to pay the costs of the Commission of the proceedings in this Court. In matter 2014/319803 – John Charles Atkinson v Independent Commission Against Corruption: (1) Grant the applicant leave to appeal. (2) Direct that the applicant file the draft notice of appeal in the white book within seven days. (3) Dismiss the appeal. (4) Order the appellant to pay the costs of the Commission of the proceedings in this Court.
Catchwords:	ADMINISTRATIVE LAW – judicial review – Independent Commission Against Corruption – findings of “corrupt conduct” – failure to disclose material facts – whether conduct could “adversely affect” exercise of official functions by a public official – Ministerial discretion in granting of a mining lease – causal connection to exercise of function – whether non-disclosure justified where information could reach the public domain through alternative means ADMINISTRATIVE LAW – judicial review – jurisdiction of Commission – whether the power conferred by statute to make findings and form opinions extended beyond the question of “corrupt conduct” – whether power extended to making recommendations – whether recommendations amenable to review CORPORATIONS – director’s duties – fiduciary duty – duty to act in good faith in the best interests of the company and for proper purpose – whether affirmative duty to disclose information – whether removing oneself from position of conflict sufficient to fulfil duty CRMINAL LAW – whether failure to disclose material facts amounts to deception – whether failure to disclose material facts amounts to fraud, Crimes Act 1900 (NSW), ss 192B, 192E; Corporations Act 2001 (Cth), s 184(1) CRIMINAL LAW – dishonestly obtaining a financial advantage – whether obviating or deferring a financial risk constitutes…