Duncan v IPP

Case [2013] NSWCA 189

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Duncan v Ipp [2013] NSWCA 189
Hearing dates:8 May 2013
Decision date: 25 June 2013
Before: Bathurst CJ at [1]; Barrett JA at [217]; Ward JA at [220]
Decision:

1. Leave to appeal granted

2. Appeal dismissed with costs

[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 - apprehended bias - pre-judgment - Independent Commission Against Corruption (ICAC) - conduct of the Commissioner of the ICAC.

ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - test for reasonable apprehension of bias - application of test to investigatory body - scope of Independent Commission Against Corruption Act 1988.

ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - test for apprehended bias - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 - whether there was a logical connection between the conduct of the Commissioner and the alleged apprehended bias.

ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - whether contact between the Commissioner, the Executive and Government Departments, advice provided by the Commissioner and the circumstances of providing such advice either separately or holistically established apprehended bias.
Legislation Cited: Environmental Planning and Assessment Act 1979 Pt 3A, s 75V
Independent Commission Against Corruption Act 1988, s 2A, s 10, s 12, s 13, s 14, s 16, s 17, s 20, s 30, s 31, s 53, s 73, s 74, s 111, Schedule 1
Cases Cited: Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
R v Lusink; Ex parte Shaw (1980) 32 ALR 47
Vakauta v Kelly [1989] HCA 44; (1989) 167…

Continue reading Duncan v IPP

Sign in free to access the full text

Details
AGLC
Duncan v IPP [2013] NSWCA 189
Case
[2013] NSWCA 189
Decision Date

CaseChat Overview and Summary

The proceeding concerned an appeal from a decision of the Independent Commission Against Corruption (ICAC) Commissioner. The appellant, Duncan, sought to challenge the Commissioner's conduct, alleging apprehended bias. The appeal was heard by Bathurst CJ, Barrett and Ward JJA.

The central legal issue before the Court of Appeal was whether the conduct of the ICAC Commissioner gave rise to a reasonable apprehension of bias. This involved considering whether the Commissioner's interactions with the Executive and Government Departments, the advice provided, and the circumstances surrounding that advice, either individually or collectively, demonstrated a pre-judgment of matters relevant to the ICAC's investigation. The Court was required to apply the established test for apprehended bias, as articulated in cases such as *Ebner v Official Trustee in Bankruptcy*, to the specific context of an investigatory body like the ICAC and the scope of its governing legislation, the *Independent Commission Against Corruption Act 1988*.

The Court of Appeal reasoned that the test for apprehended bias requires an examination of whether a fair-minded lay observer, having considered the facts, would apprehend that the decision-maker might not bring an impartial mind to the issue. Applying this test, the Court found no logical connection between the Commissioner's conduct and the alleged apprehended bias. The Court concluded that the interactions and advice provided by the Commissioner did not demonstrate a pre-judgment or a lack of impartiality.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.

Orders

Orders of the court

1. Leave to appeal granted

2. Appeal dismissed with costs

[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

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.