Duncan v Ipp & Ors

[2013] HCATrans 157

[2013] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S132 of 2013

B e t w e e n -

TRAVERS WILLIAM DUNCAN

Applicant

and

DAVID ANDREW IPP

First Respondent

INDEPENDENT COMMISSION AGAINST CORRUPTION

Second Respondent

ATTORNEY‑GENERAL OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 25 JULY 2013, AT 11.31 AM

Copyright in the High Court of Australia

____________________

MR N.C. HUTLEY, SC:   If your Honours please, I appear with my learned friend, MR G.E.S. NG, for the applicant.  (instructed by Yeldham Price O’Brien Lusk Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR J.L. CLARK, for the third respondent.  (instructed by Crown Solicitor (NSW))

FRENCH CJ:   Yes, Mr Hutley.

MR HUTLEY:   Thank you, your Honour.  Your Honours, in our summary of argument, we deal with the conclusions of the Court of Appeal in respect of each of the matters about which we contended the relevant apprehension could arise:  firstly, the events on or before 15 January and the Premier’s letter of 30 January, and that is at application book 179, paragraphs 9 to 13; secondly, the communications between the Commissioner and Mr Eccles of 31 January 2013, and that is application book 181, 14 to 23; thirdly, the conduct in open commission between 6 and 14 February, and that is at application book 182, 24 to 30; and, finally, the advice of 19 February, and that is at 184, 31 to 34.

FRENCH CJ:   Now, Mr Hutley, looking at your draft notice of appeal at 171 and following, is it a fair characterisation of it that the first ground, that is to say 2, is concerned with whether the court applied the correct test, and secondly, ground 3, the approach the court took to the apprehension of a “possible motivation in engaging in the conduct” concerned of, and that the balance of the grounds are really concerned with the evaluative exercise that the Court of Appeal took in relation to each of the areas of conduct impugned.

MR HUTLEY:   I accept that characterisation.

FRENCH CJ:   Yes.

HAYNE J:   This is said to be a case of prejudgment, or apprehension of prejudgment?

MR HUTLEY:   Apprehension, yes, your Honour.

HAYNE J:   Of what?

MR HUTLEY:   Of a determination that there had been corrupt conduct arguably involving my client or the persons involved in the activities said to be the subject of the inquiry.

HAYNE J:   The qualification arguably gives the game away, does it not, Mr Hutley?

MR HUTLEY:   No, I was not, with respect – when I referred to “arguably” in that regard, your Honour, I was dealing with this point.  There was a debate in the Court of Appeal about whether it would be directed at my client.  That was not determined by the Court of Appeal, and that is why I used the word.  When one goes, with respect, your Honour, to the character of the inquiry and the centrality in the way it was opened of my client, the point that it would be directed at my client and the reasonable observer might come to that conclusion is, in our respectful submission, made out.  That was not dealt with by the Court of Appeal.  The Court of Appeal dealt with it at a different level, your Honour, and did not conclude that. 

The Court of Appeal dealt with it at an antecedent point.  It then in fact implicitly accepted that if there was an arguable conclusion of apprehension, it would apply to my client because otherwise there would have been a short answer to the proposition that if, no matter what the case was, you could not conclude that it was of my client, but that is not the approach that the Court of Appeal, or for that matter, with respect, his Honour the Chief Judge at Common Law took.

What we have proposed to address is the first point, your Honour, to make good the proposition that we say that this is a matter which warrants a grant of special leave.  Firstly, the Commission and the Commissioner are relevantly creatures of statute only and the objects of the Act are as expressed at section 2A of the legislation, which your Honours will find in paragraph 32 of the Court of Appeal judgment, where it says:

The principal objects of this Act are:

(a)to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body –

to do those things.  The principal functions of the Commission are set out in section 13, and section 13 your Honours will find in paragraph 37 at application book 102.  Your Honours, the section sets out the functions at (1)(a):

to investigate any allegation or complaint, or any circumstances which in the Commission’s opinion imply –

certain matters.  That confers on the Commission, as it were, an originating power.  Secondly, (b) –

to investigate any matter referred to the Commission by both Houses of Parliament –

that is (b).  Then there are various consequences of communication and the like and I do not think I need to take your Honours through the balance of them.  Could I ask your Honours to note subsection (3) on 104.  It provides:

The principal functions of the Commission also include:

. . . 

(b)      the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.

Section 73, which your Honours will find extracted in the judgment at paragraph 44 at 106, confers on both Houses of Parliament the power to refer matters to the Commission and subsection (3) imposes a duty on the Commission “to comply as fully as possible” – subsection (2) is a duty to investigate, and subsection (3) a duty to comply as fully as possible.

The scope of any investigation is determined by the Commission or by reference.  No other body can initiate, expand or contract that scope.  We submit that is the vital attribute of this organisation to fulfil one of its principal objects, namely to act as independent and accountable.  It follows, we submit, that by promoting or suggesting by the Commissioner of a letter to the Executive, that act of the Premier, if followed, which it was, could have no legal significance to the Commission in undertaking the inquiry known as Operation Jasper or in affecting its scope or bounds.

No power is conferred upon the Commission to promote or suggest communication from the Executive of the character of that letter, in our respectful submission.  That, in our respectful submission, is not surprising because it would be neither necessary, nor effective in any way to alter the function of the Commission.  In this regard, the Chief Justice’s reference to section 13(1)(e) at application book 145, paragraph 165 of the judgment in the last lines, your Honours – I will not read it – was, with respect, erroneous, and can I take your Honours to section 13(1)(e), which your Honours will find at application book 103.  It is one of the functions:

to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated –

That, in our respectful submission, does not warrant in any way the approach that was made.

FRENCH CJ:   What about 13(3)(b)?

MR HUTLEY:   Yes.  That is only in matters referred by both Houses of Parliament – I am sorry, (3)(b)?  I do apologise.

FRENCH CJ:   Yes, (3)(b), “The principal functions of the Commission also include”.

MR HUTLEY:   Yes:

the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results –

With respect ‑ ‑ ‑

FRENCH CJ:   That is a more formal process, you would say?

MR HUTLEY:   That is a more formal process which assumes the making of findings and then to do the acts which the letter sought to be done.  In other words, (3)(b) establishes that the letter was – and I will come to it – when the court referred to a desire to extend the nature of the inquiry, there was no extension of the inquiry which had to take place, which could take place.  It was part of the essential functions of the Commission to do exactly that which the letter contemplated.

BELL J:   Assume you are right, and the Chief Justice is wrong in his understanding of section 13(1)(e), where does it take you?  The Commissioner might have entertained a similar misapprehension on an assumption that your construction is correct.  Where does that take you, Mr Hutley?

MR HUTLEY:   Your Honour, this goes to the nature of the test of the observer.  Rather than repeating the formula, could I just use the fair‑minded – the observer?

HAYNE J:   Let me follow that out.  The Commissioner, you say, has done something without statutory authority to do it?

MR HUTLEY:   Yes.

HAYNE J:   So, what follows?

MR HUTLEY:   Can I put it contextually, your Honour?  I wish to answer the question.  There is an inquiry ongoing.  The inquiry is at the midpoint, it might be described.  The Commissioner approaches the government, the Executive, to write a letter to the Commission seeking that the Commissioner would report in relation to the matters (d) to (e), and (d) to (e), it is necessary to look at them – (c), (d) and (e) – which your Honours will see taken at the point of time with which one is concerned at application book 79.  That is taken in terms from the reference that took place from the Parliament in respect of any recommended action, whether the New South Wales Government should commence proceedings or take any other action against any individual or company in relation to the circumstances surrounding the allegation. 

In other words, at a midpoint, when conducting an inquiry, an approach is made by the person conducting it to the Executive that has no formal role in relation to promoting the inquiry into topics of suggesting receipt of recommendations about matters which ex facie could be – and we are dealing with “might” here – might be interpreted by a member of the public, the requisite bystander, as being adverse to the interests of the object of that inquiry.

The question arises – and I will not take your Honours to Ebner at paragraph 8, or the reference to it in the subsequent cases – and there is a reference to, there has to be a logical connection, and the question arises, and we say is, might a bystander who saw that conduct conclude – and we say it could – that the Commissioner was acting in a way wholly outside his role as dictated by the legislation to promote a position of, as it were, a desire by the government to see answered questions adverse to the objects of this inquiry and might – that being the requisite connection – might that lead to a conclusion that the Commissioner might have concluded to make such adverse determinations, and if that process of reasoning can be made good we would submit the test is satisfied.

The issue that arises in this case, we submit, is this.  Often in the cases, there have been, as it were, institutional constraints because of experience on the development of the requisite finding as to possibilities, for example, judges in courts asking aggressive questions.  One would not draw the relevant conclusion because one assesses the standard of the occasion by reference to norms which the bystander is taken to understand. 

This case throws up - the issue on this point is what happens if there is no standard against which one is to judge whether the process of reasoning from which one proceeds and, in our respectful submission, the inquiry necessitates an inquiry into the ambit of what can flow from conduct which is outside the complete authority, or any colour of authority of an official in a way which could rationally be interpreted as adverse to the interests of the object of the inquiry.

FRENCH CJ:   Now, it is enough on that contention for the informed lay observer to think that the Commissioner might want Mount Penny’s development application refused.  That is the outcome adverse to the interests of a party that you are ‑ ‑ ‑

MR HUTLEY:   And having regard to the way it was opened – I have not gone to the detail – to take up the point that your Honour Justice Hayne raised, because of the way it was opened and it was brought about, that almost inevitably involved potentially findings adverse to my client, because of the way in which the case was opened and developed which is set there.  I have not been to those, your Honour, because it was not an issue, but either Mount Penny, the organisation, or my client, in effect, becomes front and centre.

HAYNE J:   Can I see where we have got to so far?  The Commission is charged with the task of finding whether there is or was corruption in respect of a particular set of circumstances.  So far, so good?

MR HUTLEY:   I accept that.

HAYNE J:   You say that the Commission had no power to ask the Executive to invite it to answer the question whether the government should do anything in response to a finding of corruption?

MR HUTLEY:   Yes.

HAYNE J:   Why not?

MR HUTLEY:   Because that is his principal function anyway, and he is required to remain independent.

HAYNE J:   Be it so, do you say that one of his principal functions is to tell government what to do in response to a finding of corruption?

MR HUTLEY:   His principal function is to formulate recommendations for taking action, et cetera, as per (3)(b).  It is not to ask the government to ask him to formulate recommendations with respect to action and, with respect, your Honour, I take your Honour’s point, but there is absolutely neither need nor – it has absolutely no juridical consequence.  It does not relieve him or expand him from the performance of his function, and the whole point of his function as independence is, with respect, independence in making his investigation and performing his functions from the Executive.

HAYNE J:   I understand what you say about that, and all this proceeds on the assumption that the Ebner test is to be applied to somebody not exercising judicial power, but conducting a statutory inquisition.

MR HUTLEY:   That has been common ground ‑ ‑ ‑

HAYNE J:   I understand that is common ground.

MR HUTLEY:   ‑ ‑ ‑ but that has not been dealt with, your Honour.  That has been accepted ‑ ‑ ‑

HAYNE J:   I understand that, but I would have thought the applicability of that test was itself a matter for debate.

MR HUTLEY:   If so, your Honour, that debate has not taken place ‑ ‑ ‑

HAYNE J:   I understand that.

MR HUTLEY:   ‑ ‑ ‑ and that itself is an important question.

HAYNE J:   If any other test is to be applied, it would be less rigorous.

MR HUTLEY:   Your Honour, if any other test were applied, one would have to expose that test and then have to inquire into the character of the conduct and what it might promote, when the conduct is conduct – without statutory warrant and, with respect, has to be contextualised to when it occurred.  It did not occur, with respect, at the first moment one was conceiving the application.  It occurred after there had been – it is apparent from the evidence – a highly publicised matter of general importance, and one was right in the middle of it.

HAYNE J:   The Commissioner should not have asked government to ask him “what should we do in response?”

MR HUTLEY:   Yes, and in the way the questions were framed, i.e. to return your Honour to them, including not in a neutral fashion because, of course, Parliament itself has no need to be neutral, but in (e) at 79:

Whether the New South Wales Government should commence legal proceedings, or take any other action, against any individual –

With respect, a person might, and one is dealing here, of course – I am not telling your Honours, your Honours developed the test – might be taken by the observer.  This case raises the question of where one has conduct outside the scope of powers, and we say that is correct, what is the process of reasoning that might be taking place by this observer in this sort of context?

Now, we give the example – and it is not necessary to go to it – but that, we say, encapsulates the question which confronts this Court and we say merits a grant of special leave.  The Court has not dealt with this sort of conduct and the process of reasoning which can be attributed to the notional individual with which one is dealing.  The Court of Appeal referred to “logical connection” and the precise ambit of what was meant by that term in Ebner is a matter of some importance and, in our respectful submission, it is not obviously a process of syllogism because one is ‑ ‑ ‑

FRENCH CJ:   I think we have read your submissions on this, Mr Hutley.  Your time is up.

MR HUTLEY:   I will be repeating.  As your Honours please.

FRENCH CJ:   Thank you.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, it is not, in our submission, an appropriate special leave point to examine what my friend has just called “the precise ambit” of what in Ebner was called “a logical connection”.  That would, in our submission, disserve rather than advance an understanding of principle in this area.  The words this Court has already used and repeated are, with respect, “plain and adaptable”.

Related to that point is a response to a comment by Justice Hayne to my learned friend.  The test, as my learned friend pointed out, has been regarded in the issue joined and argument had between the parties in the two courts below on the basis of its application to this non‑judicial investigative self‑initiating and co‑operative body, and we make this remark only in relation to the possibility that Justice Hayne raised with my learned friend, that is, that what the authorities and principle already establish, namely that all these tests are to be adapted and understood in their application to the particular statutory and also factual circumstances to which they are sought to be applied will encompass the kind of adjustments which are of course necessary to distinguish between a judicial body, a quasi‑judicial body not having the peculiar characteristics of ICAC, and ICAC itself.

FRENCH CJ:   So there is a spectrum from, say a court through to the ministerial function in ‑ ‑ ‑

MR WALKER:   Quite so.  The closer one gets to the interior of a Minister’s office and private advisers, for example, then the further one has gone from the other point of the spectrum which is a court.  It does not mean that something in the nature, for example, of procedural fairness or avoidance of bias may not, depending upon statutory and other circumstances, apply to both, but the content ‑ ‑ ‑

HAYNE J:   But it requires unpacking of what is meant by prejudgment.

MR WALKER:   Exactly.

HAYNE J:   Prejudgment of what?  Is it an issue to which the decision maker must bring a totally open mind, as judges must?

MR WALKER:   Yes, and may I now pick up on that matter which, in our submission, is at the heart of the controversy proposed for this Court to examine in a special leave application.  Our first point, which we have tried to put in writing, and I can put as briefly as I may now, is that there is not any of the misapprehension or misstatement of this Court’s enunciation of principle in the articulation and citation of authority by all four judges in the courts below.  That is the first point.

The second point is that there is nothing of substance worthy of this Court’s attention pursuant to a grant of special leave in the exploration of such subtleties as may exist of difference between a syllogistic approach and simply looking for what this Court has called, in plain English, “a logical connection”.  The third point is this.  There is premise, as my learned friend’s address has made clear, as a very important part of the applicant’s argument as would‑be appellant that what was done here was, to quote my learned friend at one point this morning, “wholly outside the powers of the Commissioner”.  This, in our submission, is a furphy.

I do not need to take your Honours to many provisions, most of which have either been referred to in writing or by my learned friend this morning, but just to go through them in a sequence from the most general – the object in section 2A(a)(i), which includes prevention, section 12’s requirement to place as paramount the public interest in anti‑corruption and then, in particular, the provisions that your Honours have already been taken to in paragraph 13(3)(b) and, for that matter, paragraph 13(1)(e), to which attention has been drawn this morning.  It is to be borne in mind that in relation to all of those there is of course the section 19 incidental power, to which my learned friend really has made no reference in terms of examining this question of power, such an important premise of his argument.

We would also draw to attention in that regard the admonition and power which is contained in the combination of paragraph 16(1)(b) and subsection 16(2).  In a sense, like section 20 in terms of self‑initiating investigations, these illustrate a degree of supererogatory or repetitive and, therefore, emphatic reference in the statute, more than one reference conveying the proposition that this is a body that can and should in appropriate cases co‑operate, including with a degree of informality – I do not propose that there was any informality displayed by the narrative in this case – but to co‑operate with persons who, to put it mildly, will include the Premier and the head of the Premier’s Department.

FRENCH CJ:   Incidentally, does the record show who initiated the contact, whether the Commissioner approached Mr Eccles or vice versa?

MR WALKER:   I think it was the Commissioner for at least one of the contacts, and certainly the initiating one, yes.

BELL J:   Was that after the public revelation that the Minister understood that he would have to grant the exploration licence?

MR WALKER:   Quite, that is right.  The sequence is the Minister’s public statement, “I have got advice.  I am not going to give it all to you, but it means I have got to go ahead, steam ahead.”  The Commissioner is in touch with the Premier’s Department to say, “Well, you don’t.”

In our submission, when one looks at those provisions and one recalls that the understanding of Mr Eccles, the senior public servant, was that the letter would serve to confirm in writing a dealing between the Premier’s Department and the Commissioner, one sees not only no lack of power but, indeed, an approach of regularity, official recordkeeping which, in our submission, is creditable and has none of the whiff of illegitimacy which is necessary, absolutely indispensable, to the applicant’s argument.  It is the reverse of the way in which the applicant seeks to depict the matter.

My learned friend developed the matter, the idea, the concept of this conduct being wholly outside the Commissioner’s power – one interpolates to say what, if someone had got wind of it and had standing, they could have got prohibition against the Commissioner being in touch with the Premier’s Department?  It is an absurdity.  But he develops that by saying it had no juridical consequence, as if that itself was some mark of Cain in relation to official conduct.  But one only has to remember Ainsworth v Criminal Justice Commission.  The very point of no certiorari in that case was no juridical consequence, would not affect rights.  However, it might affect reputation so as to ground the court’s jurisdiction to grant a declaration after the event, with the commentary by their Honours in this Court that if there had been knowledge in anticipation of the event, there could have been a prohibition.

HAYNE J:   Can I understand where this part of the argument has taken you?  Do I understand it to amount to an argument that the communication can be understood as the Commissioner seeking preservation of a subject matter about which recommendations may later be made?

MR WALKER:   Exactly, yes.  Your Honour actually anticipates the next point – I was taking a midpoint – yes, your Honour.  It had no juridical consequence in the sense of altering any rights.  To the contrary, the stance which was taken, understood by Mr Eccles at one stage as saying “Do not grant the DA until - until the report is in”, when one unpacks those words, which were being taken by the applicant as indicating in some sinister way a closed mind – that is, not open to the possibility of no corruption – when one actually looks at the language, albeit of Mr Eccles, not of the Commissioner, “do not grant until”, it naturally supposes that after the report is in, it is open to grant, to which one adds of course emphatically, depending upon two things at least:  conclusions including recommendations of the Commissioner on the one hand, and decision making by the government on the other.

It is precisely, with respect, as Justice Hayne has put to me.  This was action taken by the Commissioner in response to governmental announcement, taken by the Commissioner with both propriety and full power, contact with the Premier’s senior bureaucrat, asking for the matter to be placed on a record, which as one knows was then the subject of appropriate divulgence in the Commission hearing, without any expectation – you have not heard any suggestion of this any more this morning – of the absurd notion that the Commission would adopt an “open file” manner of conducting its investigations.

May I then go to another of the indications which strongly support the conclusion reached by the four judges below in relation to what this Court has said repeatedly needs firmly to be established, that is, the possibility involving what has been called the “two mights” test.  That, in our submission, is the point of the admonition in Ebner, no doubt with great respect in principle required by the epithet “reasonable” attached to this prism through which the test is administered, this fictitious personage, of “reasonable”. 

That is where the “logical connection” notion comes and one asks then, bearing in mind this concept akin to preservation of subject matter – hence our analogy, not wholly successful in argument below with an interlocutory injunction – bearing in mind this notion of preserving the subject matter one sees that all that that personage would have in order to ask the question “What might I reasonably apprehend?” concerning a closed mind about a finding of corruption against either the company or the applicant, then, in our submission, the argument falls away.

Far from there being a logical connection between the Commissioner’s concern to keep open the question whether there will be matters of corruption which, as a matter of the statutory reference to public interest in the planning legislation should be taken into account by the government in future – rather than that indicating a closed mind, with respect, to the corruption of either a proponent or a promoter of the proponent, it bespeaks instead an insistence on keeping open the possibilities which involve the open mind.

So the observer would say this man, the Commissioner, wants to keep open a possibility depending whether he finds corruption or not and, if so, in what regard and, if so, how seriously and, if so, how that should weigh in the public interest involving the mining of coal.  He wants to keep it open pending hearing of evidence, submissions, formation of conclusions and public report, including any recommendations, hence the reference to any – I stress the word “any” – corrupt conduct as being that which in the future might be the subject of a finding, conclusion and recommendation.

It is for those reasons, in our submission, that if, with great respect, there was to be any criticism about the reasons of either the Chief Judge or the Chief Justice – leaving to one side for the moment the shorter concurring reasons of Justices Barrett and Ward in the Court of Appeal – if there is to be any criticism, with great respect, it would be that they in some respects labour at a gnat that the notion that there was displayed some logical connection between the Commissioner’s conduct and words and the possibility of his having a closed mind with respect to findings of corruption really, on all the material, should not have been entertained.

FRENCH CJ:   What is the Commissioner saying at page 88, about line 40 in that paragraph, that link to the previous paragraph in a sense that it is saying that the evidence can be taken into account because it may indicate the possibility of a recommendation which would impact on the decision‑making process?

MR WALKER:   It would not necessarily be that.  Evidence given by witnesses includes many matters of fact.  If someone is sworn and it has

been published that X is the fact during an incomplete investigation that can be taken into account obviously by a planning minister in the same way as the planning minister can take all manner of things into account.  I do not think it is looking forward, with respect, proleptically to a possible recommendation ‑ ‑ ‑

FRENCH CJ:   Not necessarily so.

MR WALKER:   No, not necessarily so.  It certainly would just include – the Commissioner is there talking about evidence.  It certainly relates back to what one sees in the paragraph commencing at line 28 which contains that expression “any corrupt conduct findings”, to which I earlier made reference.  It is for those reasons, in our submission, your Honours, that there is no general point of doctrine raised by this case.  If there were any point of general doctrine, it would rather more powerfully conduce against the applicant rather than for, that is, the question that Justice Hayne has raised.  When one examines the evaluative assessments performed in great detail and with very full reasons by their Honours in the courts below, in our submission, there are insufficient prospects of success to justify a grant.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Hutley.

MR HUTLEY:   Thank you, your Honours . . . statutory provisions to which my learned friend made reference.  Section 16(1)(ii) is conditioned to the principal functions, and that takes one back to the principal functions, and I have taken your Honours through them.  I am not going to go back ‑ ‑ ‑

FRENCH CJ:   That is principal functions relating – other principal functions, I think.

MR HUTLEY:   Yes, in exercising its other principal functions, et cetera.  So in effect, it is associated with the exercise of the principal functions.  The incidental power being the first time it is mentioned and not considered by the courts, in our respectful submission, cannot lift this case above its absence of function, being a function to promote public requests to it to deal with topics fully within its powers, in our respectful submission.  There is no necessary or reasonable matter which would authorise that to be done. 

It is, in our respectful submission, at heart, antithetical to the subject – the principal object is that there be an independent and accountable organisation so that one, in effect, we say, then one comes back to the events on or about the 15th and the writing of the letter and, in our respectful submission, nothing said by my learned friend, whose submissions were principally directed to the events of the 31st rather than

the events of the 15th, detracts from our submissions, in our respectful submission.

When one moves to the 31st, one has to first, as we made submissions below, look at it as a continuum, and if there be an error at the outset, as we say there fundamentally is, one has to consider that conduct together with the conduct which took place in open court which we said, having regard to the past conduct, gave rise to an apprehension of bias.  That was dealt with by the court at, I think, paragraph 196 of the judgment of the Chief Justice at application book 155, that since none of the conduct away from the inquiry could give rise to an apprehension, it was unnecessary nothing which transpired in the open commission could alter that position. 

So in other words if, as we submit, the heart of the problem lies at the first step as to what might be drawn from the “beyond power” approach to the Premier’s Department, we say the flaw flows through the balance of the judgment and its consideration.  That is why we say one has to address that question at the outset and, in our respectful submission, the court erred in the way that we have indicated in its approach by, in effect, considering that section 13(1)(b) warranted the approach, and that being the case, the judgment was flawed and it does create an appropriate vehicle to consider the position of this body, which is an important body – an administrative and investigative body – subject to the obligations accepting, as we do, that one has to take the body with all its powers and roles, but still it is common ground that role requires an obligation not to prejudge in the requisite sense - determinative sense the outcome of an inquiry, a public inquiry. 

It is to that inquiry, which has been common ground in point of principle at all stages that we say this case creates a vehicle for your Honours and the Court to consider the extent of the process of reasoning which will inform a conclusion of prejudgment.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Hutley.  The Court will adjourn briefly to consider what course it should take.

AT 12.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.19 PM:

FRENCH CJ:   The applicant seeks special leave to appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal in which the applicant contended that the first respondent, the Commissioner, while conducting an inquiry under the Independent Commission Against Corruption Act 1988 (NSW) engaged in conduct involving communications with the Executive Government of New South Wales which might have given rise to a reasonable apprehension of bias in connection with his conduct of the inquiry.

The applicant contends that the Court of Appeal failed to apply the correct test for determining apprehended bias and, in any event, erred in failing to find that it was permissible and relevant to have regard to what a fair‑minded and informed lay observer might understand to have been the Commissioner’s motivations in engaging in the conduct referred to.  The applicant also takes issue with the evaluation by the Court of Appeal of the question whether a fair‑minded and informed lay observer might apprehend that the Commissioner might have had a closed mind on various issues the subject of the inquiry.

The Court of Appeal applied the test stated by this Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 for determining whether a judge is disqualified from hearing and determining proceedings for apprehension of bias. Whether some modification of the principle about prejudgment stated in Ebner might be made in respect of public inquiries made under the Independent Commission Against Corruption Act 1988 by the Commissioner appointed under that Act who neither acts nor is required to act in exercise of judicial power is a question which need not be examined.

In its application of the Ebner test to the facts of this case, the conclusions drawn by the Court of Appeal were reasonably open.  No ground for the grant of special leave is demonstrated.  Special leave will be refused.  The applicant is to pay the third respondent’s costs of the application.  It follows that the summons for orders restraining the first and second respondents from delivering the second respondent’s report in respect of the relevant inquiry will be dismissed, with the applicant to pay the third respondent’s costs of the summons.

Court will now adjourn to 10.15 on 6 August in Canberra.

AT 12.21 PM THE MATTER WAS CONCLUDED