In the matter of an application
[2024] ACTSC 214
•5 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application by Joshua Ceramidas |
Citation: | [2024] ACTSC 214 |
Hearing Date: | 5 July 2024 |
Decision Date: | 5 July 2024 |
Before: | Elkaim AJ |
Decision: | (1) The application for an injunction in terms of Order 4 of the interlocutory relief sought in the originating application filed on 1 July 2024 is rejected. (2) The suppression orders made on 1 July 2024 are continued until further order. (3) I will hear the parties in relation to any application for costs. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Application for urgent interlocutory injunction where Commission intends to receive submissions from Counsel Assisting in public – where statute does not specifically refer to submissions – whether implicit in the statute is power to order submissions to be heard in public – whether plaintiff has established a serious question to be tried – balance of convenience – where majority of evidence heard by Commission was heard in public |
Legislation Cited: | Human Rights Act 2004 (ACT) s 30 |
Cases cited: | Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 |
Parties: | Joshua Ceramidas (Plaintiff) ACT Integrity Commission (Defendant) |
Representation: | Counsel S Palaniappan (Plaintiff) B D Kaplan (Defendant) |
| Solicitors Kamy Saeedi Law (Plaintiff) ACT Integrity Commission (Defendant) | |
File Number: | SC 224 of 2024 |
ELKAIM AJ:
On 1 July 2024, the plaintiff filed an originating application seeking judicial review of a decision and the conduct of the first defendant. I will hereafter refer to the first defendant as the defendant because, by consent, I removed the second defendant from the proceedings on 1 July 2024.
In addition to the orders for judicial review, the plaintiff also sought interlocutory relief pending the outcome of the substantive proceedings. Orders 2 and 3 of the interlocutory orders claimed were made on a consent basis, but only until further order.
The request for Order 4 was stood over until today, in order to give the parties time to prepare their evidence and submissions. Order 4 is as follows:
An interlocutory temporary injunction injuncting the first defendant from live streaming, conducting in public, or otherwise distributing the oral and written closing submissions until further order of this Court.
The matter having been adjourned until today, and the parties making oral submissions, the time left for the preparation of a judgment was limited. My reasons endeavour to provide the parties with the basis for my decision, and in particular, to inform the losing party of the reasons for its loss.
The application for an injunction is supported by two affidavits of Mr Kukulies-Smith affirmed on 28 June 2024. There is both an open affidavit and a confidential affidavit of the same date. Mr Kukulies-Smith is the plaintiff’s solicitor. The defendant relies on an affidavit of Mr Stafford Whitfield, affirmed on 3 July 2024. Mr Whitfield is a lawyer employed by the defendant.
I summarise the background to the current proceedings in this way:
(a)The first defendant is an integrity commission established by the ACT Government. According to its Factsheet:
The Commission was established to investigate, expose, and prevent corruption in the ACT public sector and foster public confidence in the integrity of government.
(b)The guiding legislation for the commission is the Integrity Commission Act 2018 (ACT) (the Act).
(c)One of the ways in which the defendant performs its role is to conduct investigations into facts which might expose corruption.
(d)Operation Kingfisher “is an investigation into whether public officials within the ACT Education Directorate fail to exercise their official functions honestly and/or impartially when making recommendations and decisions regarding the Campbell Primary School Modernisation Project between 2019 and 2020.” (Affidavit of Mr Kukulies-Smith).
(e)On 31 July 2023, the defendant published a decision stating that “an examination in relation to Operation Kingfisher will be held in public”. The decision was made pursuant to s 143 of the Act, which subject to the balance of the section, states:
(1)An examination may be held in public or private.
(f)The reasons for the decision made on 31 July 2023 contained a witness list. The plaintiff was not included.
(g)On 21 August 2023, the plaintiff received a summons to attend a public examination, to be held on 6 September 2023. The plaintiff made a request that he not appear, for medical reasons. The request was granted.
(h)On 5 September 2023, the plaintiff provided the defendant with a written statement.
(i)On 19 December 2023, the defendant published a media release which said that the “oral submission process will operate similarly to the public examinations, and that they will be live streamed and transcripts available on the Commission’s website. During this process, legal representatives for affected parties will orally address the Integrity Commissioner, as will Counsel Assisting the Commission.”
(j)The “oral submission process” is due to take place on 8 July 2024.
(k)On 1 May 2024, the defendant provided the plaintiff with a copy of Counsel Assisting’s written submissions, together with a notice that the submissions were not to be disclosed.
(l)Consistent with the direction to not disclose the written submissions, they have not been included in the ‘open’ affidavit of Mr Kukulies-Smith. He does however state, at [20], that “[t]he submissions raised a number of matters regarding the plaintiff”. It is very clear that the plaintiff is a person closely involved in the factual background to the investigation.
(m)Mr Kukulies-Smith, on behalf of the plaintiff, corresponded with the defendant expressing concerns about the public nature of the forthcoming hearing of submissions, and ultimately provided a written submission on 30 May 2024.
(n)The defendant rejected the plaintiff’s concerns by a decision made on 6 June 2024. This is the decision which the plaintiff says is susceptible to review.
(o)The defendant maintains the intention to proceed as planned on 8 July 2024.
The test for the granting of interlocutory relief was recently re-stated by the Chief Justice in In the matter of an application by Leanne Cover [2024] ACTSC 197 (In the matter of an application), at [6]:
The principles to be applied in determining whether to grant interlocutory injunctive relief are well settled. The plaintiff must establish two things: first, that there is a serious question to be tried and, secondly, that the balance of convenience favours granting the relief sought: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65].
As in the matter before the Chief Justice, the defendant submitted that the principles stated should be extended so that “the party seeking interlocutory injunctive relief must meet a higher threshold – ‘a probability, even a distinct probability of success’”.
The basis for the sterner test was to be found in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 (Castlemaine), at 154:
However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned.
10. The Chief Justice, in In the matter of an application, stated, at [8]:
The remarks of the Acting Chief Justice in Castlemaine 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.
11. I take her Honour’s comment to be an endorsement of the Castlemaine approach. The plaintiff pointed out that her Honour was dealing with an application to halt the performance of a mandatory obligation imposed on the defendant. Her Honour said at [3]:
Section 213 of the Act imposes a statutory obligation on the Commissioner, upon completion of a special report, to present it to the Speaker of the Legislative Assembly who, in turn, must present it to the Legislative Assembly on the next sitting day.
12. The position here may be seen as different. The question of whether submissions should be in public or private is a discretionary choice to be made by the defendant. The defendant is not obliged to take one course or the other.
13. Notwithstanding the distinction, it is also the fact that the making of the injunction would be, as put by the defendant, “an interference with the administration of a statute”. I think the approach that I should take is that there should be a probability of success, although not necessarily a distinct probability of success.
Is there a serious question to be tried?
14. The grounds for judicial review are effectively split into two parts. Primarily, however, the grounds revolve around the validity of the first ground. This is:
The decision made by the first defendant and the proposed conduct are not authorised under the Integrity Commission Act 2018 (ACT).
15. The decision referred to in Ground 1 is the decision made on 6 June 2024, rejecting the plaintiff’s request that the public hearings scheduled for 8 July 2024 be held in private.
16. The plaintiff submitted that the defendant simply does not have, under the Act, the power “to have directed that the closing submissions process be conducted in public”. There is no dispute that the Act does not contain a specific provision stating that closing submissions may be made in public.
17. The plaintiff pointed out that there was no equivalent to s 31(10) of the relevant New South Wales legislation (the Independent Commission Against Corruption Act 1988 (NSW)) which states, in part:
… [t]he Commission may decide to hear closing submissions in private.
18. While a similar provision would have been of assistance in this matter, it is also to be observed that the New South Wales Commission clearly contemplates the hearing of submissions in public as well as private.
19. The defendant submitted that it was implicit in the terms of the Act that a power to order that submissions be heard in public must exist.
20. The primary point made by the plaintiff was that the Act, in pt 3.6, was concerned with “examinations”, and examinations did not include final submissions. The word “examinations” is not defined in the Act. There is also no separate part of the Act that is devoted to submissions as opposed to examinations.
21. The defendant submitted that the starting point was the objects of the Act, as stated in s 6, which included the investigation of corrupt conduct and then the general power contained in s 100 to conduct an investigation. The argument then continued that pt 3.6 was the mechanism for conducting investigations and included a number of provisions that were consistent with the inclusion of submissions within “examinations”.
22. In other words, submitted the defendant, examinations necessarily, if not obviously, included submissions. Therefore, if s 143 gave a power to have an examination in public or private then that power extended to having submissions in public or private. In aid of its submissions, the defendant pointed, for example, to s 142, which dictates the “[c]onduct of examinations” and includes at sub-s (1)(d) and (e) the following:
(1)In conducting an examination, the commission—
…
(d)must exercise its functions with as little formality and technicality as is possible and, in particular-
(i) must accept written submissions as far as possible; and
(ii) examinations must be conducted with as little emphasis on an adversarial approach as is possible; and
(e)may do whatever it considers necessary or convenient for the fair and prompt conduct of the proceeding.
The reference to written submissions, submitted the defendant, was a clear indication that an examination included submissions. In addition, the power given in s 142(1)(e) is very broad, and would encompass submissions. The defendant also relied upon the word “proceeding” to indicate the inclusion of submissions.
The plaintiff countered the defendant’s justification of the decision made on 6 June 2024 with the following points.
The plurality of the High Court (Kiefel CJ, Bell and Nettle JJ) observed in SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137 (Miles), at 149 [20], that:
The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.
(Citations omitted.)
The plaintiff submitted that “Part 3.6 of the Act is directed to ‘examinations’ and the conduct and procedure concerning those examinations, but does not in terms extend to holding public hearings distinct from and outside of those examinations.” The plaintiff gave, as an example, s 147 of the Act, stating that the defendant might be able to issue a summons to compel a person to give evidence or produce a document to the commission, but that did not mean that a summons could be issued to force a person to appear for closing submissions. This emphasised the restriction of examinations being confined to the giving of evidence and not extending to submissions.
The plaintiff further submitted that the coercive nature of the Act required that “matters of privacy, including reputation of the relevant person to be examined, be kept at the fore…”, as highlighted by, for example, ss 6c, 79, 143(2)(b), 154(1)(a), 184(1) and 204. Each of these provisions highlighted the importance, even the preference, for the protection of a person’s rights and reputation.
A section relied upon by the plaintiff which I think requires specific mention is s 166. The section relates to contempt in dealings with the Commission during examinations. The plaintiff posed the question of how such a provision could contemplate contempt during submissions, thus supporting its point that examinations did not include submissions. In my view, acts of contempt could readily be envisaged during submissions, perhaps by remarks made or conduct in the hearing room. Section 166, like the other sections mentioned by the plaintiff, might tend to suggest that submissions are not contemplated, but do not exclude their inclusion under the broad umbrella of examinations.
The plaintiff correctly pointed out that it was not necessary for me to decide this conflict in statutory interpretation. I agree. The plaintiff also said that it was enough for me to be satisfied that there was a serious question to be tried, and that my satisfaction level need not go beyond “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”. I disagree. I think there needs to be a higher degree of satisfaction, at least to the extent of probability.
Going back to the principles stated in Miles, I think the following:
(a)The examinations covered by Part 3.6 of the Act include the giving of evidence both in public and in private.
(b)Submissions are a necessary attachment to the giving of evidence. It would be a massive denial of procedural fairness if submissions were not permitted following the giving of evidence.
(c)There is no separate part of the Act that deals with submissions as distinct from examinations or evidence.
(d)There are portions of pt 3.6 which specifically cater for the making of submissions. Section 142(1)(d) is an example.
(e)Section 142(1)(e) provides both a very broad discretion as well as a reference to the “conduct of the proceeding”. The proceeding must include the making of submissions.
In the light of the points I have made in the preceding paragraphs, I am not satisfied that the plaintiff has established to the requisite level that there is a serious question to be tried in respect of the power of the defendant to order that submissions be made in public.
The plaintiff emphasised the extent to which the Act endeavoured to protect the rights of persons until a finding of serious corrupt conduct was made. I was also referred to s 30 of the Human Rights Act 2004 (ACT) which states that:
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
I take the point made by the plaintiff but reiterate that I cannot contemplate an act which allows for investigations not, at the very least implicitly, making provision for the making of submissions following the taking of evidence. To this extent my conclusion might be seen as consistent with s 30.
Apprehended bias
The plaintiff submitted that, should I make the finding I have reached then I should consider grounds 2 to 6 as being relevant to errors made by the defendant in reaching the decision of 6 June 2024.
The plaintiff submitted that these grounds were emphasised by “the denial of procedural fairness by reason of the apprehended bias ground”.
36. The plaintiff quoted from the decision of the High Court in Charisteas v Charisteas [2021] HCA 29; 273 CLR 289, at 296-7 [11]:
The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
(Citations omitted.)
The basis for the allegation of apprehended bias is that the Commissioner, or the Commission, had, on nine occasions prior to 6 June 2024, made statements, sometimes by way of “updates” or media releases to the effect that submissions would be held in public. The plaintiff submitted that as a result:
….in this case what might be said to have led the Commissioner to decide the case other than on its legal and factual merits is that there were at least nine separate occasions in which the Commission (including the Commissioner) confirmed that there would be closing submissions via public hearings. The logical connection between the issuing of those communications including media releases and updates and the feared departure from the Commissioner deciding the case on its merits is that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the issue for fear of not embarrassing or inconveniencing himself or the Commission’s staff when they had, through these communications, publicly charted a course that there would be public hearings for closing submissions as far back as December 2023, and as recently as 21 May 2024, after the Commissioner had asked for written submissions but before he had received those submissions or determined the issue.
In essence, the plaintiff was submitting that having made so many statements of intent, including one before submissions were received from the plaintiff, the defendant ‘locked itself’ into a position from which it would be embarrassing to depart.
Further, the plaintiff submitted that he had been denied procedural fairness by not giving him a hearing under s 146(5) of the Act, noting that subsection (4) allows a person who is required to attend an examination to ask that that part of the examination be held in private.
The submission made concerning s 146(5) is to some degree inconsistent with the plaintiff’s primary case that pt 3.6 of the Act does not relate to submissions. Nevertheless, I understand the submission to be in the alternative so that the inconsistency can be ignored.
In my view the plaintiff’s assertion of apprehended bias requires a quantum leap from statements about a position (the nine previous iterations) to a fear that the decision on 6 June 2024 was not made on its merits, but rather had been dictated by the previous statements. I think, from the decision itself, that a full consideration of the merits of the plaintiff’s argument was conducted.
I am not satisfied that there is, effectively, to a lay observer, an inappropriate connection between the earlier statements of intention and the decision on 6 June 2024. It is also to be remembered that the lay observer is not ignorant of the background to the matter. I reject the assertion of apprehended bias.
I do not need to deal with the assertion that reliance on apprehended bias has been waived. However, in support of the defendant’s position I think the following statement from Smits v Roach [2006] HCA 36; 227 CLR 423, at 439 [43], is applicable.
It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result.
I would, however, add that I do not regard the comments made in the transcript of 8 December 2023 on behalf of the plaintiff’s representative as being any more than taking a neutral stance, and certainly did not amount to a concession about the existence of a power to have submissions in public.
Balance of convenience
There is now no need for me to consider whether or not the balance of convenience favours the granting of the interlocutory relief. I do, however, make the following comments.
The plaintiff says that the balance of convenience favours him because of the necessity to avoid reputational damage. Even if he were to be exonerated, he says, the allegation of serious corrupt conduct, even without more, could not be undone.
The plaintiff submitted that there was “a real chance the Commissioner will not find that he has engaged in serious corrupt conduct” so that a public hearing will not give him the benefit of such a finding. The stain of the allegation will remain no matter how comprehensively he is cleared.
Against this consideration, the plaintiff submitted that there was much less inconvenience to the defendant because the application was not that the submissions be delayed, only that they “be made private in the first instance”. The plaintiff added that he “is not opposed to the proceedings being recorded and publicly released as and when these judicial review proceedings are completed should he be unsuccessful”.
The defendant accepted that reputational damage might flow from public submissions but said that any closing submissions were “unlikely to be any more detrimental to the reputation of the plaintiff than the evidence given to date by witnesses in public examinations”. In other words, because the evidence about which submissions would be made had been given in public, the submissions themselves could do no further harm.
The defendant pointed out that “almost all” of the evidence that might affect the plaintiff’s reputation was already in the public arena.
I think the defendant’s point is valid. Had the evidence been taken privately I would have preferred the plaintiff’s submission. However, because the evidence was taken in public examinations, I do not see the submissions as going beyond the extrapolation from what is already publicly known.
Accordingly, I reject the submission that the balance of convenience favours the granting of the requested injunction.
One matter that I have not covered in these reasons is the defendant’s assertion that I lacked jurisdiction to consider the application for judicial review. In the light of my conclusions as expressed above I do not think it necessary to deal with this point. However, I should state that my preliminary view is that jurisdiction does exist.
Orders
I make the following orders:
(1)The application for an injunction in terms of Order 4 of the interlocutory relief sought in the originating application filed on 1 July 2024 is rejected.
(2)The suppression orders made on 1 July 2024 are continued until further order.
(3)I will hear the parties in relation to any application for costs.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim. Associate: Date: 25 July 2024 |
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Amendments
5 August 2024 Replace “DF1 (a pseudonym)” with “Joshua Ceramidas” under Parties.
5 August 2024 Replace the title of the judgment “In the matter of an application [2024] ACTSC 214” with “In the matter of an application by Joshua Ceramidas [2024] ACTSC 214.
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