Independent Commission Against Corruption v Kinghorn

The Independent Commission Against Corruption (ICAC) sought to set aside consent orders made in the Supreme Court of New South Wales. The dispute concerned the ICAC's application to have these consent orders, which had been entered but were to be treated as not entered, rescinded. The primary issue was whether the court had the power to set aside consent orders where there was no mistake or misapprehension in the agreement to those orders.

The Court of Appeal of New South Wales was required to determine whether it possessed the power to set aside consent orders in circumstances where the parties had unqualifiedly agreed to them, and there was no allegation of mistake, misrepresentation, or duress. A further question arose as to whether a retrospective change in the law, which revived the availability of an appeal, could justify setting aside orders that were agreed to when such a change was only in prospect. The court also considered whether reliance on potential anomalies in statutory operation or an interest in resolving a dispute about the interpretation of a statute could form a basis for setting aside consent orders.

The court held that it did not have the power to set aside consent orders simply because a party later wished to appeal or because of a change in the law, particularly when the agreement to the orders was unqualified and made with knowledge of the law's potential alteration. The court emphasised that consent orders represent a contract between the parties, and their inherent jurisdiction to set aside such orders is limited to cases involving vitiating factors such as fraud, collusion, or a mutual mistake. The court found no basis to depart from the general principle that consent orders, once made, are binding and cannot be set aside at the whim of a party, even if they later perceive strategic advantages or disadvantages.

The notice of motion filed by the applicant on 7 May 2015 was dismissed with costs.