McCloy v Latham - [2015] NSWSC 1879

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McCloy v Latham [2015] NSWSC 1879
Hearing dates: 12 November 2015 and 13 November 2015
Date of orders: 10 December 2015
Decision date: 10 December 2015
Jurisdiction: Common Law
Before: McDougall J
Decision:
Summons dismissed with costs

Catchwords: ADMINISTRATIVE LAW – judicial review – apprehended bias – where plaintiff was a witness in an inquiry conducted by the Independent Commission Against Corruption – where he alleges that the Commissioner might not bring an open mind to the question of what, if any, findings to make in respect of him – applicable test of whether a fair-minded lay observer might reasonably apprehend the same – where the conduct complained consisted of numerous episodes before and during the ICAC proceedings – where no episode alone could give rise to a reasonable apprehension – result that the cumulative effect of the episodes together could not do so – where much of the conduct referable to counsel assisting, rather than the Commissioner – whether attributable to the Commissioner – where many episodes explicable by reference to context – where, in any event, no rational connection was demonstrated between impugned conduct and the allegation that the Commissioner would not bring an open mind to her task – consequence that observer could not reasonably form the apprehension suggested
Legislation Cited: Civil Procedure Act 2005 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Election Funding, Expenditure and Disclosures Act 1981 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Independent Commission Against Corruption Amendment Act 2015 (NSW)
Police Integrity Commission Act 1996 (NSW)
Cases Cited: Aristodemou v Temby (Grove J, 14 December 1989, unreported; BC8901329)
Browne v Dunn (1893) 6 R 67
Donaldson v Wood (Hunt CJ at CL, 12 September 1995, unreported; BC9507330)
Duncan v Independent Commission Against Corruption (2014) 311 ALR 750
Duncan v Ipp (2013) 304 ALR 359
Dunghutti Elders Council (Aboriginal Corporation) v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 279 ALR 468
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Glynn v Independent Commission Against Corruption (1990) 20 ALD 214
Isbester v Knox City Council (2015) 89 ALJR 609
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Lee v Cha [2008] NSWCA 13
McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504
R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
R v Vos (2011) 223 A Crim R 316
Category: Principal judgment
Parties: Jeffrey Raymond McCloy (Plaintiff)
The Honourable Megan Latham (First Defendant)
Independent Commission Against Corruption (Second Defendant)
Attorney-General for New South Wales (Third Defendant)
Representation:
Counsel:
I D Faulkner SC / R L Gall (Plaintiff)
N J Williams SC / B Kremer / D Hume (Defendants)
Solicitors:
Toomey Pegg (Plaintiff)
Corrs Chambers Westgarth (First and Second Defendants)
Crown Solicitor’s Office (Third Defendant)

File Number(s): 2015/263337

Judgment

HIS HONOUR: The plaintiff (Mr McCloy) seeks relief in the nature of prohibition against the second defendant (the Commission). In substance,…

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.

Continue reading McCloy v Latham

Details

AGLC: McCloy v Latham [2015] NSWSC 1879
Case: [2015] NSWSC 1879
Decision Date: 10 December 2015

CaseChat Overview and Summary

McCloy v Latham is a case before the court concerning a challenge to the impartiality of the Commissioner of the Independent Commission Against Corruption (ICAC) by the plaintiff, McCloy, who was a witness in an inquiry conducted by ICAC. McCloy argues that the Commissioner might not bring an open mind to the findings of the inquiry against him, raising issues of apprehended bias. The court was tasked with determining whether the Commissioner's conduct could reasonably lead a fair-minded lay observer to apprehend bias.

The central legal issue was whether the cumulative effect of the Commissioner's conduct during the ICAC proceedings could lead a fair-minded lay observer to apprehend bias. The court examined the conduct in question, which consisted of numerous episodes both before and during the ICAC proceedings, and found that none of these episodes, taken individually, could reasonably lead to such an apprehension. The court also considered whether the conduct of counsel assisting, rather than the Commissioner herself, could be attributed to the Commissioner. Much of the conduct in question was found to be explicable by the context of the proceedings. The court further examined whether there was a rational connection between the impugned conduct and the allegation that the Commissioner would not bring an open mind to her task.

The court concluded that the cumulative effect of the episodes did not lead to a reasonable apprehension of bias. The court found that the many episodes were explicable by the context of the proceedings, and no rational connection was demonstrated between the impugned conduct and the allegation of bias. Consequently, the court ruled that a fair-minded lay observer could not reasonably form the apprehension suggested by McCloy. The court dismissed the application for judicial review.

Orders