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, the relief sought is an order restraining the Commission from continuing with, or reporting upon, an investigation conducted by it known as “Operation Spicer”, at least while the first defendant (the Commissioner) is presiding over that investigation, and at least in so far as any further hearing or report might concern Mr McCloy. Mr McCloy alleges that there are reasonable grounds for apprehending that the Commissioner might not bring an open mind to the resolution of the question of what, if any, findings to make in respect of him.
The Commissioner and the Commission have submitted, save as to costs. The Attorney-General sought and was granted leave to be joined as a defendant. She appeared by Counsel, to act as a contradictor.
For the reasons that follow, Mr McCloy’s case fails. The summons must be dismissed with costs.

Background

The Commission is established, and the Commissioner was appointed, pursuant to the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). In 2014, the Commission conducted two investigations, known as Operation Spicer and Operation Credo. They were conducted on the basis that evidence in one would be, to the extent it was relevant, evidence in the other. Mr McCloy was involved only in the Operation Spicer investigation.
The public inquiry in Operation Credo was conducted over 23 days, from 17 March to 16 April 2014. The public inquiry in Operation Spicer was conducted over 43 days, from 28 April to 12 September 2014.
Mr McCloy was not called to give evidence in the Operation Credo public inquiry. Nor was he called to give evidence in the first tranche of the Operation Spicer public inquiry (which ran for 17 days, from 28 April to 20 May 2014). He was called in the second tranche of the Operation Spicer inquiry (which ran from 6 August to 12 September 2014). In fact, he was called twice: first on 14 August 2014, and then on 12 September 2014.
Operation Credo concerned allegations of corruption against a number of people, including three Australian Labor Party members of the Parliament (and former Ministers of the Crown) of this State: Mr Tripodi, Mr Obeid and Mr Kelly. Operation Spicer concerned allegations of corruption against a number of people including Liberal Party members of the Parliament of this State, two of whom were, up until the time when they gave their evidence in the public hearing, Ministers of the Crown.
In very general terms, the alleged corrupt conduct that was the subject of Operation Spicer included the giving and receipt of money in exchange for favours; the giving and receipt of money in breach of provisions of the electoral funding laws; and the creation of sham structures to permit prohibited donors to make political donations through vehicles which rendered what purported to be invoices for (legitimate) services rendered to those would-be donors.

Outline of Mr McCloy’s case in this Court

Mr McCloy’s Further Amended Summons filed in Court on the first day of the hearing (for convenience, I will refer to this simply as “the summons”) set out, in grounds comprising 220 paragraphs, matters that, he said, would give rise to a reasonable apprehension of bias. In broad summary, the matters relied upon included:

conduct of the Commissioner before the commencement of the public inquiry in Operation Spicer;

adverse treatment, influenced by what was called a “predetermined case theory”, of a number of witnesses;

unfair treatment, in reliance on a “Practice Direction” issued by the Commission, of witnesses and Counsel;

matters put to witnesses including (but not limited to) Mr McCloy, and in submissions, without a proper factual or legal basis;

alleged refusal to permit questioning on what were said to be “critical facts in issue”, on the basis that unless a positive case were being advanced, the matters could be covered in submissions;

indications of political bias by both Counsel assisting and the Commissioner;

a miscellaneous collection of grounds that included alleged lack of even-handed treatment as between Counsel and otherwise; and the appearance (on the part of Senior Counsel assisting) of a personal interest in the outcome of the inquiry;

another miscellaneous collection of grounds including aspects of want of procedural fairness; asserted failures on the part of Senior Counsel assisting to comply with the Barristers’ Rules; unfairness arising through access to documents and scheduling of evidence; questions without notice and beyond the scope of the inquiry; and other matters.

Grounds concerning matters that occurred in the course of the public inquiry relate to some 28 of the 43 days that the public inquiry occupied. According to the citation of transcript pages in the summons, those complaints relate to 110 pages of a transcript that exceeded 5000 pages in length. As I have noted, no complaint is made in respect of the public inquiry in Operation Credo (the transcript for that inquiry runs to some 2600 pages).
The public inquiry in Operation Spicer was intensely political. The politicians whose conduct was in question included Liberal parliamentarians, two of whom, as I have said, were at the time Ministers of the Crown. The allegations made against them were extremely serious. The hearings generated a substantial amount of dispute. That is hardly surprising, bearing in mind both the nature of the allegations made and the fact that the investigation into those allegations was, if not fatal, at least extremely damaging to the careers of those against whom they were made. The two Ministers whose conduct was under examination felt obliged to resign their portfolios. The Liberal parliamentarians whose conduct was the subject of inquiry resigned from the Party, and moved to the cross-benches.
It is apparent from the transcript alone that the hearings were heated, and at times intensely confrontational. It is apparent even from the transcript that the heated and confrontational nature of the hearings resulted in more than the usual amount of sniping, or sledging, between the numerous members of the Bar (many, Senior Counsel) who appeared with leave to represent the interests of their various clients. Those impressions are confirmed – indeed, strengthened – by viewing the video recording of parts of the hearing. All those matters must be assessed, in deciding whether the matters upon which Mr McCloy relies are capable of founding the necessary reasonable apprehension of bias.

Structural flaws in the articulation of Mr McCloy’s case

It is necessary to say a little about the way that the case for Mr McCloy was conducted. It was not his case that any one, or indeed any one group, of the grounds on which he relied was of itself sufficient to give rise to a reasonable apprehension of bias. His case was that it was the cumulative effect of all the matters alleged that had this result. However, it seems to me that if, among the grounds, something alleged is inherently incapable of creating a reasonable apprehension of bias, then the fact that it is combined with other matters that may contribute towards that apprehension does not add anything. To take an extreme example: if, upon examination, none of the matters relied upon could excite a reasonable apprehension of bias, neither could the combination of all those matters together do so.
Again at a level of some generality: the grounds based on the existence of a predetermined case theory have the unusual feature that the case theory is not articulated anywhere in the summons. Thus, although on numerous occasions it is said that something was done consistently with, or to advance, that case theory, the nature of the case theory is not spelled out. The reader is left to go to the outline submissions in support of the summons to find out what the case theory is. It is (and I quote from [32] of those submissions):

that there was a case theory of the Commissioner and Counsel Assisting that the following persons engaged in wrongdoing (leading to a finding of corrupt conduct and reference to the DPP) and that publicly demonstrating this or making findings of this nature against the following persons was a priority of Operation Spicer, and in so far as other persons were involved, findings against them was [sic] secondary… .

The “following persons” included Mr McCloy and many other witnesses (one of whom at least was a Labor Party member of parliament, and a minister in a former Labor Government).
Two points may be made immediately. The first is that the statement of the nature or content of the case theory is, with all due respect to those who propounded it, unilluminating. The second, and more substantive, point is that it would be quite extraordinary if a body having the powerful and important investigative and reporting functions of the Commission were to launch an investigation, and as part of that inquiry conduct lengthy public inquiries (with all the risk to reputation and pocket involved), without having at least a “case theory” that the subject matter of the investigation involved corrupt conduct within the remit of the Commission to consider, and that the persons to be examined at the public inquiry might reasonably be suspected of having been engaged in that corrupt conduct.
To say that an investigative body such as the Commission has a “case theory” at the stage when it decides to conduct a public hearing is to do no more than say that, in that body’s view, on the basis of information already garnered, there is a reasonable basis for holding the public hearing. I do not understand how it could be a criticism of such a body to have formed that view if it were one reasonably open on the evidence that it had garnered (and the submissions for Mr McCloy did not submit that such a view was not, at least prima facie, open to the Commission in this case).
In truth, if the “case theory” allegations are to go anywhere, it must be on the basis that the Commissioner was so firmly wedded to the case theory that she was, or had become, incapable of bringing an independent evaluative mind to all the evidence gathered, and of considering whether, on the basis of all that evidence, the case theory could be maintained.
Again at a level of generality, many if not most of the grounds stated in the 220 paragraphs of the summons are difficult to take at face value. Where complaints are made as to matters that occurred in the course of the hearing, the drafting technique involves picking out one comment, or a series of comments, in the course of the particular incident, and ascribing a particular characterisation to those comments. One consequence of that drafting technique is that the particular matters complained of are taken out of context. When the matters complained of are examined in context, they lose much (in many cases, all) of the sinister significance ascribed to them in the summons. I shall illustrate this by considering in detail a particular group of complaints.
Again, the articulation of Mr McCloy’s case, as it is done in the summons, makes no real attempt to come to grips with the essential differences between an inquisitorial body such as the Commission, and an adjudicative tribunal, such as this Court, charged with determining the outcome of adversarial litigation. Thus, in many cases, the submissions for Mr McCloy relied on statements of principle relevant to adversarial litigation, without considering the extent to which those statements might be capable of application, with or without modification, to an inquisitorial investigation conducted by the Commission. Further, in many cases, the submissions failed to take account of the statutory framework regulating the Commission’s activities.
Many of the complaints made by Mr McCloy in the grounds, and advanced in the submissions in support of those grounds, involve the attribution to the Commissioner of questions asked (and comments made) by Counsel assisting – usually, I think, Senior Counsel assisting. I do not mean that the grounds misread the transcript, and wrongly suggested that a question asked by Counsel assisting was in fact one asked by the Commissioner – although this mistake did occur on at least one occasion (ground [28] – see at [150] below). Rather, I mean that it was submitted for Mr McCloy that, as a matter of law based on the proper construction of the ICAC Act, questions asked by Counsel assisting were deemed to be asked by the Commissioner, and thus must be regarded in law as her questions.
That approach permeates the grounds and the submissions. It is based on a reading of the decision of the Court of Appeal in R v Vos (2011) 223 A Crim R 316, dealing with analogous legislation (the Police Integrity Commission Act 1996 (NSW) – the PIC Act). However, in my view, that reading is fallacious. I return to this topic at [79] below.
Many of the grounds, and of the submissions in support of the grounds, took a contested view of the facts or of the law as the starting point for the particular allegation of apprehension of bias. In effect, those grounds and submissions invite the Court to delve into the merits of the factual and legal issues to which they referred. That is not the function of this Court exercising the power of judicial review. Findings as to the facts, including findings as to who to believe and why, and what inferences to draw from facts found proved, are for the tribunal of fact – in this case, the Commission, acting though the Commissioner. Equally, resolution of the disputes of law that were raised is a matter for the Commissioner. To the extent that resolution of a complaint made in the grounds requires this Court to take a view, one way or another, as to what the facts might be or as to what the legal characterisation of facts might be, it is beyond the province of judicial review.
Finally, in terms of general comments on the flawed articulation of Mr McCloy’s case, the summons makes no attempt to specify:

the possible findings, or classes of finding, in respect of which, it is said, the Commissioner’s mind is closed against the possibility of argument; and

the rational (or any) link between the conduct complained of and those possible findings, or classes of finding.

The first matter is of some considerable significance in Mr McCloy’s case. The investigation has not concluded. The Commission is yet to report. Mr McCloy seeks what is in effect quia timet relief that would prevent it from reporting, at least while the Commissioner presides over the investigation.
As was correctly submitted for the Attorney-General, there is no dispute as to the basic facts as to the making of the payments that were said to have been corrupt. Mr McCloy accepted, in the course of his evidence in the public inquiry, that he had made the payments in question. The matters that remain to be decided include the characterisation of the payments.
Characterisation of the payments might involve the following matters:

Mr McCloy’s intention, or state of mind, in making them;

the intention, or state of mind, of each of the recipients in receiving them;

Mr McCloy’s knowledge of the legality of the payments; and

the knowledge of each of the recipients as to the legality of the payments.

That listed is not intended to be either definitive (that is why I said “might”) or exhaustive. It is, ultimately, a matter for the Commissioner as to what matters she thinks are relevant, in circumstances where, as I have said, there does not appear to be any factual dispute about the making of the payments in question.
Whether or not those payments involve corrupt conduct, and whether or not they involve any other matter that ought be the subject of report, is entirely a matter for the Commissioner. Equally, it is entirely a matter for the Commissioner, as to how she evaluates those payments and the circumstances in which they were made, and as to what matters she takes into account in formulating whatever conclusions she reaches, and recommendations she makes.
Mr McCloy made no complaint of apprehension of bias during the public inquiry. Nor did he do so in his written submissions provided at the conclusion of the hearing. He has chosen to wait until after all evidence had been completed, and submissions had been exchanged. So far as I know he has not applied for the hearing to be reopened, or for any further witness to be called for examination or cross-examination (or for anyone who has given evidence to be recalled for those purposes). In those circumstances, the Attorney-General submitted, Mr McCloy had waived his right to object.
For present purposes, the failure to articulate at all, let alone in any adequate and comprehensible way, either the findings that might be affected by the alleged apprehended bias, or the way in which the matters complained of could rationally effect a consideration of those findings, makes it very difficult to grant quia timet relief.

Approach to resolution of the issues

In dealing with Mr McCloy’s complaints, I shall start by setting out my understanding of the principles relating to apprehension of bias, where the decision-maker is an inquisitorial body having the powers that the Commission possesses, and the functions that the Commission is charged to perform. I shall then turn to the legislative scheme. Then, before turning to some of the grounds in some detail, I shall deal with the Vos fallacy.
I do not propose to deal in detail with each and every paragraph of the grounds. To undertake that task would require an inordinate amount of time, with no consequential benefit in explaining, or facilitating an understanding of, the decision to which I have come.
I propose, instead, to deal with particular groups of complaints, including those relating to the Commissioner’s speech to the Bar Association, the “case theory” complaints, a “Practice Direction” issued by the Commission, and other relatively discrete issues. I do not propose to trawl through all the remaining grounds, particularly in so far as they make complaints based on particular passages in the evidence of particular witnesses. My reasons for not doing so are stated in greater detail at [263] and following below.
Finally, I shall consider in some detail the course and conduct of the public examination of Mr McCloy. It will become apparent that there is nothing in that examination to suggest that he was treated unfairly. He was given, and took, every opportunity to tell his own story in his own words.

Apprehended bias: the relevant principles

The test for apprehension of bias, in the case of judicial officers, was stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] of the plurality judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ):

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

That is the test asserted by Mr McCloy in his summons; see at [3] of the grounds, where it is asserted that:

Cumulatively, the grounds set out below lead to the conclusion that a fair-minded observer might reasonably apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of the questions of what findings to make in and what action to take consequent upon Operation Spicer.

However, the Commission is not a court, and the Commissioner is now not, nor in conducting the public hearing was she acting as, a judicial officer. Thus, as the plurality (Kiefel, Bell, Keane and Nettle JJ) said in Isbester v Knox City Council (2015) 89 ALJR 609 at [22], [23] (omitting citations):

[22] It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
[23] How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

Gageler J agreed with the plurality, and for reasons essentially similar to those the plurality gave. However, his Honour suggested at [59] that the process of analysis involved not two steps (as suggested by the plurality in Ebner at [8]), but three (omitting citations):

Whether or not it might be useful to state the test in that alternative form, the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects. The first is that it is an “objective test of possibility, as distinct from probability”. The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

As was submitted for the Attorney-General, and as Mr McCloy appeared to accept, application of the test to the Commission, and to the Commissioner, must take into account the relevant features of the ICAC Act. I turn to that topic in the next section of these reasons.
In Duncan v Ipp (2013) 304 ALR 359, the Court of Appeal of this State considered the application of the “apprehension of bias” test in a case involving the Commission. Bathurst CJ (with whom Barrett JA agreed) said at [146]:

The manner in which the test is to be applied was set out by the High Court in Ebner at in the passage which I have cited above; see also Michael Wilson & Partners. Translated into the present case, this involves consideration of whether the matters raised by the applicant have a logical connection with the feared deviation by the Commissioner from the course of determining the issues raised in the inquiry on the merits, by virtue of pre-judgment. Pre-judgment in the present case means having a closed mind, in the sense of not being open to persuasion by any additional evidence or submissions from the parties, that the grant of the licence the subject of the inquiry was procured by corruption involving the then Minister for Mines and that the applicant and his associates were beneficiaries of that conduct (the corrupt conduct): McGovern v Ku-ring-gai Council; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72].

Ward JA wrote to similar effect at [221], [222]:

[221] It is not disputed that what was required was that the applicant firmly establish that a fair-minded lay observer, having regard to the conduct identified by the applicant, might reasonably apprehend that the Commissioner might have a closed mind or might not be open to persuasion on the relevant issue or issues for determination by the Commissioner.
[222] While the "double might" test for apprehended bias does not require that prejudgment (or a closed mind) be the inevitable conclusion that a fair-minded lay observer might reasonably reach, it does require that there be a logical or rational connection between the matter that is said might reasonably give rise to an apprehension of bias in the mind of such an observer and the matter in respect of which it is apprehended that the decision-maker might be biased.

In determining whether there is a reasonable apprehension of bias, it is not appropriate to start with the Ebner analysis and then modify the outcome of that analysis to accommodate the particular statutory regime. As Spigelman CJ said in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [6], the relevant statutory scheme “must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach”.
Basten JA made a similar point at [115], noting also the possibility that error might follow from restating “the test applicable to judicial officers in a materially different context”.
As is apparent from what Bathurst CJ said in Duncan at [146], the question is whether the Commissioner’s mind might reasonably be thought to be closed on the key question: namely, has Mr McCloy engaged in corrupt conduct? In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Gaudron and McHugh JJ said at 100 that:

… what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

Of course, the question is one to be dealt with on the balance of probabilities. Nonetheless, it is established by high authority “that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties”: see Dixon CJ, Williams, Webb and Fullagar JJ in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116. Their Honours continued:

The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.

Those remarks are of particular significance where, as here, a plaintiff relies on apprehension of bias to forestall the completion of an investigation by the making of a report. Keane CJ, Lander and Foster JJ said as much in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 279 ALR 468 at [55]:

It will usually be difficult for a party to make a sufficient case to forestall the making of a decision on the ground of apprehended bias. That is because of the expectation that the decision-maker will decide fairly on the basis of the evidence. The difficulty which confronts a litigant who seeks to invoke a reasonable apprehension of bias in order to forestall the making of a decision by a decision-maker appointed by parliament to make that decision is illustrated and explained by the decision of the High Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] ALR 461 (Ex parte Melbourne Stevedoring Company) where the point was made that the existence of a preconceived opinion on the matters in issue is not inconsistent with the making of an unbiased decision on the evidence.

That consideration is relevant to the present case, because of Mr McCloy’s reliance on the “case theory” supposedly entertained by the Commissioner and by Counsel assisting. It is not enough that they should have had a case theory based on investigations undertaken by the Commission (including, in this case, the results of compulsory examinations conducted before the public inquiry). What must be shown is a reasonable apprehension that the case theory was so firmly entrenched in their minds that, by the time of the conclusion of the public inquiry, there existed a reasonable basis for thinking that the Commissioner could not consider on their merits the further evidence given (in the public inquiry) and the submissions put to her, and reach a conclusion, on the essential point, irrespective of the case theory.
It is necessary to say a little about the characteristics of the fair-minded reasonable observer by reference to whose supposed mental processees the test of apprehended bias is considered. Basten JA (with whom Hodgson and Bell JJA agreed) said in Lee v Cha [2008] NSWCA 13 at [43] that “the reference to such a person is no more than the personification of an objective test”. In these reasons, I shall use the expression “the observer” to denote the fictitious person whose supposed reactions and thought processes are said to govern the analysis.
The observer is understood to be a lay person, not a lawyer. However, the observer is taken to be aware of the way in which (in this case) the Commission undertakes its inquiries, and to be aware, in general terms at least, of the various powers that the Commission has to obtain evidence before conducting a public hearing.
Further, because the test requires a conclusion that there is a reasonable basis for thinking that the Commissioner has a fixed mind, not open to evidence or argument, the assessment is to be undertaken having regard to all relevant matters, including (so far as the observer might be thought to have access to it) all relevant material before the Commission. In particular, the observer’s hypothetical view must be one capable of being formed at the conclusion of the hearing, and (perhaps) taking into account the way in which Counsel assisting and Counsel for the various persons involved approached the matter in the course of their written submissions.
The necessity to undertake the analysis at the end of the investigation is important in this case, because Mr McCloy’s evidence was given towards and at the end of the public inquiry. Of all the complaints made as to matters occurring in the course of the public inquiry, four only relate specifically to Mr McCloy’s evidence: three complaints as to matters that occurred during his evidence on 14 August 2014, and one as to a matter that occurred during his evidence on 12 September 2014.
To jump ahead for a moment: a rational consideration of the transcript of the whole of Mr McCloy’s evidence, which puts the matters complained of into their proper context, shows that he was treated with scrupulous fairness by the Commissioner, and given every opportunity by her to state his position. The observer would be aware of those matters, and would take them into account in considering whether, as a result of all the matters on which Mr McCloy relies in his summons, the reasonable apprehension of bias exists.
Counsel’s submissions are in a somewhat different category, because they are the subject of a suppression order under s 112 of the ICAC Act. Accordingly the observer, as a member of the public, would not have access to them, and could not take them into account in deciding whether or not, overall, there is a reasonable basis to apprehend bias. Nonetheless, the parties agreed that the submissions should be put before me, and that I could have regard to them. (They are now the subject of a non-publication order under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).)
Adopting the view that the observer is a personification of the legal test, and that the legal test is one to be applied by (in this case) a judge of this Court, it seems to me that the judge, in applying that test, should be able to take into account relevant material even if it is not available to members of the public. It would be anomalous if material could not be used, even though it might provide a most cogent basis for dispelling an apprehension of bias that might otherwise arise, simply because it is not publically available.
In the result, I have not found it necessary to refer to the submissions put to the Commission. Thus, no problem arises of how to explain a view based on material that is the subject of a suppression order.
I note, before moving to the legislative scheme, that the parties regaled me with citations from authorities ranging far beyond those to which I have referred. I intend no discourtesy either to the parties or to the judges whose decisions were relied upon by failing to mention all the cases cited. I see no point in burdening these lengthy reasons with additional references to authority, in circumstances where the essential principles, as I understand them, emerge from those to which I have referred already.

Relevant provisions of the ICAC Act

Section 2A sets out the principal objects of the Act. I set it out:

2A Principal objects of Act
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:
(i)    to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and
(ii)    to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and
(b)    to confer on the Commission special powers to inquire into allegations of corruption.

The Commission is established by s 4; the appointment of the Commissioner is authorised by s 5; and s 6 authorises the appointment of Assistant Commissioners.
Corrupt conduct is defined in s 7, by reference to ss 8 and 9. It is not necessary to set out those definitions. There was a question as to whether the conduct alleged against Mr McCloy could amount to corrupt conduct. That question focused on the requirement that the conduct amount to a criminal offence (s 9(1)(a)), and that it could involve bribery (s 8(2)(b)). In my view, that question is one for the Commissioner to resolve. If the Court were to go into the merits of the matter, it would be travelling well beyond the proper limits of judicial review.
Section 13 sets out the principal functions of the Commission. There are many. The parties referred to s 13(1)(a)–(e); s 13(2)(a); s 13(3); s 13(3A); and s 13(4). I set out those provisions to which the parties referred:

13 Principal functions
(1)   The principal functions of the Commission are as follows:
(a)    to investigate any allegation or complaint that, or any circumstances which in the Commission’s opinion imply that:
(i)    corrupt conduct, or
(ii)    conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or
(iii)    conduct connected with corrupt conduct,
may have occurred, may be occurring or may be about to occur,
(b)    to investigate any matter referred to the Commission by both Houses of Parliament,
(c)    to communicate to appropriate authorities the results of its investigations,
(d)    to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct,
(e)    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 and the integrity and good repute of public administration promoted,
…
(2)   The Commission is to conduct its investigations with a view to determining:
(a)   whether any corrupt conduct, or any other conduct referred to in subsection (1)(a), has occurred, is occurring, or is about to occur…
…
(3)    The principal functions of the Commission also include:
(a)    the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and
(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.

(3A) The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9 (1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.
(4) The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B or 74BA prevents the Commission from including in a report, but section 9 (5) and this section are the only restrictions imposed by this Act on the Commission’s powers under subsection (3).

Section 74BA (referred to in s 13(4), and introduced by the Independent Commission Against Corruption Amendment Act 2015 (NSW) with effect from 28 September 2015) provides, relevantly, that the Commission must not report on what it thinks is corrupt conduct “unless the conduct is serious corrupt conduct”.
Section 17 deals with matters of evidence and procedure:

17 Evidence and procedure
(1) The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate.
(2) The Commission shall exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission shall accept written submissions as far as is possible and compulsory examinations and public inquiries shall be conducted with as little emphasis on an adversarial approach as is possible.
(3) Despite subsection (1), section 127 (Religious confessions) of the Evidence Act 1995 applies to any compulsory examination or public inquiry before the Commission.

The Commission has wide powers to obtain information, to obtain documents, and to enter public premises (see ss 21, 22 and 23). It also has power to procure the issue of search warrants, and to cause them to be executed (ss 40 and following). It is not necessary to set out those provisions.
I should note, although the parties I think did not refer to it, that s 20A deals with the topic of “preliminary investigations”. It provides that the Commission may conduct a preliminary examination for purposes including to decide whether to conduct more a complete investigation. It is obvious that, should the Commission exercise its powers under s 20A, the outcome will be the formation of an opinion that further investigation is, or is not, warranted.
Section 30 deals with compulsory examinations, and s 31 with public inquiries. I set out those sections:

30 Compulsory examinations
(1)   For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a compulsory examination.
(2)    A compulsory examination is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.
(3)    A person required to attend a compulsory examination is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation or complaint being investigated.
(4)    A failure to comply with subsection (3) does not invalidate or otherwise affect the compulsory examination.
(5)    A compulsory examination is to be conducted in private.
Note : Section 17 (2) requires the Commission to conduct compulsory examinations with as little emphasis on an adversarial approach as possible.
(6)    The Commission may (but is not required to) advise a person required to attend a compulsory examination of any findings it has made or opinions it has formed as a result of the compulsory examination.
31 Public inquiries
(1)    For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry.
(2)    Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following:
(a)    the benefit of exposing to the public, and making it aware, of corrupt conduct,
(b)    the seriousness of the allegation or complaint being investigated,
(c)    any risk of undue prejudice to a person’s reputation (including prejudice that might arise from not holding an inquiry),
(d)    whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.
(3)    An Assistant Commissioner may determine to conduct a public inquiry only with the concurrence of the Commissioner. However, concurrence is not required if the Commissioner would or might have a conflict of interest in relation to the inquiry.
Note : Powers of the Commission under this Division may be delegated to an Assistant Commissioner under section 107 (5) (e).
(4)    A public inquiry is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.
(5)    At a public inquiry, the person presiding must announce the general scope and purpose of the inquiry.
(6)    A person required to attend a public inquiry is entitled to be informed of the general scope and purpose of the public inquiry and the nature of the allegation or complaint being investigated before or at the time the person is required to appear at the inquiry.
(7)    A failure to comply with subsection (6) does not invalidate or otherwise affect the public inquiry.
(8)    A public inquiry is to be held in public.
(9)    Despite subsection (8), the Commission may decide to hold part of the inquiry in private if it considers this to be in the public interest.
(10)    Without limiting subsection (9), the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel.
Note : Section 17 (2) requires the Commission to conduct public inquiries with as little emphasis on an adversarial approach as possible.

By s33, a person giving evidence in a compulsory examination or public inquiry may have legal representation if so authorised by the Commission. By s 34, both Counsel assisting the Commission and persons authorised to appear for a witness may examine and cross-examine:

34 Examination and cross-examination
(1) An Australian legal practitioner appointed by the Commission to assist it, or a person or a person’s Australian legal practitioner authorised to appear at a compulsory examination or public inquiry, may, with the leave of the Commission, examine or cross-examine any witness on any matter that the Commission considers relevant.
(2) Any witness so examined or cross-examined has the same protection and is subject to the same liabilities as if examined by the Commissioner or an Assistant Commissioner.

I interpose to note that the appointment of Counsel assisting is authorised by s 106; it is not necessary to set out that section.
Section 35 gives the Commission power to summon a person to appear at a compulsory examination or public inquiry, to give evidence, to produce documents, or both.
Section 37 abrogates among other things the privilege against self-incrimination. However, s 38 provides some protection:

37 Privilege as regards answers, documents etc
(1)   A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not entitled to refuse:
(a)    to be sworn or to make an affirmation, or
(b)    to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a compulsory examination or public inquiry, or
(c)    to produce any document or other thing in the witness’s custody or control which the witness is required by the summons or by the person presiding to produce.
(2)    A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
(3) An answer made, or document or other thing produced, by a witness at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35 (4A) is not (except as otherwise provided in this section or section 114A (5)) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.
(4)    Nothing in this section makes inadmissible:
(a)    any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or
(b)    any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or
(c)    any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.
(5)    Where:
(a) an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35 (4A), and
(b)    the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between an Australian legal practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a compulsory examination or public inquiry before the Commission,
the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.

Section 53(1) authorises the Commission to refer matters to other bodies:

53 Referral of matter
(1) The Commission may, before or after investigating a matter (whether or not the investigation is completed, and whether or not the Commission has made any findings), refer the matter for investigation or other action to any person or body considered by the Commission to be appropriate in the circumstances.

Sections 74, 74A and 74B deal with reports:

74    Reports on referred matters etc
(1)    The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation.
(2)    The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses.
(3)    The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public inquiry, unless the Houses of Parliament have given different directions under subsection (2).
(4)    The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament.
(7)    A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter.
(8)    The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament.
74A    Content of reports to Parliament
(1)   The Commission is authorised to include in a report under section 74:
(a)    statements as to any of its findings, opinions and recommendations, and
(b)    statements as to the Commission’s reasons for any of its findings, opinions and recommendations.
(2)    The report must include, in respect of each “affected” person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following:
(a)    obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence,
(b)    the taking of action against the person for a specified disciplinary offence,
(c)    the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official.
(3)    An “affected” person is a person described as such in the reference made by both Houses of Parliament or against whom, in the Commission’s opinion, substantial allegations have been made in the course of or in connection with the investigation concerned.
(4)    Subsection (2) does not limit the kinds of statement that a report can contain concerning any such “affected” person and does not prevent a report from containing a statement described in that subsection in respect of any other person.
74B    Report not to include findings etc of guilt or recommending prosecution
(1)    The Commission is not authorised to include in a report under section 74 a statement as to:
(a)    a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or
(b)    a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).
(2)    A finding or opinion that a person has engaged, is engaging or is about to engage:
(a)    in corrupt conduct (whether or not specified corrupt conduct), or
(b)    in specified conduct (being conduct that constitutes or involves or could constitute or involve corrupt conduct),
is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence.
(3)    In this section and section 74A,
"criminal offence" and
"disciplinary offence" have the same meanings as in section 9.

I have set out at [62] the substance of s 74BA.
In short, the Commission is established for very important public purposes. In recognition of that, and to enable it to serve those purposes, it is given very strong powers of investigation and examination. It is entitled (and in some circumstances required) to report upon its investigations. And it may refer matters to other bodies, including the Director of Public Prosecutions, if it thinks such a step warranted.
Apart from those general observations, it is clear from the scheme of the ICAC Act as a whole, and specifically from ss 20A and 30(6), that the Commission may form opinions, and (at least, under s 30(6)) make findings, before its investigations are complete. And it is equally clear that if the Commission does either of those things, it is not necessarily bound to inform the examinee of that opinion or those findings.
The ICAC Act contains provisions relevant to the provision of natural justice. Those provisions include ss 30(3) and 31(5), (6). However (and contrary to many of the submissions put by various counsel to the Commissioner in the course of the Operation Spicer public hearing), the Commission is not obliged to limit its inquiries to the matters notified under one or other of those subsections. Nor is it required to give fresh “particulars” each time the inquiry takes a new turn. It is required to provide a measure of natural justice.
In at least the great majority of cases, the requirements of natural justice, in so far as they give people potentially affected the right to test or call evidence and make submissions, will be served by the recalling of witnesses who have already given evidence, the calling of further witnesses who may give relevant evidence, and the opportunity to make submissions (or further submissions). See Glynn v Independent Commission Against Corruption (1990) 20 ALD 214, cited in Duncan v Independent Commission Against Corruption (2014) 311 ALR 750 at [214].
Further (and again contrary to submissions put by various Counsel to the Commissioner in the course of the hearing), the nature of the investigative process is such that it is not necessary for advance disclosure of possibly contradictory material to be given to witnesses before they give evidence. To require otherwise would undermine an essential feature of the power to investigate that the ICAC Act gives. See Aristodemou v Temby (Grove J, 14 December 1989, unreported; BC8901329).

The decision in R v Vos

As I have noted, the grounds and submissions relied heavily on what was said to be established by the decision of the Court of Criminal Appeal in R v Vos (2011) 223 A Crim R 316, for the purpose of demonstrating that, as a matter of law, questions asked by Counsel assisting must be taken to have been questions asked by the Commissioner.
The respondent in Vos was a police officer. He was charged with a number of offences, including some eight of giving false evidence to a hearing before the Police Integrity Commission (PIC Commission), contrary to s 107 of the PIC Act. The primary judge stayed the proceedings. She did so because the person asking the questions, whom the Commissioner of the PI Commission (the PI Commissioner) had given leave to appear, was not a legal practitioner. In those circumstances, the primary judge concluded, the proceedings in the PI Commission were a nullity and the evidence given in it could not provide a proper foundation for the offences charged.
The Court of Criminal Appeal upheld the appeal from the decision of the primary judge. The reasons for that decision were given by McClellan CJ at CL, with whom Hidden and Johnson JJ agreed.
McClellan CJ at CL considered the relevant provisions of the PIC Act. It is clear that the drafters of the PIC Act took as their model the ICAC Act, particularly in relation to investigations and private and public hearings. Specifically, the PIC Act contains provisions that were, if not identical to, at least materially not distinguishable from ss 17, 20 and 20A of the ICAC. It also contains similar powers to obtain information, documents and the like.
The PIC Act provides for public and private hearings, although those provisions are somewhat different to ss 30 and 31 of the ICAC Act. That having been said, however, the provisions of the PIC Act relating to legal representation (s 35) are substantially the same as the equivalent provisions of the ICAC Act (s 33).
Section 37 of the PIC Act corresponds to s 34 of the ICAC Act. However, it splits up s 34(1) of the ICAC Act into two separate subsections. Nothing seems to me to turn on this. Section 37(2) of the PIC Act is identical to s 34(2) of the ICAC Act.
Section 38 of the PIC Act gives the PI Commission power to summon witnesses and take evidence. It is at least substantially the same as s 35 of the ICAC Act.
The difficulty that arose in Vos, as perceived by the primary judge, was that the PIC Act gave no power to the PIC Commissioner (or the PI Commission) to appoint anyone other than a legal practitioner to assist the Commission. However, as I have noted, the person who conducted the questioning of the respondent did so pursuant to leave given by the PI Commissioner.
McClellan CJ at CL said at [35] that it was significant that a hearing could be conducted by a Commissioner or Assistant Commissioner without the assistance of Counsel assisting. In those circumstances, his Honour said, the Commissioner or Assistant Commissioner could ask questions, and could require answers.
At [36], his Honour noted, among other things, that where the questions were asked not by the Commissioner or Assistant Commissioner but by Counsel assisting, “nevertheless each question is asked with the authority of the Commissioner”. In the present case, his Honour said, although the questions were asked by someone “who could not have been authorised to ask them, they were nevertheless questions sanctioned by the Commissioner, who it may be presumed allowed them to be asked and required them to be answered in furtherance of the investigation”.

Then, at [37], his Honour referred to a question’s being “deemed to be a question put to the witness by the Commissioner…”. I set out [37]:

This analysis is apparent from the terms of the Act. Although s 37(2) provides for the Commission to be assisted by a legal practitioner who may examine or cross examine a witness and s 37(3) provides protection to a witness who is examined or cross examined by that practitioner, s 40 makes plain that any question asked is asked with the authority of the Commissioner or other person presiding at a hearing (s 40(1)(b)). The Act does not otherwise provide for an obligation on a witness to answer questions of counsel assisting or any other person. Accordingly, it may be inferred that even when counsel assisting has been appointed whether a question is actually asked by that person or by the Commissioner the question will be deemed to be a question put to the witness by the Commissioner or Assistant Commissioner.

The facts in Vos are materially distinguishable from the facts in the present case. In Vos, the questions were asked by a person whom the PI Commission had no statutory warrant to appoint to assist it. Thus, he could not have been authorised by the PIC Act to ask questions. It was therefore necessary to find, as McClellan CJ at CL did, that the questions were asked by the authority of the Commissioner, if the charges were to get off the ground. It is in that context that his Honour used the language of “deeming”.
In the present case, the questions, the subject of complaints in the grounds, were asked by Counsel assisting the Commission – usually, Senior Counsel assisting. It was open to the Commission to appoint Counsel assisting: see s 106 of the ICAC Act. And it was open to the Commission, through the Commissioner, to give leave to Counsel assisting to examine and cross-examine witnesses (just as it was open to the Commission, acting through the Commissioner, to give the same leave to other Counsel who had been given leave to appear): see s 34(1).
The ICAC Act makes it clear that a person who is asked questions must answer them. Section 35(1) empowers the Commissioner to summon a person to give evidence. There is not much point in having the power to summon a person to give evidence, unless the person is required to give it. That, no doubt, is why s 37(1)(b) effectively requires a witness summoned to attend at a hearing to answer questions relevant to the investigation put by the Commissioner or other person presiding.
Likewise, one might think, there is little point in giving Counsel (whether assisting, or given leave to appear for a witness or affected person) to examine or cross-examine, unless the witness is required to answer Counsel’s questions. Both examination and cross-examination contain within them the concept of question and answer. The examiner or cross-examiner asks a question. The witness answers it. And so the evidence is given. That, in my view, is what is contemplated by s 34(1) of the ICAC Act.
Where the questions are asked by Counsel given leave to appear, s 34(2) is engaged. That section provides that the witness “has the same protection and is subject to the same liabilities as if examined by the Commissioner…”. That must mean, among other things, that the questions asked by Counsel are asked with the force of s 37(1)(b) behind them.
In other words, where the person asking the question is a legal practitioner granted leave to appear, the ICAC Act itself provides, both expressly and by necessary implication, that the witness must answer the questions asked by that practitioner. There is no need to resort to the concept of “the authority of the Commissioner” or to the process of “deeming” to achieve this result.
Finally, in this context, s 34(2) of the ICAC Act itself clearly recognises a distinction between, on the one hand, a witness examined or cross-examined by a legal practitioner and, on the other, a witness examined by the Commissioner. The distinction explicitly recognised in that sub-section is to my mind quite inconsistent with the proposition that questions asked by Counsel are deemed to be asked by the Commissioner. (I should mention that, when pressed, Senior Counsel for Mr McCloy acknowledged that his submission extended not only to Counsel assisting, but also to other Counsel given leave to appear.)
It follows, in my view, that the material distinction between the facts in Vos and the facts in this case make it unnecessary in this case to resort to the analysis undertaken by McClellan J at CL in Vos. I am not for a moment to be taken as suggesting that I disagree with his Honour’s analysis on the facts of that case. I am suggesting no more than that the analysis is irrelevant in this case, because the ICAC Act covers the situation, as I have said, both expressly and by necessary implication.
In my view, reliance on the decision in Vos, for the purposes asserted in the grounds and the submissions, is misplaced.

The Commissioner’s speech to the Bar Association: grounds [4] to [8C]

On 24 February 2014, the Commissioner gave a speech to members of the New South Wales Bar Association. The speech was given as part of a seminar for barristers. The specific target audience was recently admitted barristers. The Commissioner was discussing the way in which techniques of cross-examination might be applied in inquisitorial proceedings: particularly by Counsel retained as Counsel assisting.
Against that background, grounds [4] and [5] assert the following:

4.   On 24 February 2014, the Commissioner gave a speech to members of the New South Wales Bar Association, a recording of which was subsequently published on the Internet, in which the Commissioner stated:
a.   “inquisitorial litigation is fantastic… you are not confined by the rules of evidence. You have a free kick. You can go anywhere you want to go. And it is a lot of fun”;
b.   for Counsel Assisting, questioning witnesses during public inquiries is “like pulling wings off butterflies” because “you have actually worked out what you want to get of the witness” and “you know exactly what you expect that witness to say”;
c.   “the thing about the role of counsel assisting in ICAC is that you are actually part of a team”; and
d.   it “is much more difficult for counsel who are representing the relevant witness and it’s a very very limited role for those counsel”.
5.   From the statements set out at paragraph 4 above and the conduct summarised below, a fair-minded observer might reasonably infer that the Commissioner had opinions and intentions to the following effect:
a. that the Commission’s and Counsel Assisting’s obligations of fairness towards witnesses and persons of interest had no qualities or standards akin to those which apply in judicial processes, in spite of the gravity of the potential consequences of the Commission’s exercise of power, and in spite of the applicability of the Barristers Rules as then in force to the conduct of Counsel Assisting;
b.   that advocates representing witnesses and persons of interest ought rightly to be confined to a much more limited role than Counsel Assisting;
c.   that the Commissioner and Counsel Assisting would during a public inquiry be jointly pursuing a preconceived agenda;
d.   that it was proper for the Commission to have already determined what findings of fact would be established through the public examination of witnesses, prior to any public hearing occurring;
e.   that any opportunity to be heard, by way of submissions or questioning of witnesses, which is provided to witnesses or persons of interest should be provided perfunctorily and disingenuously, such that it would never be capable of having any real effect on the findings the Commission ultimately makes;
f.   that the Commission’s so-called public hearings have and should have the character of a show trial, in that they are not intended to and do not affect the Commission’s predetermined ultimate findings;
g.   that it was proper and desirable for the Commission in its public hearings to be seen to be causing pain and harm to witnesses appearing before it; and
h.   that each of the matters described at subparagraphs (a) to (e) above are features of the Commission’s processes which give the Commissioner personal joy, glee and satisfaction.

There is no doubt that, in the course of her speech, the Commissioner made the remarks attributed to her at [4]. However, in my view, there is also no doubt that the observer, acting reasonably, could not draw from what the Commissioner said, in the context in which it was said, any of the inferences set out at [5].
The first point, leaving aside the Commissioner’s recommendation of the delights of inquisitorial litigation, is that Counsel (whether assisting, or appearing for witnesses) are not constrained by the rules of evidence. That is made clear by s 17(1) of the ICAC Act.
Whilst the Commissioner’s observation that Counsel “have a free kick”, if taken out of context, could be seen to indicate a view that there were no constraints upon Counsel conducting examinations or cross-examinations, no reasonable observer, looking at the whole of what was said, could come to that view. There is nothing whatsoever in the Commissioner’s speech to suggest that normal rules as to relevance, and the constraints imposed by considerations of fairness and under the Barristers’ Rules, do not apply.
There are two other points relevant to the “free kick” comment. One is that, for the reason given at [109] below, Counsel assisting will generally have a very good idea of what a truthful answer to a question should be. The other is that, because Counsel assisting are not advocates for a party as in adversarial litigation, there is no risk to their “client’s” case from an unexpected answer, or from an answer to an injudicious question. There is not the “one question too many” risk that frequently confronts Counsel in adversarial litigation.
Whether or not the observer would understand the points made in the previous paragraph may be a matter of debate. However, a judge whose task it is to inhabit the fictitious mind of that observer, and to apply that observer’s fictitious thought process, cannot but be aware – perhaps, as to the second, all too aware – of them.
Likewise, the comment that “[y]ou can go anywhere…” is correct, in that, within the broad confines of an investigation, Counsel assisting are free to pursue whatever leads are available in the material amassed by the Commission in the course of its investigation. Further, where evidence indicates that the subject-matter of the investigation ought properly to be expanded (as frequently happens, and as indeed happened in Operation Spicer), it is proper for Counsel to pursue that expanded area of inquiry. Again, nothing in what the Commissioner said could reasonably be taken by the observer to indicate that Counsel were utterly unconstrained, or that witnesses should not have a reasonable opportunity of answering material put to them.
Whether or not the role of Counsel assisting “is a lot of fun” is a matter of judgment. Enjoyment, like beauty (and many other matters including, on occasion, truth) is very much a matter in the eye of the beholder. I can conceive that some people might think it “fun” to slave day and night over volumes of material to prepare a detailed and searching examination, and then to undertake that examination. Others might not.
The expression “pulling wings of butterflies”, taken out of context, could be taken to indicate some sort of sadistic enjoyment in the process of examination (either as the examiner, or as the Commissioner observing it). But in context, what the Commissioner was saying was plain. She was saying that, as I have just indicated, Counsel assisting with usually have a great deal of material to work with.
In the ordinary way, before a public hearing is conducted, the Commission will have amassed a substantial body of evidence dealing with the subject of (and, in the Commission’s view, justifying the holding of) the public inquiry. Counsel assisting, if properly prepared, will have got across that material. It will include not only the transcripts of compulsory examinations, but also, in many cases, the fruits of searches, telephone intercepts, seizure of documents and the like. In many cases, that material will indicate very clearly “what you expect that witness to say”, because it will point out very clearly what it was that the witness did, relevant to the subject-matter of the inquiry.
If the witness accepts it (as Mr McCloy accepted that he made the payments in question) then the examination may move on. If the witness does not accept it, Counsel assisting has every right to use the material to seek to controvert the evidence of the witness. And in many cases, it might well be thought, the material amassed by the Commission in its earlier investigations (including, in particular, telephone messages and intercepts, documents created when it was not thought there would be any inquiry, and the like) might be a reliable source of controversion.
Viewed objectively, the material available to Counsel assisting will normally make the examination of reluctant or untruthful witnesses far easier than is the case in civil litigation, where all too often Counsel do not have the wealth of material, inconsistent with the evidence given in court, with which to confront the witness and challenge his or her testimony.
Passing over para (c) for the moment, it was equally correct to say that “it is much more difficult for Counsel who are representing the relevant witness”. That is self-evidently true, because in the ordinary way those Counsel will not have had much (if any) prior access to the material, perhaps inconsistent with the evidence given by the witness, with which the witness is confronted and by which he or she is sought to be contradicted. The concealed availability and surprise deployment of that material is, as Grove J pointed out in Aristodemou at BC13, an important weapon in the Commission’s arsenal.
I return to para (c). It was correct to say that Counsel assisting “is part of a team”. The team comprises, quite often, senior and junior counsel, the Commission’s solicitor, and investigative staff employed or retained by the Commission. That does not seem to me to be in any way sinister.
Turning to the inferences set out at [5], it is correct to say that the obligations of fairness are not identical with those observed (or which ought to be observed) “in judicial processes”. However, the disparity between the two is a necessary consequence of the legislative scheme. The ICAC Act prescribes certain measures of procedural fairness (see, for example, ss 30(4) and 31(5), (6)). It is apparent that the legislature made an informed judgment that some greater standard of procedural fairness (or more detailed right to know what material the Commission had amassed) might be inconsistent with the proper and effective conduct of the Commission’s activities.
There is simply nothing in what the Commissioner said to suggest that Counsel assisting were not subject to relevant requirements of the Barrister’s Rules, to the extent that they applied (or were capable of application) to public inquiries conducted by the Commission.
It is obvious that advocates for witnesses and persons of interest have a more limited role than Counsel assisting. That is hardly surprising. I have pointed out why this is so.
As to paras (c) and (d), it seems to me to be essential that the Commission should have formed a tentative view that the activities, the subject of the investigation, might amount to serious corrupt conduct (compare s 74BA of the ICAC Act). If it could not form such a tentative view, there would be no justification for the expense, both in terms of money and in terms of reputation, of conducting the public inquiry. It simply does not follow from anything the Commissioner said that there was some “predetermined agenda” of such force that “the Commission [had] already determined what findings of fact would be established… prior to any public hearing occurring”. With the greatest of respect to the drafters of the summons, that gloss on the Commissioner’s speech is not only unavailable on a fair reading, it is an improper distortion of her words.
The same may be said of para (e). Nor is there anything to suggest, in the present case, that the questioning of the witnesses (including, of particular relevance, Mr McCloy) was perfunctory or disingenuous.
As to para (f), the expression “show trial” was bandied about during the hearing. Again, that is an unavailable and irresponsible gloss on the Commissioner’s speech.
Paragraphs (g) and (h) seemed to be intended to do no more than insult the Commissioner. There is no foundation for them in anything she said to the Bar Association.
In my view, nothing in the Commissioner’s speech to the Bar Association, viewed in the context of both the whole speech and the circumstances in which it was given, could rationally cause the observer to draw any of the inferences suggested. Nothing in that speech is capable of suggesting any immutable commitment to a predetermined conclusion.
Equally fatally, neither the grounds nor the submissions in support of them sought to trace any logical connection between the matters that were complained of in those grounds and findings that the Commissioner was yet to make. There is no articulation of how, it might reasonably be thought, the matters complained of could demonstrate, as a real possibility, that the Commissioner might not bring an open and independent mind to the resolution of those questions.

The case theory: grounds [9] to [48]

The complaint made in these grounds is that witnesses were treated differentially, according to whether their evidence was expected to conform to the “case theory already formulated by Counsel Assisting”, or to be inconsistent with or adverse to that case theory. That proposition is said to be supported by an analysis of the evidence given by some seven witnesses, as covered in grounds [11] to [48]. It is also asserted (ground [10]) that the Commissioner did not “admonish, disclaim or otherwise discourage” conduct by Counsel Assisting that was said to be motivated by, or a manifestation of adherence to, the case theory.
As I have pointed out already, there are two problems with this, even before one comes to the facts. The first is that the “case theory already formulated by Counsel Assisting and the Commissioner” is not identified in the grounds. The second is that there is, of necessity (absent identification of the case theory), no demonstration of any, let alone any logical, connection between the supposed pursuit at all costs of that case theory and the unbiased resolution of the questions, as to Mr McCloy, that the Commissioner is yet to decide.
As to ground [10], there are two fundamental problems. The first is that, as I shall show, there was no such “conduct… engaged in by Counsel Assisting”. The second, and perhaps more basic, point is that neither the grounds nor the submissions in support of them identify why it is that the Commissioner should have sought to restrict the pursuit, by Counsel Assisting, of topics of inquiry apparently relevant to the investigation by “admonishing, disclaiming, or otherwise discouraging” the lines of examination referred to in the grounds dealing with the seven individual witnesses.
I propose to examine in detail the complaints made in respect of the various witnesses referred to in these grounds. All of those witnesses gave evidence before Mr McCloy did so. None of them appears to have given evidence involving Mr McCloy.
I take that approach because, as I said at [33] above, I do not propose to examine each and every one of the grounds in any detail. However, I do accept that at least some of the grounds should be considered in some detail, for the purpose of making good the more general propositions that I set out at [263] and following below. It seems to me that the first group of allegations, relating to the case theory and the way that witnesses were examined in relation to that supposed case theory, is an appropriate vehicle for that task.

In my view, for all the reasons just indicated, it is not an appropriate use of the Court’s time and resources to undertake that task. Although this is important litigation, it is nonetheless civil litigation. Section 56 of the Civil Procedure Act 2005 (NSW) applies. Bearing in mind the matters to which I have referred, the overlapping reasons for which these remaining grounds must fail make it pointless to descend into the detail of each and every one of them.

The evidence of Mr McCloy

As I have said, Mr McCloy gave evidence on two occasions: 14 August and 12 September 2014. On each occasion, he was represented (by leave of the Commission) by Senior Counsel.
The first topic covered in Mr McCloy’s evidence (after formalities) concerned the circumstances in which he was asked to, and did, donate $10,000 to Mr Tim Owen (then a Liberal candidate, and subsequently the member, for the seat of Newcastle).
Messrs McCloy and Owen had not met before the donation was made. They arranged (or an arrangement was made for them) to meet in Hunter Street, Newcastle. They introduced themselves, went to Mr McCloy’s car, and without further ado, Mr McCloy handed over an envelope which proved to contain $10,000.00 in cash. Mr McCloy was asked how he came to do that. He gave an answer which could be described as less than responsive, but in which he explained, in detail and his own words, his reason for making the donation.
The complaint made in the summons is that the payment to Mr Owen could not amount to bribery at common law, because Mr Owen was not, at the time the payment was made, a public official (ground [55]).
As I understand the submission put in support of this ground, it is that the Commissioner should have rejected the question, because the payment in question could not amount to a bribe. I do not agree. It is by no means clear-cut that a payment can only be a bribe if the recipient of it is a public official at the time it was made. Put conversely, it might seem strange that there is no bribery when a payment is made to a person who is not when the payment is made a public official, but who has at least reasonable prospects of becoming one shortly thereafter.
In any event, the question is one for the Commissioner to deal with. It can hardly be suggested that she is not equipped, by reason of her training and experience, to decide that question.
The ground and submission invite the Court to rule on the matter. That again involves a departure from the proper limits of judicial review. It is an invitation to the Court to descend into the merits of the particular dispute.
The summons also suggests (ground [54]) that it might appear that there was no serious challenge to the explanation that Mr McCloy gave for making the payment to Mr Owen. Again, whether or not that is so is a matter for the Commissioner (who, I might add, has had the benefit – and burden – of hearing and reading, and no doubt re-reading, all the evidence). It is for the Commissioner to decide what to make of the explanation, and of such submissions as may have been put in respect of it.
The questioning of Mr McCloy continued to explore the circumstances in which he came to meet, and give $10,000.00 in cash to, Mr Owen. It was suggested, apparently on the basis of “telephone traffic”, that the meeting might have been organised by or through Mr Michael Gallacher, then a Liberal member of Parliament for a seat on the Central Coast or in the Hunter Region, and a Minister of the Crown for this State. No complaint is made about that aspect of Mr McCloy’s evidence. He was given every opportunity to say what he could about the matters put to him, and indeed about Mr Owen’s evidence on the topic of the donation.
Mr McCloy was then asked about a cash payment he had made to a Mr Thompson (who I think may have been an intermediary for another candidate), and about a cash payment that he had made to a Mr Andrew Cornwell, who was the Liberal candidate, and subsequently member, for the seat of Charlestown. No complaint is made as to any aspect of this evidence. Again, Mr McCloy was given every opportunity to say what he wanted to say in relation to the matters asked of him. His evidence went so far as to accept that he had caused a company controlled by him to make a donation to the Liberal Party through the mechanism of paying “a false invoice”.
Mr McCloy was then asked about other donations that he had made, including to a Mr Garry Edwards, the Liberal candidate, and subsequently member, for the seat of Swansea. It was in the course of giving this evidence that Mr McCloy volunteered, “I feel like a walking ATM some days”.
Mr McCloy was then asked about donations he had made, or might have made, to other people. In the course of this, he was questioned by reference to what he had said in his compulsory examination. It was put to him, firmly but fairly, that what he had then said was different to the evidence he was giving in the public hearing. No complaint is made of this; and in any event, two things may be said. The first is that there was a proper basis for putting the questions. The second is that whether there is a difference, and if so the significance of that difference, is a matter for the Commissioner.
I should mention that in the course of cross-examination based on the suggested differences between his earlier evidence (compulsory examination) and present evidence (public inquiry), the Commissioner intervened to bring his mind back to the point, and to give him an opportunity, in an open-ended way, to deal with the question that was put to him. Mr McCloy took advantage of the opportunity thus offered.
The questions then returned to the topic of Mr McCloy’s donation to Mr Owen. Mr McCloy suggested that there was some doubt in his mind. The Commissioner then gave him an opportunity, “as a matter of fairness” to explain himself. He took this opportunity.
At one stage, Senior Counsel assisting spoke over Mr McCloy. There was an objection (not by Senior Counsel for Mr McCloy, but by Counsel for another witness, a Mr Hilton Grugeon), “let him answer the question”. The Commissioner intervened, “perhaps, perhaps let him answer the first question”. Senior Counsel assisting apologised. The Commissioner took Mr McCloy back to the first question, and he was given an opportunity to answer it. He took the opportunity.
The questioning then turned to Mr McCloy’s understanding of the restrictions on political donations by property developers. The relevant prohibitions were and are contained in the EFED Act, in particular at Division 4A of Part 6, s 96GAA and following. It is not necessary to go to the detail.
Mr McCloy was asked whether he had declared the donation to Mr Owen’s campaign. He said that, “the recipient’s got that obligation”. It was put to him that he was wrong, and appeared to concede this. He was asked whether, as Lord Mayor of Newcastle, he would have made such a mistake. It is at this point that he was twice referred to as “Mayor McCloy”, and once as “Mr Mayor”. That is the subject of complaint (grounds [158], [159]). It is suggested that this was no more than a sarcastic attempt to insult and aggravate Mr McCloy.
I accept that the reasonable observer may have thought that the references to Mr McCloy as “Mr Mayor” or “Mayor McCloy” were somewhat sarcastic. I accept, further, that the observer might think it passing strange that a businessman of Mr McCloy’s experience and obvious ability, who was a man with a very keen interest in politics, and who had held office as Lord Mayor of the City of Newcastle, was completely ignorant of at least the substance or effect of the relevant provisions of the EFED Act. In my view, the observer could very well think that the questions were no more than an advocate’s way of making the obvious point, that one would expect a person with Mr McCloy’s experience, abilities and political background to have at least a rudimentary understanding of the substance and effect of the electoral funding laws.
At this point in the summons (i.e., ground [158]), complaint is also made of references to Mr McCloy’s motor vehicle. I do not think that the reference to his car was irrelevant; but in any event, the way that it is characterised in the summons is incorrect and, as a result, misleading. I note that in fact it was Mr McCloy who first mentioned the make of his car.
Mr Owen had thought that he met Mr McCloy in a car, but could not recall whose. Senior Counsel assisting inquired whether it was Mr McCloy’s “flash car” (without mentioning the make), in an attempt to jog Mr Owen’s memory. Likewise, in questioning Mr Cornwell, Senior Counsel assisting was asked whether the meeting was in “a flash car”. Mr Cornwell said, “I believe it was his Bentley”.
In my view, the observer would think that the references that Senior Counsel assisting had made to the “flash” qualities of Mr McCloy’s car were made for the legitimate purpose of jogging the memory of the witnesses whose meetings, for the purpose of receiving Mr McCloy’s donations, took place in that car. And as I have noted, Senior Counsel assisting refrained from identifying the make of the car in question.
Mr McCloy was then asked whether he was a property developer. His descriptions of himself and his companies’ businesses, taken from his website, were put to him. He was then asked whether he “still maintain[ed] that [he] could legitimately donate”, either in person or through a company, to a political campaign. He started to answer, and was cut off. He said that he would answer, “my way if I can”. The Commissioner gave him permission to do so. Mr McCloy took advantage of the opportunity thus offered to him.
Mr McCloy was then asked further questions about his companies’ development activities, including in areas that were within the various state seats, the candidates for which had been assisted by his donations. Again, he was given every opportunity to answer the questions in his own way.
I should note at this point that the only objection taken to the way in which Mr McCloy was questioned was that to which I have referred at [287]. On that occasion, as I noted, the Commissioner intervened to permit Mr McCloy to answer the question.
The evidence then turned to Mr McCloy’s dealings with a Mr Alan Robinson. He was a Councillor for the City of Newcastle, who it seems voted regularly with Mr McCloy’s “Group” or “Block”. Mr McCloy was asked in effect whether he had paid for Mr Robinson’s electoral expenses. In the course of this, Mr McCloy was cut off. The Commissioner intervened (without objection from Mr McCloy’s Senior Counsel) telling Senior Counsel assisting to, “just let him finish”. Again, Mr McCloy took advantage of that.
When Senior Counsel assisting replied with some degree of asperity to an answer given by Mr McCloy again the Commissioner intervened to give Mr McCloy the full opportunity that obviously he wanted to answer the questions in his own way.
The passage of Mr McCloy’s evidence concerning Mr Robinson is the subject of complaint in the summons (ground [160]). The complaint is that the matters were put “without prior notice”. The force of that complaint may be judged by the fact that no objection was taken to the questioning at the time, although as I have said Mr McCloy was then represented by Senior Counsel.
It is also said, by reference to documents that are not in evidence, that the matters put to Mr McCloy concerning Mr Robinson were not correct. Whether or not they were correct, and whether or not the documents in question have anything to do with the matter, are for the Commissioner to decide. Again, it would be outside the province of judicial review for this Court to decide the merits of the contentions that are now put.
The course of questioning of Mr McCloy then travelled back to Mr Edwards, and from there again to Mr McCloy’s occupation, suggested to be that of “a property developer”. He was directly challenged on this. His response was, that there are “two senses of property developer”. There was then a somewhat heated exchange, in the course of which (for the first time) Senior Counsel appearing for Mr McCloy did object. The Commissioner intervened, and asked Mr McCloy to explain what the “two senses” were. He took the opportunity. The Commissioner asked him further questions to draw out the significance, in his mind, of the distinctions.
So far from demonstrating bias, prejudgment or unfavourable treatment, this section of the transcript shows very clearly that the Commissioner was concerned for Mr McCloy to have every opportunity to explain himself in his own words.
Mr McCloy was then asked about a bundle of documents that he had produced, apparently for the benefit of the media. They included a poem by “Mother Therese” or “Mother Theresa”. He was asked some rather pointless questions about this. Senior Counsel assisting commented “oh, it’s just rubbish”. He was reprimanded by the Commissioner, and apologised. The Commissioner gave Mr McCloy the opportunity to explain what was in his mind the significance of the poem; indeed, she did so in a way that might have been thought helpful to him.
Mr McCloy was then asked whether he had had a meeting with Mr Owen when Mr Owen “was due to give evidence in a private session”. After two questions, Senior Counsel assisting apologised and said, “I better let you tell your own story”. Mr McCloy took the opportunity.
In the course of this passage of evidence (and perhaps not unsurprisingly, given the subject-matter) there was an outbreak of strife at the bar table. Senior Counsel (not for Mr McCloy, but for Mr Gallacher) objected to Mr McCloy’s being cut off. I might say that the reasonable bystander could think that the answer that was cut off was entirely non-responsive; but that is a matter for the Commissioner. The Commissioner intervened. She asked everyone to, “please just settle down”. With order restored, Senior Counsel assisting apologised to Mr McCloy and asked Mr McCloy to, “go on”, as did the Commissioner. Mr McCloy took that opportunity.
Mr McCloy was then asked further questions, including about his knowledge as to the legality of the donations that he had made. There was an objection when Senior Counsel assisting cut off an answer. Senior Counsel assisting apologised. Mr McCloy completed his answer. The evidence continued.
Thereafter, once Senior Counsel assisting concluded his examination, Senior Counsel for Mr McCloy was given the opportunity to, and did, ask questions of Mr McCloy.
The first tranche of Mr McCloy’s evidence then ended. The overwhelming impression that it leaves is that the Commissioner strove to ensure that Mr McCloy was given every opportunity to answer questions in his own way, and from time to time intervened both to rebuke Senior Counsel assisting and to assist Mr McCloy to return to the topic from which he had been distracted.
To my mind, the reasonable observer would think that although the examination of Mr McCloy could be described, in many places, as “robust”, it was not unfair. And that observer would certainly think that the Commissioner had intervened where appropriate to ensure that appropriate standards of fairness were maintained, and that Mr McCloy had a proper opportunity to tell his own story in his own way.
I turn to the second tranche of evidence given by Mr McCloy. He was asked questions about “funds” that he had paid “into [Mr] Craig Baumann’s 2007 election campaign”. Mr Baumann had been for many years, a Councillor on the Port Stephens Shire Council. From March 2007 until March 2015, he was a Liberal member of Parliament for the State seat of Port Stephens. He moved to the crossbenches on 12 September 2014.
Mr McCloy accepted that the payments in question appeared to have been effected through the creation of sham documents “to suggest that you were actually doing business with” a company controlled by Mr Baumann. He could not remember why that was done. He said, “that was the method that, that it got into his account, I would have paid that for his election campaign, there’s no doubt about it”.
Mr McCloy was then asked a number of questions as to the ability of Mr Baumann (presumably, in his capacity as a Councillor) to make favourable decisions in respect of the rezoning of a property owned by one of Mr McCloy’s companies in the Port Stephens Shire. He was asked whether this could provide a financial benefit. He gave a lengthy, and essentially non-responsive, answer. He was then asked to look at an exhibit, which apparently comprised a bundle of newspaper clippings. He was asked whether various matters alleged in that material were correct.
It was put to Mr McCloy, and he accepted, that he had not made any declaration, pursuant to the EFED Act, for the money paid for Mr Baumann’s election campaign. He was asked whether he knew he was required to make a declaration, and gave a reply that was cut off. He was then asked why it wasn’t done. He gave an answer, to the effect that he did not like being named as a political donor, “and it was a way I believed to get around that”.
Mr McCloy was then asked, having regard to Mr Baumann’s positions, “what are we supposed to make of it… it looks as though you, a powerful businessman, were making secret donations to a powerful politician…, don’t you agree?” He gave an answer that was non-responsive. However, when pressed, he accepted the proposition put to him, “it does look like that”.
It was then put to Mr McCloy that, “you could make a lot of money, don’t you see that?”. He gave an answer which was non-responsive. Although he was interrupted in this, he continued to give the answer that he wanted.
It was then put to Mr McCloy, “that you’re actually buying Baumann, buying Craig Baumann and a favourable decision”. His response was that Mr Baumann could not give a favourable decision.
The Commissioner then put to Mr McCloy that the question had been framed “in terms of the appearance… in terms of the appearance at this arrangement”. He appeared to accept that the appearance could exist. However, he repeated his proposition, that Mr Baumann could not make the decision in his own right.
It is to be noted that at no stage during this passage of Mr McCloy’s evidence was any objection taken by Senior Counsel appearing for him, who was present on 12 September 2014.
Counsel for Mr Baumann then asked questions of Mr McCloy, as did Counsel for Mr Grugeon (another property developer, who also had interests in land in the Port Stephens Shire area).
Senior Counsel for Mr McCloy was asked whether he wished to ask any questions. He replied, “no questions, thanks”. There was no examination in reply. Mr McCloy stood down.
There is nothing in this section of Mr McCloy’s evidence that could rationally give to the observer any reason to think, that Mr McCloy had been unfairly treated, or that he had been refused the opportunity to tell his own story in his own words. Nor is any suggestion to the contrary put in the summons.
The only complaint made in relation to this aspect of Mr McCloy’s evidence (grounds [64] to [69]) is based not on the evidence of Mr McCloy, but on the evidence of Mr Baumann, who immediately preceded Mr McCloy in the witness box. The complaint relates to the way in which Senior Counsel assisting put the bundle of newspaper clippings before Mr Baumann, and referred to the headlines. It must be said that some of the headlines, and some of the material in the articles, were of a sensational nature.
Nonetheless, as it seems to me, this was a legitimate topic to explore. The fact that Mr McCloy had made, but not (as required) declared, donations to Mr Baumann was not disputed. Mr McCloy accepted those matters. It was legitimate in my view to ask why a sham structure had been put in place to disguise the making of the donations. And it was legitimate to explore the topic of whether there was a corrupt purpose underlying them.

In truth, that is all that was done. The extent to which the headlines and contents of the articles were read aloud, in the course of Mr Baumann’s examination, was both limited and appropriate.

Orders

I order that the further amended summons be dismissed with costs.
I direct that the exhibits be returned.

**********

Decision last updated: 10 December 2015

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