Moriarty v Independent Commissioner Against Corruption (NT) - [2022] NTSC 21

CITATION:Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 21
PARTIES:MORIARTY, Damien Francis

v
INDEPENDENT COMMISSIONER AGAINST CORRUPTION (NT)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-02752-SC
DELIVERED:  23 March 2022
HEARING DATE:  4 March 2022
JUDGMENT OF:  Kelly J

CATCHWORDS:
Independent Commissioner Against Corruption Act 2017 (NT)
Supreme Court Rules 1987 (NT) R 49.03
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
REPRESENTATION:
Counsel:
Plaintiff:F Forsyth SC
Defendant:L Peattie
Solicitors:
Plaintiff:Cozens Johansen Lawyers
Defendant:Hutton McCarthy
Judgment category classification:    C
Judgment ID Number:  Kel2210
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 21

No. 2021-02752-SC

BETWEEN:

DAMIEN FRANCIS MORIARTY

Plaintiff

AND:

INDEPENDENT COMMISSIONER AGAINST CORRUPTION (NT)

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 23 March 2022)

The plaintiff in this matter is seeking judicial review of the conduct of the Independent Commissioner Against Corruption (NT) (“ICAC”) in relation to the report published on 25 July 2021 entitled “Investigation into the application for award and expenditure of a grant to the Darwin Turf Club for a public grandstand” (“the Report”). The originating motion as filed seeks :
·a declaration that certain determinations in the report which consist of adverse findings against the plaintiff are in excess of jurisdiction;
·a declaration that the adverse findings were made without affording the plaintiff procedural fairness;
·a declaration that the adverse findings were subject to jurisdictional error/were contrary to law and are a nullity;
By consent, the plaintiff has been given leave to file an Amended Originating Motion to include an additional claim for a declaration that publication of the report to the public and to certain Government Ministers was in contravention of the Independent Commissioner Against Corruption Act 2017 (NT) (“ICAC Act”).
The matter is listed for trial for three days beginning on 30 March 2022. By summons dated 23 February 2022 the plaintiff has applied to vacate the trial dates. The reasons advanced by the plaintiff for wanting to adjourn the trial are as follows.
The plaintiff says that since the filing of the originating motion, a variety of information has emerged in both the public domain and by informal request to the defendant which indicates that:
(a)the ICAC Inspector has received, investigated, and reported on another complaint made in respect of the investigation the subject of the Report, and has foreshadowed conducting another investigation;
(b)the Chief Minister and another Minister were provided with a report in substantially the same terms as the Report, prior to its public release;
(c)investigations are under way by the police, the present ICAC, and the ICAC Inspector into the propriety (or legality) of the ICAC’s conduct in the investigation and the Report and the facts and results of those investigations have not yet been determined;
(d)ICAC has conducted (and acknowledged as inappropriate) at least one covert recording of a conversation with a board member of the Darwin Turf Club (Ms Lorimer) in which the plaintiff and his conduct that was the subject of comment in the Report were discussed, and which was not disclosed to the plaintiff (“the Secret Recording”).
The implication of this additional information, according to the plaintiff, is that the propriety of the investigation which is the subject of this judicial review application is being scrutinised by other agencies and new factual material relevant to the propriety of that investigation is continually emerging.
The plaintiff contends that the outcome of these investigations will likely produce information and findings that are relevant to this proceeding, particularly given that in this proceeding allegations include that the plaintiff was not accorded procedural fairness and not all relevant information was put before him.
The plaintiff says that he will need to file additional affidavit evidence in support of those allegations.
The plaintiff claims that the further information referred to in [4] above suggests that further relevant information may exist that the plaintiff has not been provided with such as:
(a)records of other interviews conducted by the ICAC that refer or relate to the plaintiff;
(b)documents recording or relating to communications or deliberations by the ICAC that refer or relate to the plaintiff;
(c)documents reviewed or relied on by the ICAC in the preparation of the Report or any draft report that refer or relate to him; and/or
(d)the provision of reports or draft reports to other individuals or entities that refer or relate to the plaintiff.
The plaintiff contends that in those circumstances he is likely to need to make an application for production of further material as to date there have been no orders sought or made for the production of documents. Further grounds for judicial review may also need to be added depending on the content of any material produced and the plaintiff may wish to seek leave to issue interrogatories.
The plaintiff has expressed “concerns” about the existence of the Secret Recording and complains that the defendant has not identified the speakers other than to say they are “employees”.
The plaintiff contends that if the adjournment isn’t granted he will suffer prejudice and will be denied the opportunity to:
(a)further amend his originating motion;
(b)put forward all relevant evidence in support of his claim; and
(c)make any application for production of further relevant material by the defendant.
The plaintiff claims that the correlative result of that will be the potential failure to put all relevant material and allegations before the Court. This, it is claimed, would prejudice the administration of justice if relevant material later emerges or is later produced, as the plaintiff would be required to commence a new proceeding and potentially be met with issues of estoppel or res judicata, inconsistent findings of fact, and duplication of costs and court resources.
In oral submissions, counsel for the plaintiff placed great emphasis on the Secret Recording. She contended that the plaintiff needed to know what use (if any) was made of the Secret Recording in making adverse findings against the plaintiff. When pressed as to the kind of further amendment to the amended originating motion that might become necessary, counsel said, essentially, that it would be to add as a particular of the failure to accord natural justice to the plaintiff, a failure to disclose the existence and use of the Secret Recording. Counsel for the plaintiff emphasised that the plaintiff only became aware of the existence of the police and ICAC Inspector’s investigations relatively recently as a result of articles in the NT News and only received a transcript of the Secret Recording on 15 February 2022, and that the plaintiff had brought this application within a week of receiving that transcript.
The defendant opposes the adjournment of the trial.
·Counsel for the defendant contended, by reference to the newspaper articles and the investigation report of the ICAC Inspector relied on by the plaintiff, that there is nothing to suggest that either the police investigation or the proposed further investigation by the ICAC Inspector have anything to do with the plaintiff or the matters at issue in this proceeding; indeed nothing to suggest that the police investigation has anything to do with the investigation into the Darwin Turf Club grant.
·Counsel for the defendant also said that the plaintiff had not asked the defendant what use (if any) had been made of the Secret Recording in relation to the adverse findings against the plaintiff in the Report, and said also that if such a request was made, it would be responded to within 24 hours. He also said that the defendant would supply the names of the people whose voices are heard in the recording.
The defendant also contended that there would be prejudice to the defendant and to the administration of justice if the trial dates were not maintained. Delay inevitably means that memories of relevant events fade and in an organisation such as ICAC people leave the organisation, which can be important when obtaining instructions. The ICAC investigation into the Darwin Turf Club grant is a matter of great public interest which needs to be finalised sooner rather than later and, importantly, this case involves issues as to the jurisdictional limits and nature of some of the powers of the ICAC which need to be settled.
Relevant principles
There is no dispute as to the relevant principles to be applied in determining whether to grant an adjournment. Rule 49.03 of the Supreme Court Rules 1987 (NT) provides that the Court may adjourn a trial on such terms as it thinks fit. Practice Direction 6 of 2009 (as extended by Practice Direction 4 of 2021) contains the following statement:
Part 4 – Trial Dates are Sacrosanct
19. All parties and their representatives must appreciate that:
19.1the public has an interest in ensuring that all disputes are determined justly, promptly, economically, and in proportion to the nature of the dispute;
19.2it is essential for determining disputes in this way that trial dates are taken seriously and assumed by the parties and their representatives to be immutable.
20. The Court will not vacate a trial date or trial window save in extra-ordinary circumstances which render a fair trial impossible and then only as a last resort after all other options have been exhausted.
21. Any party who considers that circumstances have arisen which may mean that the trial will not be able to proceed on the date or dates fixed for trial should immediately notify the Court and the other party, and take out an application for directions.
Relevant considerations in determining an application to adjourn a trial include whether there has been non-compliance with court timetables; whether there have been late and deliberate tactical changes; whether there has been dilatory or inefficient conduct by the parties; whether interlocutory processes will need to be reset or duplicated; the length of time the proceeding has been on foot; the anticipated length of the adjournment; and the explanation or justification for the adjournment sought.[1] Generally, if an application is made late in the day, is inadequately explained, necessitates the vacation or adjournment of the dates set down for trial, and raises new claims, the party making the application bears a heavy burden to show why leave should be granted.[2]
In Aon Risk Services Australia Limited v Australian National University the High Court emphasised that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties;”[3] that “the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur;” and that “the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn”.[4]
Defendant’s contentions
The plaintiff contends that the circumstances identified by him are extraordinary, given that the propriety of the entire investigation is being called into question, and contends that the proceeding should be adjourned until the outcome of these investigations is known so that the court can have full information available to it.
The defendant contends that the plaintiff has not identified any extraordinary circumstances which would justify vacating the hearing dates and nor has it explored with the defendant “all other options” to maintain the trial dates.
The trial dates have been in place for almost six months, having been fixed, by consent, on 14 October 2021 and the defendant contends that the parties have exchanged evidence and agreed on a time table for the exchange of written submissions to accommodate the trial dates, and that the matter is ready for hearing.
Conclusion
I agree that the plaintiff has not shown any sufficient reason to adjourn the trial. The matters raised by the plaintiff are purely speculative. The plaintiff contends that further investigations by the police and the ICAC inspector might reveal something that the plaintiff might want to complain about. Like any other legal proceeding, this proceeding involves the determination of discrete issues of fact and law defined by the parties. It is not a roving enquiry into the integrity of ICAC.
The plaintiff also contends that he needs further time to do a number of things.
(a)So far as the expressed need for time to prepare further affidavit evidence to support the fresh claim in the amended originating motion is concerned:
·the amendment appears to raise a question of law only;
·the plaintiff has not identified what additional affidavit evidence will be required or how long it will take to prepare;
·the trial is not until 30 March; and
·the plaintiff has not put forward any evidence to suggest that it would not be possible to compile whatever affidavits may be necessary (if any) within time.
(b)So far as the expressed need to make an application for production of further material is concerned (and the assertion that documents discovered may lead to the addition of further grounds for judicial review): the plaintiff has had ample time to make an application for discovery and most of the categories of documents the plaintiff says it wants discovered do not arise out of any information recently revealed to the plaintiff. These include:
·documents recording or relating to communications or deliberations by the ICAC that refer or relate to the plaintiff;
·documents reviewed or relied on by the ICAC in the preparation of the Report or any draft report that refer or relate tothe plaintiff; and/or
·the provision of reports or draft reports to other individuals or entities that refer or relate to the plaintiff.
(c)So far as the other category of documents the plaintiff says it wants is concerned (ie other secret recordings), the evidence of Mr McCarthy (solicitor for the defendant) is that none exist and the ICAC has said the same in one of the newspaper articles relied on by the plaintiff.
The plaintiff also said it needed time to deliver interrogatories relating to the use made of the Secret Recording. That has been rendered unnecessary by the defendant’s offer to tell the plaintiff the answer to that question as soon as it is asked.
The plaintiff has not established that the trial should be adjourned.
(a)It would not be appropriate to adjourn the trial because of a hypothetical possibility that the plaintiff may want to add further grounds for review at some time in the future depending on the outcome of investigations by the police and the ICAC Inspector, especially as there is no reason to suppose either investigation has anything to do with the issues in this proceeding. To do so would be, as counsel contended, to “kick the can down the road” indefinitely.
(b)The defendant has agreed to provide the plaintiff with the information it needs in order to make the anticipated further amendments to the amended originating motion within 24 hours of being asked by way of informal interrogatories.
(c)Although it is not suggested that the plaintiff is in breach of the court ordered time table, the categories of documents the plaintiff now says he wants discovered have not suddenly become relevant as a result of recently obtained information.
(d)A further trial date is unlikely to be found before December 2022.
(e)It is desirable for the legal issues concerning the jurisdiction and powers of the ICAC raised in the proceeding to be settled sooner rather than later.
The application to adjourn the trial is refused.
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[1] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 189 [24], 224 [140]

[2] ibid at [4]

[3] ibid per French CJ at [26]

[4]supra per French CJ at [27]