Obeid v Lockley

[2018] NSWCA 71

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Obeid v Lockley [2018] NSWCA 71
Hearing dates:	4-5 September 2017
Date of orders:	12 April 2018
Decision date:	12 April 2018
Before:	Bathurst CJ at [1]; Beazley P at [205]; Leeming JA at [207]
Decision:	(1) Appeal dismissed.  (2) Appellants to pay the respondents’ costs of the appeal.
Catchwords:	TORTS – Misfeasance in public office – officers of ICAC appointed as senior investigators recorded contents of documents on video during execution of search warrant – whether officers held public office – whether officers acted in excess of power – whether officers were aware of or recklessly indifferent to a likely risk of harm to the plaintiffs – whether sufficient for there to be a reasonable foreseeable risk of harm – whether officers caused damage to the plaintiffs
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Public Sector Employment Legislation Amendment Act 2006 (NSW)
Cases Cited:	Amoo Gottfried & Co v Legal Aid Board (Unreported, English Court of Appeal, 1 December 2000) Anning v Anning (1907) 4 CLR 1049; [1907] HCA 13 Barnes v Addy (1874) LR 9 Ch App 244 Beaudesert Shire Council v Smith (1966) 120 CLR 145; [1966] HCA 49 Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228 Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84 Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 Cornwall v Rowan (2004) 90 SASR 269; [2004] SASC 384 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 DPP (Cth) v Thomas [2016] VSCA 237; 315 FLR 31 Dunlop v Woollahra Municipal Council [1982] AC 158 Erickson v Bagley [2015] VSCA 220 Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 Ex parte Kearney (1917) 17 SR (NSW) 578 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146; [2008] HCA 32 FHR European Ventures LLP v Cedar Capital Partners LLC [2015] 1 AC 250; [2014] UKSC 45 Garrett v Attorney-General [1997] 2 NZLR 332 Graham v Minister for Immigration [2017] HCA 33; 91 ALJR 890 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 Henly v Mayor and Burgesses of Lyme (1828) 5 Bing 91; 130 ER 995 Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Swansea City Council [1990] 1 WLR 54 Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90 Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204 Marks v Commonwealth (1964) 111 CLR 549; [1964] HCA 45 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; [1999] FCA 1101 Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315 Milroy v Lord (1862) 4 De GF&J 264 Mullett v Nixon [2016] VSC 512 Neilson v City of Swan (2006) 147 LGERA 136; [2006] WASCA 94 Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65 Nyoni v Shire of Kellerberrin [2017] FCAFC 157 Obeid v The Queen (2015) 91 NSWLR 226; [2015] NSWCCA 309 Okwume v Commonwealth [2016] FCA 1252 Perrett v Williams [2003] NSWSC 381 R v Bembridge (1783) 3 Dougl 327; 99 ER 679 R v Bowden [1996] 1 WLR 98 R v Cosford [2014] QB 81 R v McCann [1998] 2 Qd R 56 R v Quach (2010) 27 VR 310; [2010] VSCA 106 R v Whitaker [1914] 3 KB 1283 Re Baden’s Deed Trusts (No 2) [1973] Ch 9 Re Baden’s Deed Trusts [1971] AC 424 Re Lambie [2018] HCA 6 Rush v Commissioner of Police (2006) 150 FCR 165; [2006] FCA 12 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Sanders v Snell (No 2) (2003) 130 FCR 149; [2003] FCAFC 150 Shaw v Thomas [2010] NSWCA 169 Society of Lloyd’s v Henderson [2008] 1 WLR 2255 South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56 Spencer v Commonwealth (2015) 240 FCR 282; [2015] FCA 754 Sykes v Cleary (1992) 176 CLR 77; [1992] HCA 60 Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Valeriani v Gibson [1963] NSWR 1430 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48; [1980] HCA 12
Texts Cited:	M Aronson, “Misfeasance in Public Office: A Very Peculiar Tort” (2011) 35 Melbourne University Law Review 1 M Aronson, “Misfeasance in Public Office: Some Unfinished Business” (2016) 132 Law Quarterly Review 427 Tina Cockburn and Mark Thomas, “Personal Liability of Public Officers in the Tort of Misfeasance in Public Office – Part 1” (2001) 9 Torts Law Journal 1 at 7-8 P Finn, “Public Officers: Some Personal Liabilities” (1977) 51 Australian Law Journal 13
Category:	Principal judgment
Parties:	Edward Moses Obeid Senior (first appellant) Moses Edward Obeid (second appellant) Paul Edward Obeid (third appellant) Edward Joseph Obeid Junior (fourth appellant) Grant Lockley (first respondent) Paul Grainger (second respondent)
Representation:	Counsel: G Reynolds SC with D Hume (appellants) P Braham SC with R Scruby (first respondent) E Cheeseman SC with S Patterson (second respondent)   Solicitors: Deutsch Partners (appellants) Henry William Lawyers (first respondent) Crown Solicitor’s Office (second respondent)
File Number(s):	2016/317346
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2016] NSWSC 1376 Date of Decision: 27 September 2016 Before: Hammerschlag J File Number(s): 2015/201089

HEADNOTE

[This headnote is not to be read as part of the judgment]

Operation Jasper was an investigation conducted by the Independent Commission Against Corruption (ICAC) into the circumstances surrounding a decision made in 2008 by Mr Ian Macdonald, the Minister for Primary Industries and Minister for Mineral Resources at the time, to grant a coal exploration licence referred to as the “Mount Penny tenement”. Part of the investigation involved an examination of the activities of Locaway Pty Ltd, a company associated with the Obeid family.

Mr Grant Lockley and Mr Paul Grainger were members of the staff of ICAC appointed under s 104(1) of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act) who were involved in Operation Jasper. On 23 November 2011, Mr Lockley and Mr Grainger participated in the execution of a search warrant at premises occupied by Locaway. The execution of the warrant was recorded on video. A number of documents were seized during the execution of the warrant. Two documents, referred to as the “Solicitor-General’s Advice” and the “Heads of Agreement”, were not seized but instead had their contents recorded on video.

On 1 February 2013, during a public inquiry for Operation Jasper, senior counsel assisting ICAC provided Mr Moses Obeid with a physical copy of the Heads of Agreement and cross-examined him on it. He also tendered a redacted version of the Heads of Agreement to ICAC. A suppression order was made by ICAC in respect of the unredacted version of the Heads of Agreement shown to Mr Moses Obeid. Only the redacted version of the Heads of Agreement was made public. An article was published in the Sydney Morning Herald on the following day about the inquiry and the cross-examination of Mr Moses Obeid on the Heads of Agreement.

Mr Edward Obeid Senior, Mr Moses Obeid, Mr Paul Obeid, and Mr Edward Obeid Junior (the appellants) brought proceedings in the Supreme Court of New South Wales claiming that Mr Lockley and Mr Grainger (the respondents) had committed tort of misfeasance in public office. They claimed that the respondents were “public officers” for the purpose of the tort. The appellants claimed that the respondents lacked power under the warrant to record the Solicitor-General’s Advice and the Heads of Agreement on video and that the respondents were aware of or were recklessly indifferent to the absence of power and to a risk that the appellants would suffer harm. The appellants claimed to have suffered harm by reason of the publication of the article in the Sydney Morning Herald since the claims in the article were based only upon the redacted version of the Heads of Agreement.

The trial judge dismissed the claims on the basis that the respondents were not “public officers”. He also found that the respondents were not aware of or recklessly indifferent to and could not have reasonably foreseen any risk of harm to the appellants and that the harm relied upon by the appellants was too remote to have been caused by the respondents. However, he found in favour of the appellants that the respondents knew that the Solicitor-General’s Advice and the Heads of Agreement fell outside their powers under the warrant. The appellants appealed from the findings of the trial judge which were adverse to them. The respondents each filed notices of contention in relation to the finding of the trial judge which was adverse to them.

The issues on appeal were:

1   Whether the respondents were “public officers” for the purpose of the tort of misfeasance in public office (Grounds 1(a)-(e));

2   Whether the respondents were aware of, recklessly indifferent to, or could have reasonably foreseen a risk of harm to the appellants (Ground 1(f));

3   Whether the conduct of the respondents caused damage to the appellants (Ground 1(g));

4   Whether the respondents exercised a public power by causing the Solicitor-General’s Advice and the Heads of Agreement to be recorded on video (Notices of contention);

5   Whether the respondents were aware that recording the Solicitor-General’s Advice and the Heads of Agreement fell outside their powers under the warrant (Notices of contention); and

6   Whether the trial judge erred in granting the appellants leave to amend their pleading to allege a new basis upon which the recording of the Heads of Agreement was alleged to have contributed to ICAC obtaining the version of the Heads of Agreement which was used to cross-examine Mr Moses Obeid (Notices of contention).

The Court (Bathurst CJ, Beazley P and Leeming JA) held, dismissing the appeal:

“Public officers” (Grounds 1(a)-(e))

(i)   For the purpose of the tort of misfeasance in public office, a “public officer” at least includes a person who, by virtue of the particular position they hold, is entitled to exercise executive powers in the public interest. The powers exercised do not need to be expressly attached to the position which they hold: [103], [114]-[115] (Bathurst CJ); [206] (Beazley P); [208] (Leeming JA).

Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65; Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64; R v McCann [1998] 2 Qd R 56; Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84; Sanders v Snell(No 2) (2003) 130 FCR 149; [2003] FCAFC 150; Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90; Obeid v The Queen (2015) 91 NSWLR 226; [2015] NSWCA 309, considered.

(ii) The respondents were public officers. They were both employed as members of staff under s 104(1) of the ICAC Act and were designated as “senior investigators” with the powers assigned to that position by the ICAC Act. They executed the warrant in this capacity, which involved the exercise of public power. They were obliged to carry out their duties in this position in the public interest: [116]-[119] (Bathurst CJ); [206] (Beazley P); [208]-[212] (Leeming JA).

Awareness of, reckless indifference to or reasonable foresight of a risk of harm (Ground 1(f)) and causation (Ground 1(g))

(iii)   The appellants should not be permitted to raise a case on appeal on a basis different from that upon which they relied at trial. The possibility that the respondents could have conducted their cases differently, including by adducing further evidence, if the appellants had made different submissions at trial cannot be discounted: [151] (Bathurst CJ); [206] (Beazley P); [213] (Leeming JA).

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, referred to.

(iv)   On the basis that the case was put at trial, the primary judge did not err in concluding that any reputational harm caused by the publication of the article in the Sydney Morning Herald was not reasonably foreseeable and was not caused by the acts of the respondents due to the intervening acts by senior counsel assisting ICAC in only tendering the redacted version of the Heads of Agreement and by ICAC in making a suppression order in relation to the unredacted version of the Heads of Agreement: [151]-[152] (Bathurst CJ); [206] (Beazley P); [213] (Leeming JA).

(v)   Even if the appellants were permitted to raise a different case on appeal, it was necessary for them to establish either that the respondents were aware that the appellants were likely to suffer reputational harm or that they were recklessly indifferent to the fact that the appellants were likely to suffer reputational harm. It was not sufficient for the appellants to establish that it was reasonably foreseeable that they were likely to suffer reputational harm: [153] (Bathurst CJ); [206] (Beazley P); [242] (Leeming JA).

South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56, not followed.

Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65; Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64; Sanders v Snell (No 1) (1997) 73 FCR 569; [1997] FCA 229; Sanders v Snell(No 2) (2003) 130 FCR 149; [2003] FCAFC 150; Cornwall v Rowan (2004) 90 SASR 269; [2004] SASC 384, considered.

(vi)   The appellants failed to establish that the respondents were aware of or recklessly indifferent to the fact that the appellants were likely to suffer reputational harm. There was no evidence that the respondents read the Solicitor-General’s Advice or the Heads of Agreement or knew that they would be used in a public inquiry or were recklessly indifferent to that fact: [173]-[175] (Bathurst CJ); [206] (Beazley P); [243] (Leeming JA).

(vii)   The appellants failed to establish that there was a causal connection between the execution of the warrant and the harm alleged by the appellants. It was not shown that it was more likely than not that the recording of the Heads of Agreement on video contributed to ICAC obtaining the version of the Heads of Agreement which was used to cross-examine Mr Moses Obeid: [244]-[251] (Leeming JA).

Exercise of public power (Notices of contention)

(viii)   The respondents exercised public power by causing the Solicitor-General’s Advice and the Heads of Agreement to be recorded on video. The fact that they did not make the recording themselves does not mean that they did not exercise that power: [194]-[195] (Bathurst CJ); [206] (Beazley P); [258] (Leeming JA).

Awareness of absence of power (Notices of contention)

(ix)   The respondents were aware that the Solicitor-General’s Advice and the Heads of Agreement fell outside the scope of their power of seizure under the warrant. It was apparent on the face of the documents that they did not relate to the matters the subject of investigation under Operation Jasper. There was no evidence to justify any other basis for seizure of the documents: [196]-[200] (Bathurst CJ); [206] (Beazley P); [258] (Leeming JA).

Leave to amend pleading (Notices of contention)

(x)   It is unnecessary to express an opinion on this ground given the conclusion reached on the other grounds in this appeal: [201] (Bathurst CJ); [206] (Beazley P).

(xi)   The appellants should not have been permitted to amend their pleading during the trial to insert a paragraph which alleged a new basis upon which the recording of the Heads of Agreement on video was said to have contributed to ICAC obtaining the version of the Heads of Agreement which was used to cross-examine Mr Moses Obeid: [252]-[257] (Leeming JA).

Judgment

1. BATHURST CJ: By an investigation known as “Operation Jasper”, the Independent Commission Against Corruption (ICAC) conducted an investigation into the circumstances surrounding a decision made in 2008 by Mr Ian Macdonald, the Minister for Primary Industries and Minister for Mineral Resources at the time, to grant a coal exploration licence referred to as the “Mount Penny tenement”, located in Bylong Valley in New South Wales. ICAC found that each of Mr Macdonald, Mr Edward Obeid Senior and Mr Moses Obeid engaged in corrupt conduct in connection with the granting of the Mount Penny tenement. It also made adverse credibility findings against Mr Edward Obeid Senior, Mr Moses Obeid and Mr Paul Obeid. The first, second and third appellants in this appeal are Mr Edward Obeid Senior, Mr Moses Obeid and Mr Paul Obeid respectively. ICAC made no findings of corrupt conduct or adverse credibility against the fourth appellant, Mr Edward Obeid Junior.

2. The first and second respondents in this appeal are Mr Grant Lockley and Mr Paul Grainger, both of whom were employed by ICAC in 2011 and participated in the execution of a search warrant at premises in Birkenhead Point, Drummoyne, Sydney, occupied by Locaway Pty Ltd (Locaway), a company associated with the Obeid family. The appellants contend that, in executing the warrant, and in particular, in causing the contents of certain documents at the premises to be recorded on video, the respondents committed the tort of misfeasance in public office, as a result of which the appellants suffered damage.

3. The appellants brought proceedings in the Common Law Division of the Supreme Court against the State of New South Wales, ICAC, the Commissioner of ICAC, senior counsel assisting ICAC in relation to Operation Jasper, and the respondents. The appellants sought to set aside the findings of corrupt conduct and adverse credibility made against Mr Edward Obeid Senior and Mr Moses Obeid, and the finding of adverse credibility made against Mr Paul Obeid. The appellants also alleged, on various grounds, that the defendants were liable to them in damages for the alleged commission of the tort of misfeasance in public office. The proceedings at trial were confined to issues of liability, with an assessment of damages to be conducted at a separate hearing.

4. The primary judge dismissed the proceedings. The appellants have only appealed against the dismissal of the proceedings against Mr Lockley and Mr Grainger, in relation to the alleged commission of the tort of misfeasance in public office.

5. It is necessary to set out the background facts in some detail. By and large, these facts are uncontroversial, although there was considerable debate concerning the inferences which should be drawn from them on this appeal.

The issue of the warrant

6. As I have indicated, Operation Jasper was an ICAC investigation into the circumstances surrounding the grant of a coal exploration licence in respect of the Mount Penny tenement by Mr Macdonald.

7. On 22 November 2011, in connection with Operation Jasper, Mr Lockley applied for a warrant to enter the premises “known as Locaway Pty Limited, Suite 501-501A, Henry Lawson Business Centre, Roseby Street, Drummoyne, Sydney” (the premises) and to search for and seize certain documents. In the application, Mr Lockley described himself as a “Senior Financial Investigator” and swore that he was an officer of ICAC authorised to apply for a search warrant under s 40(4) of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act).

8. The application set out in some detail the nature of the investigation and enumerated the documents which were to be searched for and seized. The broadest category of documents included in the application was “any correspondence, notes, accounts and financial records … that are connected with” Operation Jasper.

9. The warrant was issued on 22 November 2011. It authorised a number of persons, including Mr Lockley and Mr Grainger, to execute the warrant. The authorisation, so far as it is relevant, was in the following terms:

“1.   to enter the premises known as Locaway Pty Limited, Suite 501-501A, Henry Lawson Business Centre, Roseby Street, Drummoyne, Sydney in the State of New South Wales, being an office (‘the premises’) and

2.   to search for records and documentation relating to Locaway Pty Ltd, United Pastoral Group Pty Ltd, Mincorp Investments Pty Limited and Desert Sands Holdings Limited (including correspondence with shareholders of Mincorp Investments), Justin Kennedy Lewis Pty Limited, Geble Pty Ltd, Justin Kennedy Lewis Trust, Mona Plains Trust, Elbeg Unit Trust, financial records relating to the disbursement of funds to the shareholders of Mincorp Investments relating to the sale of shares in Loyal Coal Pty Limited, any record that identified the directors, shareholders or bank accounts of Desert Sands Holdings Limited and any correspondence, notes, accounts and financial records, whether in paper, computer or electronic form, computer tapes and any magnetic, electronic or other computer storage medium containing relevant information and any hard copy printout of any such information, connected with the matter that is being investigated under the Independent Commission Against Corruption Act concerning allegations or complaints of the following nature that:

in about November 2007, former government minister Edward Obeid misused confidential New South Wales government information to enable his family company, Locaway Pty Ltd, and at a later date, Justin Kennedy Lewis Pty Ltd and Geble Pty Ltd, to purchase property within a potential mine licence area in the Bylong Valley prior to the awarding of exploration licenses; and

that between May 2008 and June 2009, former government ministers Edward Obeid and Ian Macdonald misused confidential New South Wales government information by disclosing it to (Paul) Gardner Brook, who used that information to assist a company, Monaro Mining NL to secure exploration licences from the New South Wales government.

and to seize any such documents or other things found in or on the premises and deliver them to the Independent Commission Against Corruption.

…

In executing this search warrant the applicant may exercise the powers provided by the Law Enforcement (Powers and Responsibilities) Act 2002 and any other Act named above. These include the following powers:

…

(b)   to use any persons necessary to assist in the execution of this warrant,

…

(e)   to operate electronic and other equipment brought to the premises or at the premises to examine a thing found at the premises,

…

(i)   to seize a document or other thing that the person executing this search warrant believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth, a State or a Territory, and the first-mentioned person believes on reasonable grounds that it is necessary to seize the document or other thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence,

(j)   to retain a document or other thing seized pursuant to this search warrant if, and for so long as, its retention by the Commission is reasonably necessary for the purposes of the investigation. If the retention of the document or other thing by the Commission is not, or ceases to be, reasonably necessary for such purposes, the Commission shall cause it to be delivered to the person who appears to the Commission to be entitled to possession of the document or other thing, or the Attorney General or the Director of Public Prosecutions, with a recommendation as to what action should be taken in relation to the document or other thing.”

The execution of the warrant

10. Mr Lockley and Mr Grainger participated in the execution of the warrant at the premises on 23 November 2011. Several other persons authorised to execute the warrant also participated. The execution of the warrant was recorded on video by Mr Darren Curd (the Video Recording), who was another person authorised to execute the warrant. A number of documents were seized during the search of the premises. Some documents were not seized but instead had their contents recorded on video by Mr Curd. It was the recording of the contents of two of these documents which were not otherwise seized which formed the basis of the claims against Mr Lockley and Mr Grainger.

11. The first document was described by the primary judge as a written advice from the Solicitor-General of New South Wales to the Crown Solicitor on behalf of the Minister for Infrastructure, dealing with “a question of compliance with government guidelines for privately financed projects with respect to a proposal by Australian Water Holdings Pty Ltd concerning the Rouse Hill development area and the North West Growth Centre” (the Solicitor-General’s Advice).

12. The second document was dated 4 November 2010 and was entitled “Heads of Agreement – Australian Water” (the Heads of Agreement). It was described by the primary judge as being “an agreement between parties described as the Obeid Family Trust and Nicholas Anthony Di Girolamo, and provides for the sale by Di Girolamo to the Obeid Family Trust of shares in Australian Water Pty Ltd and Australian Water Holdings Pty Ltd” for $3 million. From its coversheet, the primary judge noted that it appeared to have been prepared by a law firm called Lands Legal.

13. The Heads of Agreement included the following provisions:

“General Terms

1   Sale of Shares

1.1   Sale

In consideration of payment by the Purchaser to the Vendor of the Purchase Price in accordance with clause 1.2, the Vendor agrees to transfer the Shares to the Purchaser on Monday 8 November 2010. On that date the Vendor must deliver to the Purchaser share certificates for the Shares.

1.2   Purchase Price

The Purchase Price is payable as follows:

1.   On Monday 8 November 2010 - $1,000,000

2.   No later than 31 March 2011 - $2,000,000

…………..

3   Interest and Consultancy

3.1   Interest

The Vendor shall pay to the Purchaser a return of no less than $300,000 per annum payable monthly in advance on the first day of each month as interest on the investment made by the Purchaser pursuant to this agreement. This payment shall commence at the time the payment referred to in clause 1.22 is made. If these payments are not made on the due date, the payment shall increase to $360,000 per annum as a genuine loss suffered by the Purchaser for the payment being late.

3.2   Consultancy

The Vendor shall procure that the Companies enter into a consultancy agreement with an entity nominated by the Purchaser on the following terms:

(a)   Ten (10) years with two subsequent options of ten (10) years each or as mutually agreed

(b)   $350,000 per annum plus GST payable monthly in advance

(c)   Commencing at the time the payment referred to in clause 1.22 is made

(d)   Other such terms as are appropriate for such agreements.”

14. Other documents which were not seized also had their contents recorded on video. This included forms for 30 ordinary shares in Australian Water Holdings Pty Ltd (Australian Water Holdings) and 100 ordinary shares in Australian Water Pty Ltd (Australian Water) to be transferred (the Share Transfers). The transferor in each case was Mr Di Girolamo and the Share Transfers were signed by him. The names of the transferees were not inserted.

15. The appellants did not rely upon the recording of the contents of any documents apart from the Solicitor-General’s Advice and the Heads of Agreement in their claims against Mr Lockley and Mr Grainger.

16. In addition to recording the contents of these documents, the Video Recording made by Mr Curd also recorded the actions of the investigators in executing the warrant. Relevant extracts from the Video Recording were shown to this Court at the hearing of this appeal.

17. Both Mr Lockley and Mr Grainger produced extracts from transcripts of what was shown on the Video Recording at the trial. Of relevance is the following portion of the transcript produced by Mr Grainger:

“(1:09:38)   (Grainger is seen looking at the collation of documents that is the Solicitor-General’s Advice documents)

(1:09:51)

Grainger:   Joe Tripodi legal advice from the Crown Solicitor’s office

Lockley:   Relating to?

(1:10:00)

Grainger:   A company that won a public private partnership … Australian Water Holdings

…

(1:11:02)   (Grainger seen again looking at Solicitor-General’s Advice documents)

Grainger:   Interesting, that’s interesting why they would have this

…

(1:11:26)

Grainger:   Do you want to video that Curdy video each page of that and the covering

Curd:      Yep. Do you want to take that?

Lockley:   Doesn’t relate though does it? (unintelligible) … [(1:11:48) video of the Solicitor-General’s Advice documents commences]

…

(1:18:29)   (Last page of filming of Solicitor-General’s Advice documents)

Unidentified ICAC Officer:   Grant, these are all ninety nine and that’s too old mate?

Lockley:   Yes

Unidentified ICAC Officer:   (unintelligible) farm stuff

(1:18:38)

Lockley:   Yes, yes yes too old don’t worry about it … What do you want to do with that? (Share Transfers and Heads of Agreement)

Grainger:   Video

Lockley:   Video that front page, these pages

Unidentified ICAC Officer:   Sorry did you say too old mate?

Lockley:   Yes, too old

Curd:      All of them?

Grainger:   Yes

Curd:      I might do this up here …

(1:18:51)   (Video of the Share Transfers and Heads of Agreement commences)

…

(1:21:55)   (Last page of filming of AWH transfer)”

18. The transcript produced on behalf of Mr Lockley was in materially the same form. No suggestion was made at the hearing of this appeal that either transcript was inaccurate. My viewing of the Video Recording was consistent with the transcript set out above.

19. The primary judge summarised the relevant parts of Mr Lockley and Mr Grainger’s participation in the execution of the warrant as follows at [304]-[305]:

“[304]   Lockley’s relevant participation in the enterprise was:

(1)   asking to what the Advice related;

(2)   taking the Advice from Grainger and passing the Advice to Curd after Grainger requested Curd to video it;

(3)   observing that the Advice ‘doesn’t relate though, does it?’;

(4)   taking the Heads of Agreement from Grainger and passing it to Curd;

(5)   asking Grainger what Grainger wanted to do with it; and

(6)   telling Curd to video it after Grainger told Lockley to video it.

[305]   Grainger’s relevant participation in the enterprise was:

(1)   examining the bundle of documents and identifying the Advice;

(2)   responding to Lockley’s question as to what the Advice related;

(3)   requesting Curd to video it and handing it to Lockley to pass to Curd;

(4)   handing the Heads of Agreement to Lockley; and

(5)   telling Lockley that he wanted it to be videoed.”

Subsequent events

20. On 17 December 2012, Mr Grainger sent an email under the heading “Operation Credo” to Ms Meaghan Fleeton, whom the primary judge described as “a Principal Lawyer with ICAC”. Mr Grainger requested that a summons under s 35 of the ICAC Act be prepared requiring Lands Legal to produce the following documents:

“A full unedited copy of all documents and records (including electronic communication) in the possession or control of Lands Legal which relate to Australian Water Holdings and/or the Obeid Family Trust and/or Nicholas Gi Girolamo and/or Eddie Obied Snr, Eddie Obied Jnr, Paul Obied, Moses Obied oe Gerrard Obied [sic].”

21. Operation Credo was an ICAC investigation into, amongst other things, an allegation that Mr Edward Obeid Senior and Mr Moses Obeid held an interest in Australian Water Holdings and that they exercised influence in the outcome of contract negotiations between Australian Water Holdings and Sydney Water Corporation for financial benefit.

22. On 19 December 2012, Ms Fleeton forwarded a memorandum (the Fleeton Memorandum) to the Commissioner of ICAC recommending that he sign a summons to produce under s 35 of the ICAC Act addressed to Lands Legal (the Lands Legal Summons). The Memorandum contained the following remarks:

“1. The purpose of this minute is to recommend you sign the attached section 35 summons to attend and produce documents addressed to Sevag Chalabian, Solicitor Director of Lands Legal.

…

11.   Current preliminary investigations have revealed that Mr E Obeid and Mr M Obeid have an interest in AWH through Gregory Skehan (‘Mr Skehan’) and Mr Joseph Georges (‘Mr Georges’). Mr Skehan acts as Mr E Obeid’s lawyer and is also a director of AWH. Mr Georges, a close associate of Mr E Obeid holds a large stake in AWH which was purchased through JMG Corp Pty Limited. It is also believed that Mr M Obeid acted in a paid consulting role to AWH during 2008. During a search warrant conducted on Mr E Obeid’s business premises in November 2011 a number of AWH documents were located but were not seized.

12.   Further enquiries have revealed that Mr Obeid had a controlling interest in AWH. In November 2010 a ‘Heads of Agreement’ revealed that Mr Nicholas Di Girolamo (‘Mr Di Girolamo’), current Executive Chairman of AWH, paid an amount of $3,000,000 to the Obeid family trust. It is unclear what this money was intended for but the Heads of Agreement detailed that an agreement existed between ‘The Obeid Family Trust’ and ‘Nicholas Di Girolamo’ and ‘AWH’. This agreement might have involved a share transfer from the Obeid family Trust to Mr Di Girolamo. The Heads of Agreement was drafted by Lands Legal. Sevag Chalabian and Andrew Wennerborn are the Solicitor Directors of Lands Legal.”

23. The primary judge found that the recorded version of the Heads of Agreement obtained from the Video Recording was used to prepare the Fleeton Memorandum and the Lands Legal Summons in order to obtain a copy of the Heads of Agreement for the purpose of Operation Credo. This finding was challenged by the respondents in their amended notices of contention filed in this appeal.

24. On 1 February 2013, during a public inquiry for the purpose of Operation Jasper and two other inquiries, but not Operation Credo, senior counsel assisting ICAC showed Mr Moses Obeid a copy of the Heads of Agreement and made a redacted version available to the Commissioner of ICAC. Clause 3 of the Heads of Agreement was deleted in the redacted version provided to the Commissioner, as were clauses 4.1(c) and 4.1(d).

25. Clause 3 provided for payments by Mr Di Girolamo to an entity described as the “[Obeid Family Trust]” as purchaser of the shares in Australian Water and Australian Water Holdings, and for Mr Di Girolamo to procure those two companies to “enter into a consultancy agreement with an entity nominated by” the “[Obeid Family Trust]”. Clauses 4.1(c) and 4.1(d) made provision for certain matters in relation to the consultancy agreement. It is by no means clear why Mr Moses Obeid was cross-examined on this particular document at a public inquiry for the purpose of Operation Jasper or the other inquiries, as distinct from Operation Credo.

26. The redacted version of the Heads of Agreement was tendered at the public inquiry. ICAC made a suppression order under s 112(1) of the ICAC Act in respect of the unredacted version of the Heads of Agreement shown to Mr Moses Obeid, but not the redacted version provided to the Commissioner of ICAC and tendered at the inquiry.

27. On 2 February 2013, the following article was published in the Sydney Morning Herald newspaper (the SMH Article):

“Obeid’s billion dollar bonanza

THE family of Labor kingmaker Eddie Obeid struck an agreement just before the last election to take a secret one-third share in a water company pushing for a billion-dollar privatisation deal with the then state Labor government.

The explosive revelation came during heated questioning of Mr Obeid’s son Moses at a corruption inquiry on Friday.

Moses Obeid initially denied ever seeing a document titled ‘Heads of Agreement – Australian Water’, which was dated November 2010. But the document, which would deliver to an Obeid family trust a third of the company for $3 million, was signed by him, his brothers Paul and Eddie jnr, and their close associate Nick Di Girolamo, the head of Australian Water Holdings, who has close ties to the Liberal Party.

Last January the O’Farrell government signed a 25-year agreement with the company – without going to tender – giving it the right to roll out all of the $500 million worth of water infrastructure still needed in the north-west growth centre.

A Herald investigation has revealed that by the time the secret Obeid deal was signed, Eddie Obeid had extensively lobbied his colleagues to assist the company, which wanted the government to agree to sell it all of Sydney Water’s operations in the north-west. It has also confirmed that prior to the 2011 election the former planning minister Tony Kelly rewrote a top-level cabinet minute to support the company’s proposal even though it had been rejected by senior bureaucrats.

A government source familiar with the privatisation proposal described it as ‘a complete and utter rort … the size of that work would have been billions’.

Had that proposal proceeded, the Obeids might have been sitting on a windfall as big as the coal deals now being investigated by the Independent Commission Against Corruption.

The inquiry has heard that the Obeid family still has a 9.3 per cent interest in a coal resource at Mount Penny for which they have already received $30 million. Should a mining licence be granted, the mine could be worth up to $1 billion.

It was suggested to Moses Obeid at Friday’s hearing that the family’s share in the mine could deliver a further $50 million to $100 million to the Obeids. ‘I hope it’s worth more,’ he said.

Before Moses Obeid was shown the Australian Water document, he was asked why a telephone intercept had recorded him in 2011 telling an associate that his brother Paul was going to be ‘at Australian Water tomorrow’. Asked whether the Obeids had ever held any interest in the company, Moses replied: ‘Not that I know of.’ After a short break, he was shown page seven of the document which contained his signature.

Moses Obeid told the commission the agreement might have been ‘superseded’ by a $3 million loan to Mr Di Girolamo, with shares in the company used to secure this loan.

In December, Mr Di Girolamo said: ‘The Obeids have no pecuniary interest or any interest in my shares in Australian Water.’

Accounts tendered at ICAC show the Obeids have a $3.4 million investment in Australian Water but Mr Di Girolamo said the money was a personal loan from Eddie Obeid jnr.

A Herald investigation last year unearthed the Obeids’ extensive links to the company, including that Eddie Obeid and his son Eddie jnr had brokered a deal that installed the former Labor treasurer Michael Costa as the company’s chairman.

Both Mr Kelly and Mr Costa hung up on the Herald twice.”

The pleaded case

28. In their second further amended statement of claim (the statement of claim), the appellants pleaded that both Mr Lockley and Mr Grainger were holders of public office. They pleaded that both Mr Lockley and Mr Grainger “examined the Heads of Agreement and formed the opinion that it fell outside the scope of [the warrant] and could not lawfully be seized, copied or read further”, but notwithstanding, they instructed Mr Curd to record the contents of the document on video. They pleaded that the conduct was “an unauthorised and unlawful copying or recording of a document that was not authorised by, and was in excess of the powers conferred upon them by, [the warrant] and the ICAC Act”. They pleaded that this act of Mr Lockley and Mr Grainger was “intended to cause … damage, reputational, and financial harm” to the appellants, or that, alternatively, Mr Lockley and Mr Grainger were “recklessly indifferent” as to whether the act would do so. Contrary to the manner in which the case was put in this appeal, the statement of claim did not assert liability on the basis that the stated harm was reasonably foreseeable. However, no point was taken by the respondents in respect of this matter.

28. The pleading against Mr Lockley and Mr Grainger in respect of the Solicitor-General’s Advice was in similar terms.

29. The appellants claimed that, as a result of the conduct of the defendants in the proceedings, including Mr Lockley and Mr Grainger, the appellants suffered loss and damage, including “reputational harm”.

30. No material facts were pleaded against Mr Lockley and Mr Grainger to demonstrate how causing the recording of the contents of either the Solicitor-General’s Advice or the Heads of Agreement on video caused the appellants to suffer loss and damage. By contrast, in the claims against ICAC and the Commissioner of ICAC in relation to the Heads of Agreement, it was asserted that the making of the suppression order in respect of the unredacted version of the Heads of Agreement, and not the redacted version, was done knowingly in excess of power with the knowledge that it would be “likely to cause damage, reputational and financial harm” to the appellants. Relevantly, it was particularised in the statement of claim that “the natural consequence of there being unequivocal evidence of members of the Obeid family having an equity interest in Australian Water [that is, the consequence of the redaction of cl 3 of the Heads of Agreement] was that it portrayed Moses Obeid as having lied in giving evidence and that was not the case”. However, no particulars of loss or damage in relation to the Solicitor-General’s Advice were provided even in respect of the claims against ICAC and the Commissioner of ICAC.

31. The statement of claim also pleaded the publication of the SMH Article. The statement of claim said that the SMH Article made allegations based on the “suppressed” version of the Heads of Agreement. It is clear that that should refer to the “redacted” version from the primary judge’s summary of the claim against the Commissioner of ICAC at [265] and the claim against Mr Lockley and Mr Grainger at [298].

The primary judgment

33. The primary judge first discussed generally the legal principles concerning the tort of misfeasance in public office. He stated that it was an intentional tort which was constituted by “an act done by a public officer in excess of authority, with the intention of causing harm to a plaintiff, or which the officer knows, or ought to know is beyond power, and which involves a foreseeable risk of harm”. He stated that the mental element of the tort was satisfied if “the public officer engages in the impugned conduct with the intention of inflicting injury, or with the knowledge that there is no power to engage in that conduct and it is calculated to produce injury, or where the officer acts with reckless indifference as to the existence of power to support the impugned conduct”.

34. The primary judge stated that there was some “uncertainty as to whether it is sufficient that the official knew that the act was beyond power and that there was a foreseeable risk of harm, or whether it is necessary that the officer actually foresaw a risk that the conduct was likely to harm the plaintiff but proceeded not caring about that risk”. He stated that he was inclined to the second, “more stringent” of the two alternative tests, but said that it was not necessary for him to express a concluded view on the matter.

35. The primary judge stated, referring to the decision of the Victorian Court of Appeal in Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84 and the decision of this Court in Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90, that the tort was “principally concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the public good and which is attached to the office”.

36. The primary judge stated that both Mr Lockley and Mr Grainger were appointed under s 104 of the ICAC Act as “members of staff” of ICAC. He described their functions in the following terms at [307]-[308]:

“[307]   Lockley was a senior financial investigator whose role, as described in his position description, was to investigate suspicions or allegations of corruption with an emphasis on financial aspects, preparing reports, assisting in preparing briefs of evidence for criminal or disciplinary offences and providing high level financial investigative advice. He reported to Fox as Chief Investigator and no-one reported to him.

[308]   Grainger was a senior investigator whose role, as described in his position description, was to support the Chief Investigator by providing advice and leading, managing and mentoring investigation staff to ensure allegations of corrupt conduct are thoroughly investigated and where appropriate, to coordinate and prepare briefs for public inquiries to be conducted by the Commission and coordinate and prepare criminal briefs for referral to the DPP for consideration of criminal public prosecutions. He too reported to Fox.”

37. The primary judge stated that their authority to enter the premises and search for and seize documents stemmed from their “ad hoc naming” in the warrant and not from any position which they occupied in relation to ICAC.

38. The primary judge therefore stated that, in executing the warrant, Mr Lockley and Mr Grainger were not exercising “a power which they had from any official position to which continuing functions or duties were assigned”, and that the “hallmarks of public office are absent”, so that the appellants’ claim failed “at the first hurdle”. However, the primary judge then went on to deal with the other aspects of the appellants’ claim.

39. The primary judge concluded that neither the Solicitor-General’s Advice nor the Heads of Agreement were covered by the warrant. He said that neither document referred to “any of the entities identified in paragraph 2 of the warrant or the subject matter of the allegations or complaints described in the warrant". He said that it was “obvious” that both documents “concern endeavours unconnected with those to which [the warrant] was directed”. He rejected the submission that the Heads of Agreement could conceivably relate to Locaway because an unnamed “Obeid Entity” executed the Heads of Agreement which could have been that company. He said that this connection was not established as a fact and that there was “no reason to think that this notional possibility crossed the mind” of either Mr Lockley or Mr Grainger.

40. The primary judge accepted that copying the contents of a document by recording them on video was permissible “if it is reasonably incidental to, and done for the purpose of the exercise of the powers conferred by the warrant”. He said that this “was not this case”, as the documents were “manifestly not covered by the warrant”. He also said that the manner in which the recording was done, that is, “to capture the full detail of the documents, together with the fact they were not seized, is inimical to the suggestion that they were videoed for the purpose of assessing whether they were covered” by the warrant. He found that both Mr Lockley and Mr Grainger knew that both documents were not covered by the warrant.

41. The primary judge also rejected a submission made by Mr Grainger that recording the contents of the documents on video was permissible under s 47(1) of the ICAC Act, as they were documents which Mr Grainger believed on reasonable grounds were admissible in a prosecution for an indictable offence, or may have been concealed, lost, mutilated, destroyed or used in committing an offence. He said that there was no evidence of any such belief on the part of Mr Grainger and that no relevant indictable offence was identified.

42. The primary judge stated that the exercise of the power by Mr Lockley and Mr Grainger was causing Mr Curd to video the documents.

43. The primary judge also held that Mr Lockley and Mr Grainger knew that they were acting in excess of power. He stated that they were “experienced investigators” and that “a cursory glance at the documents makes it clear that they were not covered” by the warrant. He referred to the conversation between Mr Lockley and Mr Grainger about the documents during the execution of the warrant which I have set out in the extracts from the transcript of the Video Recording at [17] above. He stated that the conversation showed an awareness that the Solicitor-General’s Advice and the Heads of Agreement were outside the scope of the warrant. He repeated the comment that, if they thought that the documents fell within the scope of the warrant, then there was no reason not to seize them.

44. The primary judge pointed out that neither of the respondents gave evidence. He said that no reason was given for Mr Lockley not entering the witness box. He referred to the fact that Mr Grainger had suffered an intracerebral haemorrhage prior to the trial and to the various medical reports concerning his fitness to give evidence. He stated that the views of the various doctors disclosed by the different reports obtained by the appellants and Mr Grainger could be reconciled. He concluded that Mr Grainger was fit to give evidence and that steps could have been taken to reduce any stress by permitting him to give evidence by video-link and by “strictly controlling cross-examination”. The primary judge stated that Mr Grainger could also have sought a ruling that he be permitted to read an affidavit as to his state of mind without having to be cross-examined.

45. The primary judge stated that, in those circumstances, it would have been permissible to draw an inference that Mr Grainger’s evidence would not have assisted him, but that it was not necessary to do so in any event as he was satisfied that Mr Grainger knew that he was acting outside the warrant.

46. However, the primary judge concluded that it was difficult to contemplate what damage Mr Lockley and Mr Grainger could have thought would be caused by recording the contents of the documents on video. He said that, in those circumstances, “it is not fairly open to attribute to them recklessness with respect to causing any damage”.

47. In relation to causation, the primary judge noted that the appellants submitted that the information in the contents of the documents recorded on the video was “directly linked” to the issue of the Lands Legal Summons, which would not have occurred but for the recording of the Heads of Agreement on video during the execution of the warrant. They then submitted that the version of the Heads of Agreement returned on the Lands Legal Summons was used in the cross-examination of Mr Moses Obeid, in a manner which resulted in “stress, humiliation, embarrassment and reputational damage”. As the primary judge noted, this was “presumably by reason of the [SMH Article] – again on the footing that the article would have been different if the unredacted version had been made available to the newspaper”.

48. The primary judge restated the chain of causation asserted by the appellants in the following terms at [350]:

“(1)   the information was used by someone else (who made a decision) to prepare a Summons to Lands Legal for documents which produced a version of the Heads of Agreement;

(2) the Heads of Agreement were redacted and the redacted portion was, by the Commissioner acting under s 112(1) [of the ICAC Act], made the subject of a suppression order;

(3)   [Senior counsel assisting ICAC] chose to cross-examine, publicly, only on the redacted version;

(4)   the press consequently reported the cross-examination in a manner that would not have occurred but for the redaction and cross-examination on it; and

(5)   that manner of reporting placed the plaintiffs in a bad light.”

49. The primary judge stated that he was prepared to accept that the information gathered from the recorded version of the Heads of Agreement obtained from the Video Recording was used in the preparation of the Fleeton Memorandum and the Lands Legal Summons. He referred to the fact that the Fleeton Memorandum noted that, during the execution of the warrant, “a number of Australian Water Holdings documents were located, but not seized”. He said that this could safely be said to be a reference to the Heads of Agreement. He referred to the fact that the Lands Legal Summons required the production of any document “relating to any interest in Australian Water Holdings, held either directly or indirectly by the Obeid Family Trust”, which was an entity referred to in the Heads of Agreement. In those circumstances, he concluded that the version of the Heads of Agreement produced by Lands Legal was used in cross-examining Mr Moses Obeid. He noted that ICAC did not suggest any particular alternative source.

50. However, he stated that “it cannot be sensibly suggested that the damage alleged finally to have been suffered was caused by the initial act complained of”. He said that it was “too remote from the ultimate asserted consequence to be viewed as having caused it”. He stated that there were “too many intervening independent acts of others between” the initial acts of Mr Lockley and Mr Grainger in causing Mr Curd to record the contents of the documents on video and the alleged consequences.

51. In those circumstances, the primary judge rejected the appellants’ claims against Mr Lockley and Mr Grainger.

The appeal

52. In their amended notice of appeal, the appellants challenged the primary judge’s conclusion that the respondents were not public officers, his conclusion that the respondents “did not know, were not reckless as to whether and could not reasonably have foreseen their videotaping of the documents would or might cause damage to the appellants”, and his conclusion on causation and damage.

53. By his amended notice of contention, Mr Lockley contended that the primary judge erred in holding that Mr Lockley participated in directing or otherwise causing Mr Curd to record the contents of the Heads of Agreement on video, that the Solicitor-General’s Advice and Heads of Agreement were not covered by the warrant, and that Mr Lockley knew that they were not so covered. Mr Lockley further contended that the primary judge erred in concluding that his conduct in relation to Mr Curd was an exercise of power, that he caused Mr Curd to do something in excess of power, and that Mr Lockley knew this to be the case.

54. In relation to causation, Mr Lockley contended that the primary judge erred in concluding that the information obtained from recording the contents of the Heads of Agreement on video was used by ICAC in drafting the Fleeton Memorandum and the Lands Legal Summons, and that the version of the Heads of Agreement produced on that Summons was used in the cross-examination of Mr Moses Obeid.

55. Finally, Mr Lockley contended that the primary judge erred in concluding that, if he was otherwise liable, he was not entitled to protection from liability by virtue of s 109 of the ICAC Act.

56. Mr Grainger also filed an amended notice of contention. Generally speaking, it raised the same issues as those in Mr Lockley’s amended notice of contention. However, he added the contention that the primary judge erred in holding that, for the purpose of the tort of misfeasance in public office, constructive knowledge was sufficient to “establish that an alleged tortfeasor knew he or she was acting in excess of power” and also that the primary judge erred in drawing an inference against him in accordance with Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel inference). He also contended that, if it was found that he had acted unlawfully, then the Court should refuse the declaratory relief sought by the appellants as a matter of discretion.

57. It can thus be seen that each of the conclusions reached by the primary judge on the elements of the tort of misfeasance in public office were challenged either by the appellants in their amended notice of appeal or by the respondents in their amended notices of contention. It is convenient to deal with the issues raised under the headings used by the appellants in their written submissions in chief and their written submissions in reply.

58. Prior to dealing with these issues, it is necessary to set out the provisions of the ICAC Act which are relevant to the disposition of this appeal. The appeal proceeded on the basis that the relevant version of the Act was the version which was in force at the time of the execution of the warrant on 23 November 2011. All references to the ICAC Act are to the provisions of that version of the Act.

The legislation

59. Part 2 of the ICAC Act provides for the establishment of ICAC. Section 4(3) provides that ICAC’s functions are exercisable by the Commissioner of ICAC, and that “any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, shall be taken to have been done by” ICAC.

60. The expression “public official” is relevantly defined in s 3(1) of the ICAC Act as follows:

“public official means an individual having public official functions or acting in a public official capacity, and includes any of the following:

…

(g)   an officer or temporary employee of the Public Service or the Teaching Service,

…

(i)   a person in the service of the Crown or of a public authority,

…

(l)   the holder of an office declared by the regulations to be an office within this definition,

(m)   an employee of or any person otherwise engaged by or acting for or on behalf of, or in the place of, or as deputy or delegate of, a public authority or any person or body described in any of the foregoing paragraphs.”

61. Section 5(1) provides for the appointment of a Commissioner, and s 5(2) provides that the Commissioner “has and may exercise the functions conferred or imposed on the Commissioner by or under [the ICAC Act] or any other Act”. Section 6 provides for the appointment of Assistant Commissioners.

62. Part 4 of the ICAC Act defines the functions and powers of ICAC. Sections 40 and 41 deal with search warrants. They are in the following terms:

“40   Issue of search warrant

(1)   An authorised officer to whom an application is made under subsection (4) may issue a search warrant if satisfied that there are reasonable grounds for doing so.

(2)   The Commissioner, on application made to the Commissioner under subsection (4), may issue a search warrant if the Commissioner thinks fit in the circumstances and if satisfied that there are reasonable grounds for doing so.

(3)   Search warrants should, as far as practicable, be issued by authorised officers, but nothing in this subsection affects the discretion of the Commissioner to issue them.

(4)   An officer of the Commission may apply to an authorised officer or the Commissioner for a search warrant if the officer has reasonable grounds for believing that there is in or on any premises a document or other thing connected with any matter that is being investigated under this Act or that such a document or other thing may, within the next following 72 hours, be brought into or onto the premises.

41   Authority conferred by warrant

(1)   A search warrant authorises any member of the Police Force, or any other person, named in the warrant:

(a)   to enter the premises, and

(b)   to search the premises for documents or other things connected with any matter that is being investigated under this Act, and

(c)   to seize any such documents or other things found in or on the premises and deliver them to the Commission.

(2)   A member of the Police Force, or a senior Commission investigator, named in and executing a search warrant may search a person found in or on the premises whom the member of the Police Force or senior Commission investigator reasonably suspects of having a document or other thing mentioned in the warrant.

(3)   In this section:

senior Commission investigator means an officer of the Commission who is designated by the Commissioner as a senior investigator and who is issued by the Commissioner with means of identification as such a senior Commission investigator.”

63. In the present case, Mr Lockley applied for the warrant in his capacity as an officer of ICAC under s 40(4) of the ICAC Act. Section 3(1) relevantly defines “officer of the Commission” to include the Commissioner or an Assistant Commissioner and a “member of staff” of ICAC.

Decision last updated: 14 June 2019