Sherrington v Independent Commissioner Against Corruption (NT)
[2025] NTSC 27
•30 April 2025
CITATION:Sherrington v Independent Commissioner Against Corruption (NT) & Anor [2025] NTSC 27
PARTIES:SHERRINGTON, Jennifer
v
INDEPENDENT COMMISSIONER AGAINST CORRUPTION
and
NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory Jurisdiction
FILE NO:2021-03792-SC
DELIVERED: 30 April 2025
HEARING DATE: 24 December 2024
JUDGMENT OF: Burns J
CATCHWORDS:
ADMINISTRATIVE LAW – Defamation – Summary Judgment – Strike-Out Application – Embarrassing Pleadings – Independent Commissioner Against Corruption
CIVIL:
Crown Proceedings Act 1993 (NT), s 4 and s 8(2).
Independent Commissioner Against Corruption Act 2017 (NT) s 13, s 17, s 18(1), s 19, s 21(a), s 25(3)(a), s 34(2)(b), s 38, s 50(1), s 50(3), s 55(1), s 55(4)(a), s 55(4)(c), s 64, s 64(c), s 65, s 77, s 77(1), s 113, s 120, s 122(1), s 123, s 124, s 130, s 131, s 155, and s 155(4).
Independent Commissioner Against Corruption Amendment Act 2023 (NT), s13.
Interpretation Act 1978 (NT), s18A.
Federal Court of Australia Act 1976 (Cth), s 31A.
Northern Territory (Self-Government) Act 1978 (Cth), s 5.
Supreme Court Rules 1987 (NT), rule 9.06(a), rule 22.01(2), rule 22.03, rule 22.06, and rule 23.02.
Association for Employees with a Disability v Commonwealth of Australia [2021] FCAFC 36; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales(1982) 149 CLR 337; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171; Drumgold v Board of Enquiry (No 3) [2024] ACTSC 58; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Greiner v Independent Commission Against Corruption (NSW) (1992) 28 NSWLR 125; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81; Jenkins v Department of the Attorney-General and Justice [2017] NTCA 3; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15; McCasker v Omad (NT) Pty Ltd [2023] NTSC 1; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; Motor Accidents (Compensation) Commission v Toyota Motor Corporation Australia Ltd [2023] NTSC 65; Northern Territory of Australia v Bellamack Pty Ltd [2024] NTSC 66; Public Service Association of South Australia Incorporated v Commissioner for Public Employment [1999] SASC 4510; Probuild Constructions (Australia) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115; Sherrington v Independent Commissioner Against Corruption & Ors [2022] NTSC 67; Sherrington v Independent Commissioner Against Corruption (No 2) [2023] NTCA 11; Sherrington v Independent Commissioner Against Corruption [2024] HCASL 52; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Wotton v Queensland (2012) 285 ALR 1; and XX v Australian Crime Commission (2014) 321 ALR 575 referred to.
REPRESENTATION:
Counsel:
Plaintiff:C Ford OAM SC
Defendant:L Spargo-Peattie
Solicitors:
Plaintiff:Piper Grimster Jones Lawyers
Defendant:Hutton McCarthy
Judgment category classification: C
Judgment ID Number: Bur2503
Number of pages: 72
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSherrington v Independent Commissioner Against Corruption (NT) & Anor [2025] NTSC 27
No. 2021-03792-SC
BETWEEN:
JENNIFER SHERRINGTON
Plaintiff
AND:
INDEPENDENT COMMISSIONER AGAINST CORRUPTION
First Defendant
AND:
NORTHERN TERRITORY OF AUSTRALIA
Second Defendant
CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 30 April 2025)
Background
In separate proceedings commenced in this Court, Jennifer Sherrington and Ian McCulloch make claims for relief with regard to an investigation undertaken by the former Independent Commissioner Against Corruption (ICAC), a subsequent publication of a report of that investigation and, the publication of a public statement on the ICAC website. At all relevant times Ms Sherrington and Mr McCulloch were in a domestic relationship. The background to the current proceedings is to be found in my earlier decision in Sherrington v Independent Commissioner Against Corruption & Ors[1] at [4] to [15].
The initial proceedings were commenced by Ms Sherrington on 9 December 2021. At that time the named respondents were the office of Independent Commissioner Against Corruption (NT), Kenneth Fleming and the Northern Territory of Australia. Mr Kenneth Fleming KC was the holder of the office of ICAC at the time of the investigation and publications complained of. Ms Sherrington’s claims were pleaded as misfeasance in public office.
To advance such a claim against Mr Fleming, Ms Sherrington was required by s 155 of the Independent Commissioner Against Corruption Act 2017 (NT) (ICAC Act) to obtain the leave of this Court.[2] Such leave could only be granted where the Court is satisfied that “there are substantial reasons for believing” that Mr Fleming had acted in bad faith.
In Sherrington, I refused leave to Ms Sherrington to proceed against Mr Fleming personally in proceedings alleging misfeasance in public office. That decision was upheld on appeal in Sherrington v Independent Commissioner Against Corruption (No 2)[3]. An application for special leave to appeal to the High Court was refused.[4]
In addition to dismissing Ms Sherrington’s appeal, the Court of Appeal in Sherrington (No 2) ordered that the First Respondent, the office of ICAC, be removed as a party. The reason for that order is found in the judgment of Reeves J at [76]:
[76] Since the office of the ICAC is not established under the ICAC Act as a legal person capable of being sued, that office could not be sued in that capacity. It follows that the first defendant was not properly joined as a party in this proceeding. Accordingly an amendment should be made to reflect that fact. However, this deficit is not fatal to this appeal because Mr Fleming, as an individual, is capable of being sued whether personally, or as the holder of that office.
On 2 July 2024, a Writ and Statement of Claim were filed by Mr McCulloch. Sadly, Mr Fleming passed away before this date. An Amended Writ and Statement of Claim (McCulloch ASOC) were filed on 20 November 2024. The respondents named in the amended pleadings are the “Independent Commissioner Against Corruption” (first defendant) and the “Northern Territory of Australia” (second defendant).
On 17 October 2024 I made orders permitting Ms Sherrington to file an Amended Writ and Statement of Claim (Sherrington ASOC). These documents were filed on 20 November 2024. The defendants named in the amended pleadings are the “Independent Commissioner Against Corruption” (first defendant) and the “Northern Territory of Australia” (second defendant).
By summonses in each proceeding filed 27 November 2024 the defendants seek orders regarding the plaintiffs’ claims. In each proceeding, the defendants seek an order pursuant to Rule 9.06(a) of the Supreme Court Rules 1987 (NT) (SCR) removing the ICAC as a party. In addition, in each proceeding the defendants seek orders for summary judgment regarding nominated aspects of the plaintiffs’ claims. In the alternative, the defendants seek orders striking out those same nominated parts of the plaintiffs’ claims. The defendants also seek orders striking out other parts of the plaintiffs’ claims.
Ms Sherrington’s Amended Statement of Claim
Ms Sherrington’s pleaded case is based on the assertion that from a date unknown until about 2 July 2021 the ICAC conducted a joint investigation with the Department of Education (DOE) pursuant to s 38 of the ICAC Act into allegations against Ms Sherrington regarding her conduct while she was principal of Milingimbi School.
As a result of that joint investigation, the ICAC published the following publications (the publications):
1. An investigation report pursuant to section 50 of the ICAC Act on 2 July 2021 to the Chief Executive of the DOE; and
2. A public statement purportedly pursuant to section 55 of the ICAC Act on 5 July 2021 on the ICAC website maintained pursuant to section 130 of the ICAC Act.
In those publications, the ICAC made findings of corrupt conduct against Ms Sherrington.
Ms Sherrington pleads that the ICAC made multiple errors in the conduct of the joint investigation and in the publications.
By reference to specified events in the conduct of the joint investigation, and the errors allegedly made by the ICAC in the conduct of the joint investigation and in the publications, Ms Sherrington pleads that the making of the findings against her and the publications amounted to a failure by the ICAC to exercise his jurisdiction under the ICAC Act and/or were unlawful on public law grounds.
Additionally, Ms Sherrington pleads that the publications contained false defamatory imputations against her which have caused her loss and damage. That claim is pleaded under the heading “The Commissioner’s and Territory’s defamation”, but it is not clear from the Sherrington ASOC how the Territory is said to be liable for any defamatory imputations in the publications. There is no general pleading in the Sherrington ASOC that the Territory is either directly or vicariously liable for the acts of the ICAC. That portion of the Sherrington ASOC pleading a cause of action in defamation makes no reference to any act of publication on the part of the Territory. An application by Ms Sherrington to amend her ASOC to “substitute” the Territory for the ICAC as the defendant to her claim in defamation was filed after the hearing of the defendants’ applications. For the reasons that follow, I decline to address that application prior to determining the defendants’ applications.
Ms Sherrington also claims damages under the heading “Department of Education’s employment liability”. Under this heading, Ms Sherrington pleads claims in breach of contract and in estoppel.
Ms Sherrington claims the following relief:
1. an order quashing the ICAC’s investigation report of 2 July 2021;
2. a declaration that the initial and continued publication of ICAC’s investigation report of 2 July 2021 and his public statement of 5 July 2021 are unlawful or unauthorised by law;
3. an order that the defendants cease publication of the investigation report of 2 July 2021 and the public statement of 5 July 2021 including by removing the public statement from the ICAC website;
4. damages;
5. interest on damages;
6. costs on an indemnity or standard basis; and
7. such further or other order as the Court sees fit.
Mr McCulloch’s Amended Statement of Claim
Mr McCulloch pleads that he is the spouse of Ms Sherrington and was employed by the Milingimbi School Council from October 2015 until January 2020. Mr McCulloch pleads that from a date unknown to about 2 July 2021 the ICAC conducted a joint investigation with the DOE pursuant to s 38 of the ICAC Act into allegations against Ms Sherrington.
Mr McCulloch pleads that the ICAC, (referred to in the McCulloch ASOC as the first defendant), “is directly liable” for the actions and omissions of the DOE as pleaded in the McCulloch ASOC. This pleading is problematic as there are no acts or omissions on behalf of the DOE pleaded by Mr McCulloch. It is not clear how it is asserted that the ICAC is, in any event, directly liable for any acts or omissions of the DOE. The McCulloch ASOC also pleads that the second defendant, the Territory, is liable for the acts and omissions of the DOE pleaded in the ASOC. This is equally problematic for the same reason.
In the first iteration of his Writ and Statement of Claim, the first defendant was “the Northern Territory of Australia”. This changed when Mr McCulloch filed the McCulloch ASOC, in which the ICAC is nominated as the first defendant and the Territory is named as the second defendant. I speculate that the reference to the ICAC as being directly liable for the acts and omissions of the DOE is an error and it was intended to assert that the Territory is directly liable for the acts and omissions of the DOE.
Even if my speculation is correct, however, that does not address the apparent anomaly that no acts or omissions on behalf of the DOE are pleaded in the McCulloch ASOC.
Mr McCulloch pleads that as a result of that joint investigation, the ICAC published the following publications:
1. An investigation report pursuant to s 50 of the ICAC Act on 2 July 2021 to the Chief Executive of the DOE; and
2. A public statement purportedly pursuant to s 55 of the ICAC Act on 5 July 2021 on the ICAC website maintained pursuant to s 130 of the ICAC Act.
Mr McCulloch pleads that the ICAC made adverse findings against him in those publications.
Mr McCulloch pleads that the ICAC made multiple errors in the course of the joint investigation and in the publications. Mr McCulloch pleads that these errors, separately and together, amounted to a failure by the ICAC to exercise his jurisdiction under the ICAC Act and/or were unlawful on public law grounds.
Additionally, Mr McCulloch pleads that the publications contained false defamatory imputations against him which have caused him loss and damage. As is the case in the amended pleadings filed on behalf of Ms Sherrington, Mr McCulloch pleads that the ICAC is the publisher of the ICAC website and directly liable for publication of the imputations on that website. There is no general pleading in the McCulloch ASOC that the Territory is either directly or vicariously liable for the acts of the ICAC. While the heading of that part of the McCulloch ASOC pleading a claim in defamation is headed “The Commissioner’s and Territory’s defamation”, the actual pleaded claim makes no allegation of any act of publication on the part of the Territory or any claim of vicarious liability.
Mr McCulloch claims the following relief:
1. an order quashing the ICAC’s investigation report of 2 July 2021 insofar as it relates and refers to Mr McCulloch;
2. a declaration that the initial and continued publication of the ICAC’s investigation report of 2 July 2021 and his public statement of 5 July 2021 are unlawful or an authorised by law;
3. an order that the ICAC cease publication of the investigation report of 2 July 2021 and the public statement of 5 July 2021 including by removing the public statement from all websites within its control;
4. damages;
5. interest on damages;
6. costs on an indemnity or standard basis;
7. such further or other order as the Court sees fit.
The application by the defendants in each proceeding to remove the ICAC as a party.
Rule 9.06(a) of the SCR permits the Court to order that a person who is not a proper party to a proceeding ceases to be a party. The defendants submit that an entity without legal personality cannot be made a party to proceedings and is therefore not a proper party.
In XX v Australian Crime Commission[5], the applicant sought an order that the Board of the Australian Crime Commission (the Board) be joined as a party to proceedings which had been commenced in the Federal Court of Australia. The existing respondents objected on the grounds that the Board was not a juristic entity. Besanko J stated that, in private law, a defendant must be either a natural person or a legally recognised corporate entity. His Honour then went on to set out the relevant principles, at [15]-[16]:
It is convenient at this point to mention some of the relevant principles. First, the authorities establish that, in addition to a natural person and a corporation, there may be a body which has sufficient features of a corporation as to be recognised as having an artificial legal personality, despite not being incorporated. I refer to The Chaff and Hay Acquisition Committee and Others v J. A. Hemphill and Sons Proprietary Limited [1947] HCA 20; (1947) 74 CLR 375 at 396397 per Williams J. In The Church of Scientology Inc. and Another v Woodward and Others [1982] HCA 78; (1982) 154 CLR 25 at 56, Mason J (as his Honour then was) said:
However, the authorities suggest that it is possible to incorporate a statutory body by implication or to endow it with an artificial legal personality falling short of incorporation. This may be achieved by providing that it is to own property, employ its own staff, enter into transactions, sue and be sued in its collective or corporate name. In Chaff and Hay Acquisition Committee v. J. A. Hemphill and Sons Pty. Ltd. this Court held that the Committee, which did not have perpetual succession or a common seal, was not incorporated, but was nevertheless a legal entity distinct from the natural persons who composed it.(Citation omitted).
In Williams and Others v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 52, Fullagar J, in considering whether a body was a competent legal person, referred to the significance of the fact that the body in question had a personality which was distinct from that of all or any of its members, and which continued to subsist unchanged notwithstanding the changes which are bound to occur from time to time in its membership.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail,[6] Gagler J (as his Honour then was), said:
Professor Frederic Maitland wrote with accentuated simplicity in 1900:
Persons are either natural or artificial. The only natural persons are men. The only artificial persons are corporations. Corporations are either aggregate or sole.
That, Maitland added, "would be an orthodox beginning for a chapter on the English Law of Persons, and such it would have been at any time since the days of Sir Edward Coke".
Maitland elsewhere described a legal "person" as "a right-and-duty-bearing unit". Implicit in that description, often since repeated, is the traditional, essentially functional, understanding of legal "personality" as lying in the existence of legally conferred or legally recognised capacity to have or to form legal relations. Implicit also is the traditional understanding of legal personality as unitary: "[t]he notion of qualified legal capacity is intelligible, but the notion of qualified legal personality is not". To refer to an "artificial" legal person necessarily implies no more than the existence of a unit or entity, not being merely a natural person, in respect of which legal personality has been conferred or recognised.
(Citations omitted)
The defendants note that the plaintiffs’ current claims plead that the ICAC engaged in conduct that constituted a tort and seek damages for that conduct. They submit that the ICAC is an office created by s 17 of the ICAC Act and is constituted by the person who from time to time occupies the office pursuant to an appointment under s 113(1) of the ICAC Act. The defendants supported their submissions by pointing out that the office is not incorporated by the ICAC Act and is not given perpetual succession, and the office has no legal personality independent from the natural person who holds it and is therefore not capable of being sued in its own right.
In written submissions on behalf of Ms Sherrington (which I understand are also intended to apply to Mr McCulloch on this issue), it was submitted that the ICAC is the proper respondent with regard to the application for judicial review. Without the ICAC as a party there would, it was submitted, be no appropriate contradictor in the application for judicial review.
In the plaintiffs’ written submissions, it was accepted that neither plaintiff has a cause of action against the ICAC in defamation. It follows, therefore, that the only issue for determination is whether the ICAC is a proper party to each of the proceedings to the extent that the plaintiffs claim entitlement to relief pursuant to judicial review.
The first step in determining whether the ICAC is a proper party in the proceedings for judicial review is to consider the legal status of that office. This requires an examination of the provisions of the ICAC Act. In referring to the ICAC Act, I will refer to the provisions of that enactment as they were at the relevant times.
The ICAC is established by s 17 of the ICAC Act. This rather quaintly worded provision states “There is to be an Independent Commissioner Against Corruption”. The functions of the ICAC are set out in s 18(1):
(1) The ICAC has the following functions:
(a)to identify and investigate improper conduct;
(b)to protect persons who have assisted or may assist in detecting, preventing, investigating or otherwise responding to improper conduct;
(c)to prevent, detect and respond to improper conduct by:
(i)developing and delivering education and training; and
(ii)evaluating or reviewing practices, policies and procedures of public bodies and public officers; and
(iii)developing and delivering advice, reports, information and recommendations; and
(iv)referring matters to a referral entity for investigation or further investigation, disciplinary action or prosecution; and
(v)making public comment; and
(vi)gathering intelligence about improper conduct;
(d)to oversee and direct, as required, how referral entities deal with matters referred to them by the ICAC;
(e)to perform other functions conferred on the ICAC under this or another Act.
The ICAC is empowered to do all things necessary or convenient to be done for, or in relation to, the performance of those functions.[7]
The ICAC is not subject to direction by any person about the way in which he or she performs their functions under the ICAC Act.[8] In exercising any discretion available to the ICAC in performing a function under the ICAC Act, the discretion is to be exercised in the public interest, taking into account the matters set out in Schedule 1 of the ICAC Act. For present purposes it is unnecessary to consider the matters set out in that Schedule.
By virtue of s 113 of the ICAC Act, the Administrator may, on the recommendation of the Legislative Assembly, appoint a person to be the ICAC. Before performing any functions as the ICAC, the person appointed by the Administrator must take an oath that they will “faithfully, impartially and truly perform the functions of the ICAC according to law”.[9]
The ICAC’s appointment may only be suspended or terminated on limited grounds as provided by s 120 of the ICAC Act.
The ICAC’s staff consist of public sector employees employed for the ICAC, persons employed in an Agency (as to which see s 18A of the Interpretation Act 1978 (NT)) and made available to the ICAC, police officers made available to the ICAC, consultants engaged by the ICAC and “authorised officers” appointed under s 131 of the ICAC Act who do not fall within any of the aforementioned categories of persons.[10]
No provision is found in the ICAC Act for direct remuneration of staff by the ICAC or for terms or conditions of employment. Those matters undoubtedly are addressed for public sector employees, persons employed by an Agency, and police officers through their respective appointments as such. That would not, or would not necessarily, be the case with regard to consultants or “authorised officers”. It would appear to be the case, at least with regard to persons engaged as consultants, that the ICAC has the power to directly engage staff.
I will add that no regulations have been made under the ICAC Act.
In performing functions under the ICAC Act, a member of ICAC staff is subject only to the directions of the ICAC or another member of ICAC staff.[11]
Oversight of the performance of the ICAC is undertaken by an Inspector appointed by the Administrator.[12]
By virtue of s 130 of the ICAC Act, the ICAC must establish and maintain an appropriate website.
Some observations arise from a review of the provisions of the ICAC Act:
a) The ICAC Act does not explicitly create the office of the ICAC as some form of statutory corporation.
b) There are no indicia in the ICAC Act from which it may be implied that the legislature intended to create the office of the ICAC as a statutory corporation.
c) The ICAC Act does not create a Commission; it creates an office of ICAC constituted by the natural person who from time to time occupies the office pursuant to an appointment under the ICAC Act.
d) The provisions of s 123 of the ICAC Act, to the extent that they contemplate the engagement of consultants and, perhaps, authorised officers directly by the ICAC, indicate a legislative intention that the office of the ICAC have power to a limited extent to contract in its own name. It is unlikely, in my opinion, that the legislature intended that the natural person from time to time holding the office of ICAC, would be the appropriate contracting party.
e) The ICAC is required to establish its own website, indicating a legislative intention that the ICAC have a limited right to possess property. It is again unlikely that the legislature intended that the natural person from time to time holding the office of ICAC would be the possessor of that property.
f) The office of ICAC is a continuing one such that the office has a continuity separate to the identity of the person holding the office from time to time.
g) The ICAC is not subject to direction by any person about the way in which they perform their functions under the ICAC Act.
h) The staff of the ICAC are not subject to external direction.
The concession made by the plaintiffs that they cannot maintain an action in defamation against the ICAC relieves me of making a decision regarding the status of the ICAC as a proper respondent to such a claim. The removal of the ICAC as a party to the judicial review applications, however, would create multiple problems regarding those applications.
The errors alleged by the plaintiffs in their respective judicial review applications are said to be errors by the ICAC made in the purported exercise of its statutory powers. It is apparent from the ICAC Act that the office of the ICAC was intended to operate independent of and separate to other areas of the public sector. Both legally and as a matter of practicality it would be difficult for the Territory to properly assess and deal with those allegations without access to information held by the ICAC. Access to ICAC premises or protected ICAC information is restricted without the consent of the ICAC or an order of this Court.[13]
Additionally, the plaintiffs each seek orders that the ICAC cease publication of both the investigation report and the public statement on its website. The website is created and maintained by the ICAC, and the ICAC is not subject to the directions of the Territory as to how it performs its functions. If the ICAC were removed as a party and the Territory remained as the only defendant, questions would arise regarding the Territory’s legal capacity to direct the ICAC to remove the material from its website.
By reason of the above matters, I am satisfied that the ICAC is a proper party to the judicial review applications made by the plaintiffs.
Summary judgment principles
By operation of Rule 22.01 (2) of the SCR, this Court may grant summary judgment in relation to the whole or any part of a proceeding if satisfied that the plaintiff has no reasonable prospect of success. Rule 22 in its present form dates from 2018 and is in identical form to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA). Prior to the commencement of Rule 22.02 in its present form, it was accepted that the law applicable to an application for summary judgment in favour of a defendant was that stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW)[14] at 128-130:
The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129)
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129)
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)
In Spencer v The Commonwealth of Australia[15], French CJ and Gummow J said regarding section 31A of the FCA:
1. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
In a separate judgment, Hayne, Brennan, Kiefel and Bell JJ observed that s 31A of the FCA departed radically from earlier provisions which effectively required formation of a “certain and concluded determination” that the proceedings would fail before summary judgment could be entered. After referring to the decision of Barwick CJ in General Steel, their Honours noted that s 31A specifically provides that it is not necessary to demonstrate that the proceeding or part of the proceeding is “hopeless or bound to fail” before summary judgment may be entered. This, of course, mirrors the provisions of Rule 22.01(3) of the SCR.
Their Honours went on to say, at [58] to [60]:
[58] How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
The operation of the provisions of Order 22 of the SCR (which includes Rule 22.01) was considered by Acting Associate Justice Huntingford (as her Honour then was) in McCasker v Omad (NT) Pty Ltd[16] where her Honour said (omitting citations):
[16] Rules 22.03 to 22.06 of the SCR describe the procedural and evidentiary requirements on an application for summary judgment. These rules were not significantly amended in 2018. The operation of rules 22.03 – 22.06 was described by Kearney J in Australia & New Zealand Banking Group v David.
[17] The applicant bears the legal burden of establishing that the respondent has no reasonable prospect of successfully defending the claim. However, once the applicant has established a good cause of action, a persuasive or evidential burden falls upon the respondent to show cause. Rule 22.06(1)(b) requires that the respondent show cause by satisfying the Court that “in respect of that claim or part a question ought to be tried or that there ought for some other reason be a trial of that claim or part”.
[18] The principles applying to the procedural and evidential parts of Order 22 were described by Southwood J in Sportsbet Pty Ltd v Moriaitis as follows:
(1) Unless the plaintiff makes a proper affidavit the defendant is not required to answer the application for judgment.
(2) The court will give the plaintiff judgment unless the defendant shows cause against the application to the satisfaction of the Court. Cause may be shown by affidavit or otherwise.
(3)The Court will normally require an affidavit by or on behalf of a defendant before a defendant will be granted leave to defend. The defendant is required to use such diligence as is reasonable in the circumstances to put before the Court in a summary form all of the evidence relied on by the defendant in defence of the plaintiff’s claim.
(4)The affidavit material relied upon by a defendant may contain statements of fact based on information and belief provided the source of the evidence is identified and the grounds of belief are set out. A defendant may also obtain leave to defend if the defendant tenders evidence which, though not evidence of the facts, shows such evidence exists and will be available at the trial.
(5) A defendant should condescend into particulars. The evidence of the defendant must deal specifically with the facts relied upon by the plaintiff in support of its application. The affidavit of the defendant should state clearly and concisely what facts are relied on as supporting the defence.
(6) The defendant must point to some material, legal or factual, that provides an arguable response to the claim and not leave it to the judicial officer hearing the application to trawl through the material to find an answer to the plaintiff’s claim.
(7)The evidence of the defendant should show that there is a real case to be investigated either on the facts or in law.
(8) A defendant will be granted leave to defend if there are facts which, if true, would constitute a defence to the plaintiff’s claim. The Court is reluctant to try a case on affidavit where there are facts in dispute.
(9)An important issue is whether the defendant’s account of the facts has sufficient prima facie plausibility to merit further investigation.
[19] A decision about whether to grant or refuse summary judgment involves the exercise of a discretion.
The Sherrington ASOC
Defamation claim pleaded against the ICAC
As noted above, the defendants apply for summary judgment with regard to any claim by Ms Sherrington pleaded against the ICAC. The defendants submit, inter alia, that Ms Sherrington’s claims attribute liability to an unincorporated entity which cannot be sued in defamation.[17]
I have already determined that the ICAC as a statutory entity is an appropriate party to Ms Sherrington’s claim for judicial review. The claim for summary judgment is therefore to be considered only in relation to claims against the ICAC other than for judicial review.
The only such claim is pleaded in defamation. Multiple grounds were advanced by the defendants in support of their application, but it is unnecessary to list them or consider them further. As noted above, Ms Sherrington has accepted that she does not have a claim against the ICAC (either as a statutory entity or against Mr Fleming KC) in defamation. It is therefore clear that the respondents’ summary judgment application regarding Ms Sherrington’s claim against ICAC in defamation must succeed.
Defamation claim against the Territory
As I observed earlier (at [14]), despite the heading to that part of the Sherrington ASOC pleading a cause of action in defamation it is not clear how the Territory is said to be liable for any defamatory imputations in the publications. The relevant part of the Sherrington ASOC is as follows:
26. The publications contained the defamatory imputations that the plaintiff:
a.was dishonest;
b. had committed fraud;
c. had enriched herself and her family at the expense of the Commonwealth, the Territory, the Milingimbi School, students in the area of the school, and other schools and students in the Territory;
d.was not to be trusted;
e.was not fit to be a principal or in a position of authority;
f.suborned others to her will;
g.manipulated data for her own financial benefit; and
h.employed unqualified family members at public expense.
27. All imputations were and are false.
28. The publications were published as pleaded at [11].
29. On 5 July 2021, the first defendant published a media release in its Newsroom website and the ICAC website promoting the public statement.
30. The first defendant maintains and is the publisher of the ICAC website and the Newsroom website and is directly liable for publication of the imputations on those websites.
The first defendant for the purpose of these pleadings is, of course, the ICAC.
By a Summons dated 14 March 2025, Ms Sherrington seeks to amend the above pleadings by substituting “the second defendant” (the Territory) for “the first defendant” in paragraphs 29 and 30. It is said by Ms Sherrington that the reference to “the first defendant” in these pleadings is an error and an artefact from an earlier iteration of her pleadings. Accepting that to be the case, it is nevertheless inappropriate to consider Ms Sherrington’s Summons before determining the defendants’ applications.
In written submissions in support of the orders sought in the Summons, Ms Sherrington submits that any claim she seeks to now prosecute against the Territory is not out of time because the multiple publication rule applies in the Territory with the effect that each successive publication gives rise to a fresh cause of action in defamation. It follows that there can be no prejudice to Ms Sherrington in requiring her to apply to amend her ASOC to plead a claim in defamation against the Territory.
This course has the advantage of allowing those representing Ms Sherrington to consider how such a cause of action should be pleaded. The present pleadings are problematic beyond the error in naming the appropriate defendant in paragraphs 29 and 30. For example, paragraph 28 pleads that the publications were published as pleaded at paragraph 11, but paragraph 11 does not plead any alleged publication.
In addition, if paragraph 30 of the Sherrington ASOC were to be amended as suggested by Ms Sherrington, it would plead, inter alia, that the Territory “maintains and is the publisher of the ICAC website”, which would appear inconsistent with the provisions of s 130 of the ICAC Act which requires the ICAC “to establish and maintain” the ICAC website.
Employment liability claim/estoppel
Ms Sherrington also alleges certain employment liability on the part of the DOE. The claims regarding employment liability are found in the ASOC under the heading “DOE’s employment liability”. Under that heading Ms Sherrington pleads that she was employed by the DOE in various capacities from 1999 onwards. She pleads that she surrendered her permanent position as a senior teacher and accepted a position on contract as the principal of Gapuwiyak School in reliance on certain representations made to her by the then Director of School Performance within the DOE, in particular that she would be subject to regular performance reviews which would determine extensions of her contract and that she would be provided with support to improve her skills if necessary. That contract was subsequently renewed on two occasions.
In October 2015 Ms Sherrington took on the role as principal of Milingimbi School during the term of her second contract. She continued in that role on a third contract until January 2020 when she commenced alternative duties in Darwin. Ms Sherrington pleads that it was a term of this third contract that the DOE would review her performance at least once a year. She pleads that in breach of the representations made to her and the terms of the third contract, the DOE did not conduct a performance review of her in the period from 25 July 2017 to January 2020.
The ASOC then pleads that it was an implied term of her employment that the DOE would act in good faith towards her and cooperate with her in assisting her to fulfil her duties. Ms Sherrington claims that the DOE breached this term and by reason of the alleged breach she suffered loss and damage.
In addition, Ms Sherrington pleads estoppel. She pleads that the Territory is estopped from asserting that any of her conduct or the findings of the ICAC or the publications made by the ICAC justified non-renewal of her contract as principal of Milingimbi School because she had relied upon certain representations said to have been made by the then Director of School Performance within the DOE when she surrendered her permanent position in the DOE. Curiously, one of the circumstances said to give rise to an estoppel is the making of “the termination error”. It is not stated in the pleadings who is said to have made this error, nor is the “termination error” defined in the pleadings.
Further or in the alternative, Ms Sherrington pleads that the Territory is estopped from asserting that any of her conduct, or the findings of the ICAC or the publications by the ICAC justified non-renewal of her contract because the DOE at various times represented to her that her conduct the subject of the findings was acceptable. In addition, it is alleged that the DOE knew “each item of exculpatory information pleaded at [27.18] before, and, or shortly after each fact existed”. This latter pleading is problematic because there are no facts or information pleaded in paragraph 27 of the ASOC.
These pleadings must be considered in the context that in paragraphs 4 and 5 of her ASOC Ms Sherrington pleads that the Territory is liable for any acts or omissions of the DOE alleged in the ASOC.
The defendants submit that summary judgment should be entered on these claims on four bases. The first is that the claims are based on the DOE owing Ms Sherrington certain contractual duties. The respondents submit that the DOE is not incorporated and is not a rights-and-duties-bearing entity and is therefore not capable of having or breaching any contractual duty with Ms Sherrington.[18].
In Ms Sherrington’s written submissions, she submits that the status of the DOE as an agency of the Territory without its own legal personality does not prevent its officers from forming and breaching contracts in the name of the Territory nor from creating estoppels binding the Territory. She submits that references to the DOE in the ASOC “are in the way of particularising who on behalf of the Territory performed the actions pleaded”.
The difficulty for Ms Sherrington is that, as presently pleaded, the ASOC goes beyond referring to the DOE by way of identifying those servants or agents of the Territory who performed the actions of which Ms Sherrington now complains. The relevant portions of the ASOC assert that she contracted with the DOE, and that the DOE breached contractual obligations it owed to her. This position is not changed by the pleading of vicarious liability in paragraphs 4 and 5 of the ASOC.
The DOE has no legal personality, and it cannot contract with a third party. The DOE cannot owe contractual obligations to a third party. It cannot breach contractual obligations to a third party. The defendants’ summary judgment application with regard to her pleaded employment liability claim against the DOE must succeed.
It is strictly unnecessary for me to consider the other bases upon which the defendants submitted they were entitled to summary judgment regarding Ms Sherrington’s pleaded employment liability claim, but I will briefly touch upon them.
The second basis relied upon by the defendants concerned Ms Sherrington’s pleading that the DOE breached an implied duty of good faith which it owed her. The defendants submitted that the test for implying terms into a contract are well known.[19]. Recently, these principles were succinctly stated by Kiefel CJ and Gagler J in Realestate.com.au Pty Ltd v Hardingham (2022)[20] at [18] (omitting footnotes):
The conditions necessary to ground the implication of a term of well-known. Apart from being reasonable and equitable, capable of clear expression and non-contradictory of the express terms of the contract, to be implied a term must be necessary to give business efficacy to the contract (which will not be satisfied if the contract is effective without it), and it must be so obvious that “it goes without saying”.
The existence and content of an implied term is a question of law and “does not depend on the ascertainment of the actual intention of the parties to the contract”.[21] I accept the defendants’ submissions that the requirements for implying terms of the nature asserted by Ms Sherrington into her employment contract are not capable of satisfaction in this case. I would have granted summary judgment to the defendants on this aspect of Ms Sherrington’s pleaded case had it been necessary to consider it.
The third basis concerns the allegation in the ASOC that the DOE “did not conduct a performance review of the plaintiff in the period from 25 July 2017 to January 2020” as required in her contract of employment. The defendants submit that even if such a breach occurred, the ASOC pleads no damage causally related to the breach.
As submitted by the defendants, this pleading appears to be used to support a possible contention that any breach of Ms Sherrington’s professional duties was the fault of the Territory, and that the Territory is estopped from asserting otherwise. This is consistent with part of the case pleaded by Ms Sherrington in estoppel. In my opinion, however, the defendants are correct that as presently pleaded the alleged breach of Ms Sherrington’s employment contract by failing to conduct performance reviews simply goes nowhere.
Finally, the defendants submit that to the extent that liability is said to arise from estoppel, that is not an independent cause of action giving rise to damages. While I accept the correctness of this submission, it is unclear how Ms Sherrington proposes relying upon those matters pleaded under the heading of estoppel in the ASOC.
As submitted by the defendants, aspects of Ms Sherrington’s claim as pleaded in the ASOC are legally incoherent. The factual matters underpinning the claimed estoppel may be relevant to establishing an estoppel depending, for example, on what matters disputed by the defendants in defence of any claim properly pleaded by Ms Sherrington. It may, perhaps, be permissible for Ms Sherrington to pre-emptively plead an estoppel to the effect that the defendants are precluded from denying aspects of a properly pleaded case, but it must be made clear that this is not intended as a separate cause of action.
It may be that Ms Sherrington’s allegation that the DOE did not conduct a performance review as required by her employment contract was intended to be part of the factual matrix which she asserts gives rise to an estoppel. If that is so, it also needs to be made clear.
Administrative law claims
I will now turn to the defendants’ application for summary judgment regarding the administrative law claims pleaded by Ms Sherrington. In her ASOC, Ms Sherrington seeks an order in the nature of certiorari to quash the investigation report prepared by the ICAC.[22] The defendants submit that certiorari will not issue for that purpose as the sole function of certiorari is to remove the legal consequences or purported legal consequences of an exercise of power.[23]. As such, the defendants submit, certiorari will not issue where an exercise of power has no legal effect.
In Hot Holdings Pty Ltd v Creasy[24], a majority of the High Court (Brennan CJ, Gaudron and Gummow JJ) said regarding the scope of certiorari, at 158-159 (omitting footnotes):
It once was customary, at least in England, to begin any consideration of the scope of certiorari with reference to the dictum of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) (1) that certiorari lies against a decision which is of such a nature as "to determine questions affecting the rights of subjects". Professor Sir William Wade dubbed this passage in Atkin LJ's judgment "[c]anonical". However, it is important also to bear in mind that the scope of certiorari has developed from time to time to meet changing conditions.
The proposition that certiorari will lie only in respect of a decision which determines questions affecting rights has led to a number of cases, of which the present is one, where the contention has been that the decision in issue is merely advisory, provides a recommendation, or is made at a preliminary stage of a decision-making process.
Consideration of the requirement for certiorari that the impugned decision determines questions affecting rights, on occasion has been confused with a distinct body of principle. This concerns the existence of a requirement of procedural fairness. The conceptual distinction is neatly illustrated by the decision of this Court in Ainsworth v Criminal Justice Commission. In that case it was held that there had been a failure to observe the requirements of procedural fairness but, nevertheless, certiorari did not lie because no legal effect or consequence attached to the report in question.
In Ainsworth the Court reiterated the function of certiorari. In the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ it was said:
The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.
Brennan J spoke to similar effect as follows:
Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.
Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense; where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently "determines" or is connected with that decision.
The defendants submit that the ICAC report plainly does not fall within the first category of situations identified above in which certiorari will lie, because the report does not create or alter any legal right, duty or liability. The sole function of the ICAC report, they submit, is to record findings made by the ICAC.[25]. The report may have reputational consequences for Ms Sherrington, but that does not constitute a relevant legal effect sufficient to attract certiorari.[26]
The defendants further submit that the ICAC report does not fall within the second category identified above as the report is not a legal condition precedent to the making of some subsequent decision which would affect Ms Sherrington’s legal rights. Regarding this second category of situations in which certiorari will lie, the Full Court of the Federal Court of Australia (Mortimer and Abraham JJ, with whom Kerr J agreed) in Association for Employees with a Disability v Commonwealth of Australia[27] said, at [144] (footnotes omitted):
[144] The High Court has more recently endorsed the Hot Holdings proposition that where a statutory scheme creates a recommendation process as a precondition to the making of a decision under that statute, or an exercise of power under that statute, then the recommendation itself may properly be the subject of relief by way of a judicial review application: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 at [57]. In such circumstances, it is the statutory scheme which gives legal effect to the recommendation, and therefore the recommendation must itself be one made within jurisdiction: see Oakey at [59]. In Oakey at [65] the plurality applied the principles in this way:
No differently from the recommendation of the Land Court which the Minister must take into account in deciding to grant or reject an application for a mining lease under the MRA, the objections decision of the Land Court to which the administering authority must have regard in making the final decision whether to approve an application for an environmental authority can only be one which is the product of compliance with all of the express and implied conditions of the statutory process by which the recommendation constituting the objections decision is required to be produced. No differently from the statutory process for the making by the Land Court of a recommendation under the MRA, central to the conditions implied into the statutory process for the making by the Land Court of a recommendation under the EPA is that the Land Court observe procedural fairness in conducting a hearing and in making the recommendation.
Finally with regard to Ms Sherrington’s claim for certiorari, the defendants submit that it is well-established in other jurisdictions that certiorari will not lie to quash reports of this nature.[28]
In her written submissions, Ms Sherrington concedes that certiorari is not available because the publications do not have legal consequences.
It follows that there should be summary judgment for the defendants against Ms Sherrington on her claim for certiorari.
I now turn to Ms Sherrington’s claim for injunctive relief. In her ASOC, Ms Sherrington seeks the following:
c. An order that the defendants cease publication of the investigation report of 2 July 2021 and the Territory’s public statement of 5 July 2021 including by removing the public statement from the ICAC website.
The defendants submit that this is relief in the nature of a mandatory injunction as it would compel them to take positive steps to remove the public statement from the ICAC website. The defendants submit that this Court does not have jurisdiction to grant that relief as s 8(2) of the Crown Proceedings Act 1993 (NT) (Crown Proceedings Act) provides that “a mandatory injunction is not to be made against the Crown”. The “Crown” is defined in section 4 of that Act to include “a Minister, and instrumentality or agency of the Crown and a prescribed person”. This definition is inclusive and includes the Territory as the body politic established by s 5 of the Northern Territory (Self-Government) Act 1978 (Cth). It would also, the defendants submit, include the ICAC.
Further, regarding the ICAC, the defendants submit that s 64 of the ICAC Act applies such that the claimed injunctive relief cannot lie against the ICAC. That section provides:
An action does not lie against the ICAC:
(a) to restrain the ICAC from commencing, or continuing to conduct, or to compel the ICAC to commence, or continue to conduct, an investigation or public inquiry; or
(b) to restrain the ICAC from making, or to compel the ICAC to make, a referral; or
(c) to restrain the ICAC from doing anything under Division 7, or to compel the ICAC to do something under that Division.
The powers of the ICAC to make an investigation report and a public statement are found at ss 50(1) and 55(1) of the ICAC Act respectively. These provisions are within Division 7 so that s 64(c) applies, the respondents submit, to prohibit the grant of the injunctive relief sought against the ICAC.
In her written submissions, Ms Sherrington submits that it is a mischaracterisation to describe the injunctive relief sought as a mandatory injunction. Ms Sherrington submits that while couched in terms of directing the defendants to remove the publications from the ICAC website, it is in nature a prohibitory injunction. Ms Sherrington stated that, if necessary, the relief sought could be reworded to the effect that the defendants be restrained from publishing the material on their websites or elsewhere. It is noteworthy that Ms Sherrington does not dispute that the ICAC is “the Crown” for the purposes of s 8(2) of the Crown Proceedings Act.
In reply, the defendants identified two difficulties with the submissions made by Ms Sherrington. First, the proposition that the injunctive relief sought is not mandatory because it seeks to restrain the defendants from publishing the investigation report and public statement is not consistent with the terms of the injunction sought. The defendants note that Ms Sherrington seeks an order that the defendants cease publication of the investigation report and public statement including by removing the public statement from the ICAC website. The defendants submit that the object of the injunctive relief sought is to compel them to do something, effectively being to remove the public statement from the ICAC website and to take positive steps to ensure that the investigation report is not publicly available.
Secondly, the defendants submit that Ms Sherrington cannot avoid this problem by seeking to recast what is a mandatory injunction in prohibitory terms. The defendants submit that the character of the injunction is a matter of substance and not of form.[29] In any event, the proposition that Ms Sherrington may seek different relief in the future is irrelevant to determining whether the present pleading can stand.
In my opinion, the injunctive relief sought by Ms Sherrington is in substance mandatory and as such is not available against the defendants by reason of s 8(2) of the Crown Proceedings Act. In the circumstances, it is unnecessary to express an opinion regarding the application of s 64 of the ICAC Act. The appropriate course, in my view, is to strike out Ms Sherrington’s claim for injunctive relief.
I will now turn to the defendants’ application for summary judgment regarding the “Commissioner’s errors” pleaded in the Sherrington ASOC. The “Commissioner” is a reference to the ICAC. These alleged errors are relevant to Ms Sherrington’s claim for a declaration that the initial and continued publication of the investigation report and the public statement are unauthorised by law. The ASOC pleads a list of “Commissioner’s errors” consisting of:
a) JI decision error (an error in deciding to conduct a “joint examination” (sic, investigation) with the DOE).
b) JI management error (not managing properly the joint investigation with the DOE).
c) 5-month silence error (not giving Ms Sherrington any information on the joint investigation from January 2020 to June 2020).
d) Notice of examination error (not comprehensively stating the nature of the matters about which Ms Sherrington was to be questioned in the notice of examination, contrary to section 34 (2)(b) of the ICAC Act).
e) Information denial error (conducting the joint investigation in circumstances where Ms Sherrington had been denied access to information that would exculpate, excuse or assist her).
f) Non-withdrawal error (not directing the Chief Executive of the DOE pursuant to section 77 of the ICAC to withdraw a notice dated 17 January 2020 to Ms Sherrington prohibiting her from having access to the staff and documents of the Milingimbi School).
g) Adversarial error (conducting the joint investigation, in particular the examination, in an unnecessarily adversarial manner contrary to section 60 (3)(b) of the ICAC Act).
h) Conflict error (continuing the joint investigation in circumstances where there was a conflict between the DOE’s interests and its obligations in the joint investigation).
i) 11-month silence error (not giving Ms Sherrington any information on the joint investigation between June 2020 and the notice of adverse findings on 6 May 2021).
j) Evidence denial (the failure by ICAC to provide all relevant evidence to Ms Sherrington).
k) The extension refusal (the refusal by the ICAC to grant Ms Sherrington an extension of time to respond to the ICAC’s proposed adverse findings).
l) Non-consideration error (ICAC’s failure to properly consider Ms Sherrington’s response to the ICAC’s proposed adverse findings and the DOE’s informal response).
m) Informal response error (giving Ms Sherrington’s response to the DOE and receiving informal responses from the DOE).
n) Non-disclosure error (not disclosing the DOE informal responses to Ms Sherrington nor giving her an opportunity to comment on them).
o) Unfair representation error (not fairly representing Ms Sherrington’s response to the publications contrary to section 50 (2) of the ICAC Act).
p) Statement/report error (publishing the public statement purportedly pursuant to section 55 of the ICAC Act rather than an investigation report pursuant to section 50).
q) Undue haste error (rushing in the investigation and preparation of the publications unnecessarily due to the impending expiration of the ICAC’s appointment).
r) Non-investigation error (not properly investigating the matters raised by Ms Sherrington in her evidence and response).
Not all of these alleged errors are the subject of the defendants’ application for summary judgment.
The defendants submit with regard to the alleged JI decision error that the pleading is conclusory. They submit that there is no pleading as to what constitutes the alleged error or how any such error could constitute an error of law. The defendants point out that s 38 of the ICAC Act confers a broad discretion on the ICAC to conduct an investigation as a joint investigation with a “referral entity”. It is not disputed that the DOE was a “referral entity”.[30]
Ms Sherrington’s response to the defendants’ summary judgment applications regarding the alleged Commissioner’s errors is that the defendants’ complaints are essentially that the pleadings lack particulars. Alternatively, she submits that any defects in the pleadings can be rectified by repleading. Specifically, regarding the alleged JI investigation error, Ms Sherrington offered the following:
The failure was in selecting the DOE as a joint investigator rather than using the ICAC’s powers to obtain information from the DOE, where the plaintiff’s actions were said to be justified by the direction, encouragement or knowledge of the DOE. Investigating jointly with the DOE immediately created a real potential for bias and improperly extended the protection under s 155 in an undefined and unconfined way. A consequential question is the reach of s 155 when an agency is selected as a joint investigator – does the protection extended to every person in the agency or only to those actively investigating, or to a middle ground of those involved in the investigation or the matter complained of. A related issue is that the appointment of the agency that employs the investigated person, in this and other cases, undermines the independence of the ICAC and the investigation.
In reply, the defendants submit that in order to obtain administrative law relief, Ms Sherrington must show some jurisdictional or non-jurisdictional error of law which affects the investigation report or public statement. For that to occur, they say, she must identify some legal condition or precondition on the exercise of the power to make an investigation report or public statement, which conditions and preconditions must be identified in the ICAC Act. Regarding the alleged JI decision error, the defendants submit that Ms Sherrington’s particulars, set out in the previous paragraph, demonstrate that this alleged error is said to arise from two matters.
The first is the potential for bias because the DOE was Ms Sherrington’s employer and it is alleged that her conduct was justified by “the direction, encouragement or knowledge” of the DOE. The defendants submit that this is not tenable because the standard of procedural fairness required is determined by the statutory scheme.[31] Regarding a decision to conduct an investigation as a joint investigation with a “referral entity”, the ICAC has a broad discretion to select a joint investigation partner. The ICAC Act creates no justiciable standard by which that discretion is to be exercised. Ms Sherrington, the defendants submit, has not identified any such standard.
In addition, the defendants submit, the fact that Ms Sherrington asserted that her actions were encouraged or, at least, engaged in with the knowledge of the DOE would not have been known to the ICAC at the outset of the investigation when the decision was made by the ICAC to conduct the joint investigation. That fact could therefore not have led to any error by the ICAC in exercising the discretion.
The defendants further submit that an appropriate referral entity with which to conduct a joint investigation should be selected having regard to the “role or function” of any officer the subject of the investigation at the time of referral or when the conduct occurred. In the public service, this will be the person’s agency (in this case, the DOE) as it will be the entity that has disciplinary jurisdiction over the person and can give employment directions to the person.
Finally, regarding the first matter raised by the defendants, there is a submission that no attempt has been made by Ms Sherrington to plead how any actual or apprehended bias affected the ultimate report or the statement.
The second way in which it is said that the ‘’particulars’’ provided by Ms Sherrington are said to remain an error on the part of the ICAC regarding the alleged JI decision error is that the decision to conduct a joint investigation with the DOE allegedly “improperly extended the protection of s 155 in an undefined and unconfined way”. The defendants submit that the extent of protection (if any) conferred by s 155 of the ICAC Act is irrelevant to determining whether any conditions or preconditions to the making of a valid report or public statement were complied with.
In my opinion, Ms Sherrington’s claim regarding the alleged JI investigation error must fail. This is so whether only the ASOC pleading is considered or if the suggested particulars are also considered.
There can be no doubt that the ICAC has, and had at the relevant time, the power to decide to conduct an investigation jointly with a referral entity. There can be no doubt that the DOE is a “referral entity”. The terms of the ICAC Act do not provide any express restriction on the ICAC’s discretion to decide to conduct a joint investigation with a referral entity.
It must be recollected that the decision impugned by Ms Sherrington in the alleged JI investigation error is the decision of the ICAC to conduct a joint investigation with the DOE. There is nothing in the pleadings, the proposed particulars or the evidence that suggests that this decision was made in circumstances of actual or apprehended bias on the part of the ICAC. The highest point to which Ms Sherrington’s contention rises is that there was a risk of the perception of bias in the conduct of the subsequent investigation created by the decision of the ICAC.
The issue then becomes one of statutory interpretation: does the ICAC Act evidence a legislative intention that the power conferred on the ICAC to decide to conduct a joint investigation with a referral entity be restricted. In particular, restricted such as to prohibit a decision to conduct a joint investigation with any referral entity where such an entity may potentially have an interest in the subject matter of the inquiry sufficient to amount to, or which may potentially amount to, an apprehension of bias? While the discretion vested in the ICAC is broad, it is not unfettered.[32] The powers conferred by the ICAC Act must be “understood with regard to the subject matter, scope and purpose of the statute”.[33]
There is nothing in the text of the ICAC Act which would suggest that the power conferred on the ICAC by s 38 was intended to be subject to a restriction of the nature which the alleged JI investigation error necessarily implies. There is much to be said for the proposition that the power conferred by s 38 would be rendered unworkable if it were subject to such a restriction. The decision to conduct a joint investigation with a referral entity will frequently be beneficial to the investigation by reason of ready access to relevant documents or to persons within the referral entity with knowledge of relevant processes and procedures. It is not to the point that there may be provisions in the ICAC Act permitting access to that material by other means.
Where, as here, a person subject to an ICAC investigation is a public servant or the holder of a public office, the obvious entity to be part of the investigation is the referral entity (usually a government department) with management responsibility for the person. It is entirely foreseeable (to the point of virtual inevitability) that such a person under investigation by the ICAC will dispute that they have breached any contractual obligations, or any other requirements of their position, by reference to contracts, guidelines, practices or similar matters in which the agency will have an interest.
It is inherently improbable that the legislature intended s 38 to operate in such a way as to restrict the ICAC from conducting a joint investigation with the agency which has the best understanding of the issues surrounding the employment of the person under investigation simply because that agency’s conduct or procedures may be called into question in the course of the investigation. In the present case, the investigation is not an investigation of the agency, but of the named individual.
In Sherrington, I engaged in an examination of the ICAC Act and concluded that it gives the ICAC extensive powers to identify, investigate and report upon alleged misconduct by public officials and bodies.[34] I observed that in performing his or her functions under the ICAC Act, the ICAC is given broad discretion as to how he or she achieves the sole object of the ICAC Act, being “to address wrongdoing in, or connected with, public administration”.[35] I concluded that it would be inconsistent with the statutory framework to determine that the ICAC was obliged to perform its functions in a particular way or to a certain judicially determined standard. I adhere to what I said there.
The terms of the ICAC Act do not reveal an intention that a decision under s 38 to conduct a joint investigation is subject to a restriction of the nature advanced by Ms Sherrington. The restriction as advanced is inconsistent with the statutory framework creating the office of ICAC and under which it operates.
Turning to Ms Sherrington’s submission that the decision of the ICAC to conduct a joint investigation with the DOE improperly extended the protection under s 155 of the ICAC Act in an “undefined and unconfined” way, I accept the defendants’ submission that the extent of protection (if any) conferred by s 155 of the ICAC Act is irrelevant to determining whether any conditions or preconditions to the making of a valid report or public statement were complied with.
A decision by the ICAC to conduct a joint investigation with any referral entity will have the consequence that the protections conferred by s 155 will probably be extended to individuals who would not otherwise be subject to those protections. It is inherently unlikely that the legislature intended the exercise of the power conferred on the ICAC by s 38 be subject to some undefined, implied condition that the number of persons potentially subject to the protections provided by s 155 be minimised or in some other way limited.
Regarding the alleged JI management error, the defendants submit that the pleading is conclusory. They submit that there is no pleading as to what constitutes the alleged error or how any such error could constitute an error of law. They further submit that there is no justiciable obligation in the ICAC Act requiring the ICAC to manage a joint investigation in a particular way.
Ms Sherrington provided the following response by way of particulars of her claim regarding the alleged JI management error:
The failure was in continuing with the joint investigation with the DOE after it became apparent or should have become apparent that there was a real risk of bias and then (1) not ensuring that active investigators in the DOE were independent or uninfluenced by their superiors, (2) not defining the extent of the joint nature of the investigation, (3) not ensuring that the investigators interviewed potential witnesses in the DOE to verify the plaintiff’s assertions.
In their reply, the defendants stated that the pleaded allegation is liable to summary judgment because it collapses into the JI decision error by depending on some allegations of bias arising from the use of the DOE as a joint investigation partner which is misconceived for the reasons advanced by them regarding the JI decision error. Further, the respondents submitted that there is no evidence of the three alleged failures and no articulation of how those failures caused non-compliance with a condition or precondition in the ICAC Act to the making of a valid report or public statement. Finally, the respondents submitted that none of the facts articulated in the particulars of the JI management error are pleaded in the ASOC.
In my opinion, summary judgment in favour of the defendants should be entered with regard to this alleged error for the same reasons as set out regarding the alleged JI decision error.
The next alleged error on which the defendants seek summary judgment is the notice of examination error which is said to arise from the ICAC not stating “comprehensively” the nature of the matters about which Ms Sherrington was to be questioned as required by s 34(2)(b) of the ICAC Act.
The defendants submit that this pleading relies on a version of s 34(2)(b) which was not in force in the relevant period. They submit that the requirement to state those matters “comprehensively” in a notice was not introduced until 2023, after Ms Sherrington’s examination had concluded.[36] The defendants submit that at the time the notice of examination was issued to Ms Sherrington, all that was required was that the notice state “the nature of the matters about which the person is to be questioned”. The defendants submit that the notice of examination complied with this requirement.
Ms Sherrington did not address these submissions in her written submissions. Unlike the other alleged errors to which I have referred, she provided no particulars regarding this alleged error. I infer that Ms Sherrington does not challenge the accuracy of the history of s 34(2)(b) as set out in the defendant’s submissions. It inevitably follows that this aspect of Ms Sherrington’s claim is misconceived, being based upon a form of the provision which was not in force at the relevant time. Summary judgment should be entered for the defendants with regard to this aspect of Ms Sherrington’s claim.
The next alleged error on which the defendants seek summary judgment is the alleged non-withdrawal error. This error is said to arise from the ICAC’s failure to direct the Chief Executive Officer of the DOE (the CEO) pursuant to s 77 of the ICAC Act to withdraw an alleged direction given by the CEO to Ms Sherrington on 17 January 2020 regarding her interactions with staff and access to records at the Milingimbi School.
The first difficulty regarding this alleged error, the defendants submit, is that the CEO’s letter did not purport to direct Ms Sherrington not to have access to records held by the DOE. The second difficulty identified by the defendants is that the power in s 77(1) of the ICAC Act is one to direct a public body or public officer to “refrain” from taking certain action. The defendants submit that the section does not permit the ICAC to require a public body or public officer to positively do something. In addition, that power is only engaged where the relevant conduct would, in the ICAC’s view, obstruct the ICAC performing functions under the ICAC Act or prejudice a future investigation. It was submitted that the CEO’s letter could not have had either effect.
Ms Sherrington provided the following response by way of particulars of her claim regarding the alleged non-withdrawal error:
At or around the time of the letter of 17 January 2020, the plaintiff was orally informed by Kerry Hudson and Aderyn Chatterton of the DOE that she was being suspended and that she could not have access to school equipment and records, she was required to surrender her school laptop and was assigned a different email address. From that time she was unable to access emails from the period of roughly January to August 2019 that were critical to the investigation. She also did not have access to, among other things, management reports, financial planning documentation, historic attendance data, housing tenancy records, purchase logs, procurement details and asset management records. She did not have access to paper records for financial management, school strategic planning, lists of proposed purchases consulted with staff and school council. She had no access to SAMS, Map App or other electronic systems relevant including Schools Central Portal for Financial Records and Workforce Planning. Paper file copies of the Power of Three Case Management Profiles and Senior and Staff meeting notes, community meetings etc. She stated in the examination that these records would have assisted her in refuting the allegations.
In their reply, the defendants submit that Ms Sherrington has not, in the above particulars, engaged with the issue they have raised. In her particulars Ms Sherrington asserts that she did not have access to certain information and that access to that information would have been useful. The case pleaded by Ms Sherrington in the ASOC, however, regarding this error is that the report and statement published by the ICAC are somehow infected by an error of law because the ICAC did not direct the CEO of the DOE pursuant to s 77 of the ICAC Act to withdraw a “notice” given to Ms Sherrington on 17 January 2020 “prohibiting her from having access to the staff and documents of the Milingimbi School”.
The reference to a “notice” can, in the circumstances, only be a reference to the letter from the CEO to Ms Sherrington dated 17 January 2020. It is instructive to refer in full to this letter:
Re: Foreshadowed Section 35 Transfer
You are employed by the Department of Education on a fixed period contract as Principal Milingimbi School, Executive Contract Principal Level 2 (ECPL2) until 24 July 2021.
A number of matters have been brought to my attention that will require a highly confidential investigation to be undertaken at Milingimbi School.
To ensure the department provides the requisite duty of care to you, it is now considered appropriate that I advise you that you are not required to report for duty at Milingimbi School from the time you receive this correspondence, unless otherwise notified.
In considering the most appropriate and reasonable action in the circumstance, I am foreshadowing my intention to transfer you at level to perform other duties in the Agency under section 35 (1) of the Public Sector Employment and Management Act (PSEMA).
The alternative duties and location I am proposing are as a Project Officer with Education NT reporting to Ms Aderyn Chatterton, Executive Director School Improvement and Leadership, North, Mitchell Centre Darwin.
Before I make my decision on the foreshadowed transfer, I invite you to make a submission to me as to why I should not take the proposed actions. Your submission, if any, should be in writing and reached me no later than 10:00am Wednesday, 22 January 2020.
To enable you to access personal and professional support services you may require, and to allow you to properly prepare your submission, I reaffirmed my direction that you are not required to report for duty at Milingimbi School until such time that I have reviewed your submission and formed a decision on the foreshadowed transfer.
I attach to this letter a copy of Sections 35 of the PSEMA for your reference.
I have also attached a copy of the Departmental Employee Assistance Provider list, for your information and encourage you to access this service as required.
Please note that this process requires the department to maintain a high level of confidentiality insofar as is practicable, and it is therefore a requirement that you do not copy or disclose the contents of this correspondence to others. I also take the opportunity to remind you that you should not make contact with any other staff members of Milingimbi School with regard to this matter.
It is simply not possible to discern in this letter any prohibition on Ms Sherrington attending the Milingimbi School and having access to the staff and documents of the School. At its highest, the letter:
a) advises Ms Sherrington that she is not required to report for duty at the School; and
b) prohibits Ms Sherrington from contacting School staff “with regard to this matter”.
The “matters” referred to in the letter are:
a) The proposed transfer of Ms Sherrington and the nature and location of the proposed alternate duties.
b) A proposed highly confidential investigation was to be undertaken at the School.
c) Ms Sherrington was not required to report for duty at the School.
d) Ms Sherrington was not to copy or disclose the contents of the letter to others.
These were the matters on which Ms Sherrington was prohibited from contacting other staff members. In its terms, the letter does not prohibit Ms Sherrington from contacting staff of the school about particular events or transactions so long as these matters are not revealed or discussed.
The particulars provided by Ms Sherrington do not address the terms of the letter (referred to in the ASOC as a “notice”) at all. The particulars refer to alleged oral directions given to Ms Sherrington by officers of the DOE other than the CEO.
In addition to the non-withdrawal error, Ms Sherrington has pleaded that the ICAC committed a further error referred to as the information denial error. This latter error is said to arise from the ICAC conducting the inquiry in circumstances where Ms Sherrington was denied access to “information that would exculpate, excuse or assist her”. The defendants are not seeking summary judgment regarding the alleged information denial error, so Ms Sherrington will have the opportunity to make a case that the publication of the investigation report and the public statement were unlawful by reason of her being denied access to relevant material.
The alleged non-withdrawal error, as presently pleaded, cannot succeed because the evidence relied upon by Ms Sherrington is incapable of establishing the factual basis of the alleged error.
I am not convinced that the submission made by the defendants that the terms of s 77(1) of the ICAC Act would not permit the ICAC to require the DOE to refrain from denying Ms Sherrington access to School documents and staff, if that is what the DOE had done, is correct. Any such prohibition by the DOE would be a continuing one, so that the ICAC, in my view, could require the DOE at any point to refrain from denying Ms Sherrington access to relevant material or staff (so long as the other preconditions to the exercise of the power in s 77 were met).
Issues may, of course, arise regarding Ms Sherrington’s entitlement to be on the grounds of the School, or to utilise School equipment or access School documents, which are entirely separate from any direction said to have been given to Ms Sherrington by the DOE on or around 17 January 2020, but this is beyond the ambit of the present application.
In her written submissions Ms Sherrington withdrew the allegation of the adversarial error. The defendants are entitled to summary judgment on that matter.
The next matter on which the defendants seek summary judgment is the alleged statement/report error said to arise from the ICAC’s publication of a public statement under s 55 of the ICAC Act rather than an investigation report pursuant to s 50. The defendants submit that Ms Sherrington cannot succeed on this issue as the ICAC published both a public statement and an investigation report.
Ms Sherrington provided the following response by way of particulars of this aspect of her claim:
The public statement was not authorised by s 55 and is a different publication from the investigative report. The ICAC (1) placed the unauthorised public statement on the ICAC’s website, and (2) gained the investigation report to the Minister. The ICAC exceeded his powers under s 55 in taking step 1 which had different consequences from those in step 2.
I gather from these particulars that Ms Sherrington asserts that the making of the public statement was not authorised by s 55 of the ICAC Act, and that the ICAC should have simply published the investigation report. In brief, Ms Sherrington’s submission is that the ICAC had no power to issue the public statement.
In their reply, the defendants state that it has, to this point, been common ground that the content of the public statement and the report are essentially the same.
In light of the provisions of s 55 of the ICAC Act, this aspect of Ms Sherrington’s claim does not appear promising. The claim, however, raises an identified alleged error of law directly relevant to at least part of the publication complained of, and, in my opinion, it is appropriate to exercise my discretion to allow this aspect of her claim to proceed.
The Sherrington ASOC pleads, at paragraph 25, that the conduct of the joint investigation, and the making of the findings and the publications were “wrong and unlawful” as a result of the “Commissioner’s errors” set out at [95] above. The defendants also seek summary judgment regarding that part of paragraph 25 which relies on the “Commissioner’s errors” on which I have above entered summary judgment in their favour. It follows from the above that the orders sought by the defendants should be made.
Finally, the defendants seek summary judgment regarding paragraph 25 (g) of the Sherrington ASOC which alleges that the conduct of the joint investigation, the making of the findings and the publications were “wrong and unlawful” due to the failure of the ICAC to give adequate reasons for the findings, by the unfair representation error and the inadequate reasons error.
The defendants submit that:
a) the inadequate reasons error is undefined by the ASOC; and
b) the ICAC was under no obligation, wither under the ICAC Act or common law, to provide reasons for its findings.
Ms Sherrington’s response to these submissions was to “recast” her claim as follows:
The [ICAC] failed to include a fair representation of the plaintiff’s response in the Investigative Report as required by 50 (2) of the ICAC Act. This failure was an error of law and a denial of procedural fairness in that it (1) indicated a failure to have any or proper regard to the plaintiff’s response, (2) was the basis for the adverse findings, and (3) falsely represented to the public and the Minister that the plaintiff’s response was inadequate and that she had committed the breaches as found. The “inadequate reasons error” is renamed as the “inadequate consideration error” and defined as in this cell.
In their reply, the defendants submit that the proposed “recast” of paragraph 25 (g) involves a different argument to that which is currently pleaded. It appears, they submit, that Ms Sherrington is abandoning the claim which is currently pleaded in paragraph 25 (g).
It is no answer to the application made by the defendants for Ms Sherrington to foreshadow an amendment to her pleading. As this part of her claim currently stands, it is incoherent and has no prospect of success. It is not appropriate, however, to enter summary judgment on this part of Ms Sherrington’s claim because it refers to the alleged unfair representation error which is not the subject of the defendants’ application for summary judgment. The appropriate order is that paragraph 25 (g) be struck out.
By reason of my conclusions regarding Ms Sherrington’s currently pleaded claims in defamation and contract, paragraph 50 of the Sherrington ASOC and orders D and E sought by Ms Sherrington should be struck out.
I will now consider the defendants’ application to separately strike out other parts of the Sherrington ASOC.
Rule 23.02 of the SCR provides that the Court may strike out all or part of a statement of claim or pleading if it:
a) does not disclose a cause of action;
b) is scandalous, frivolous or vexatious;
c) may prejudice, embarrass or delay the fair trial of the proceeding; or
d) it is otherwise an abuse of process.
The reference to a statement of claim or pleading not disclosing a cause of action is a reference to a reasonable cause of action.[37]. As such, the test to be applied is similar to that which applies to an application for summary judgment.
In Toyota, Luppino AsJ, at [14], drew from a review of prior cases the following summary of principles regarding when a pleading will be liable to be struck out as embarrassing (omitting footnotes):
[14] In Aldebaran Constructing Pty Ltd v Tiwi Islands Regional Council (“Aldebaran”), I said that a pleading which does not comply with pleading rules is embarrassing for the purposes of rule 23.02(c) of the SCR. That term encompasses a wide variety of defects and is not limited only to non-compliance with the pleading rules in the SCR. The object of a pleading is to clearly inform the other party of the case that must be met and, in general terms, a pleading that does not satisfy that objective will be embarrassing. Examples of the types of pleadings which are embarrassing, insofar as they are relevant to the current case, are:-
·A pleading which does not allege all the material facts necessary to establish the cause of action which a party relies on;
·A pleading which pleads, instead of the material facts, the evidence by which those facts will be proved;
·A pleading which pleads conclusions;
·A pleading which pleads inconsistent allegations unless they are pleaded in the alternative;
·A pleading which is too vague and general;
·A pleading which is unintelligible or ambiguous;
·A pleading which is confusing;
·A pleading which lacks a coherent narrative.
(Citations Omitted)
The defendants seek an order that paragraphs 4 and 5 of the Sherrington ASOC be struck out. Those paragraphs plead:
4. The second defendant is the Crown in right of the Northern Territory, is liable to be sued pursuant to s 5 of the Crown Proceedings Act 1993 (NT) and is liable for the acts and omissions of the DOE alleged herein.
5. The second defendant is directly liable for the actions and omissions of the DOE, as pleaded herein.
The defendants reiterate their submission that the DOE is not a rights-and-duties-bearing entity and is unable to engage in conduct creating legal consequences. They further submit that these pleadings disclose no cause of action, are vague and embarrassing.
Ms Sherrington submitted that the status of the DOE as an agency of the Territory without its own legal personality does not prevent its officers from forming and breaching contracts in the name of the Territory nor from creating estoppels binding the Territory. Ms Sherrington submitted that the Territory operates through human beings and that reference in the Sherrington ASOC to the DOE is by way of particularising who on behalf of the Territory performed the actions pleaded.
In reply, the defendants submit that Ms Sherrington’s submission is untenable because the pleadings specifically plead that the Territory is liable for the acts and omissions of the DOE.
I accept the submission made by the defendants. Paragraphs 4 and 5 of the Sherrington ASOC will be struck out.
The defendants also seek orders striking out parts of the Sherrington ASOC which refer to, and apparently rely upon, named errors said to have been made by the ICAC but which are undefined. The parts of the Sherrington ASOC affected are:
· paragraph 25 (a) which refers to “the inadequate reasons error”;
· paragraph 25 (b) which refers to “the opinion error”, “the naming Ian error” and “the Ian notice errors”;
· paragraph 25 (d) which refers to “the opinion error”, “the naming Ian error” and “the Ian notice errors”;
· paragraph 25 (e) which refers to “the opinion error”, “the naming Ian error” and “the Ian notice errors”;
· paragraph 25 (f) which refers to “the prejudgment error” and “the opinion error”.
The defendants submit that by reason of the failure of the Sherrington ASOC to define these alleged errors or to otherwise plead material facts the pleadings are embarrassing.
Ms Sherrington submits that “the inadequate reasons error” is to be renamed “the inadequate consideration error” as foreshadowed at [146] above. Ms Sherrington concedes that the other undefined errors should be struck out.
Regarding Ms Sherrington’s submission, I reiterate what I said at [148] above. To the extent that paragraph 25 (a) of the Sherrington ASOC pleads “the inadequate reasons error” that pleading will also be struck out.
The defendants seek orders that parts of the Sherrington ASOC be struck out due to material facts not being pleaded. They submit that paragraph 25 (c) is embarrassing because it alleges a failure on behalf of the ICAC to “take into account the matters set out in Schedule 1 to the ICAC Act in performing his functions, in particular but without limitation the matters set out in clauses 2, 4 (f) and (k) and 5”.
Ms Sherrington responded by providing a Table of Schedule 1 matters and the pleaded errors to which each of the matters are said to relate. The Table is of little assistance because it refers to multiple alleged errors upon which I have determined summary judgment should be entered for the respondents or which are struck out. Ms Sherrington’s pleading in paragraph 25 (c) will be struck out.
The Sherrington ASOC paragraph 25 (h) pleads that the ICAC acted “so unreasonably” in the conduct of the investigation and the making and publication of his findings that it was not an investigation or findings justified or supported by law. The defendants submit that this pleading should be struck out as it does not specify the manner in which it is said that the ICAC acted unreasonably. They submit that the pleading is vague, conclusory and embarrassing.
Ms Sherrington responded as follows:
The conduct of the investigation was unreasonable in the Wednesbury sense in that no reasonable person in the [ICAC’s] position would have made the errors identified in the pleading or made the adverse findings against the plaintiff.
In their reply, the defendants submit that Ms Sherrington’s response merely reiterates the test for unreasonableness and does not identify how the findings or “pleaded errors” are said to be unreasonable. They further submit that the response does not enable the defendants to know the case they must meet and therefore should be struck out.
It is apparent that in the light of the present decision Ms Sherrington will be obliged to revisit her pleadings and, potentially, recast significant aspects of her case. In my opinion, this includes the pleading of Wednesbury unreasonableness.[38] Paragraph 25 (h) of the Sherrington ASOC will be struck out.
The McCulloch ASOC
Mr McCulloch pleads a case in defamation against the ICAC. It was conceded on behalf of Mr McCulloch that he cannot maintain a claim in defamation against the ICAC. The defendants are entitled to summary judgment on Mr McCulloch’s claim in defamation against the ICAC. As I observed earlier, the McCulloch ASOC does not plead a claim in defamation against the Territory.
For the reasons I gave regarding the Sherrington ASOC, while the ICAC is not a proper party to any claim in tort, it is a proper party for the administrative law claims.
I now turn to the administrative law claims pleaded by Mr McCulloch. It follows from my decision regarding the unavailability of certiorari in Ms Sherrington’s claim that this relief is also not available to Mr McCulloch. Similarly, and for the same reasons given regarding the Sherrington ASOC, the injunctive relief claimed by Mr McCulloch is not available. The claim by Mr McCulloch for injunctive relief should be struck out.
The McCulloch ASOC, similar to the Sherrington ASOC, pleads multiple errors on the part of the ICAC which, individually or collectively, amount to jurisdictional error or otherwise entitle Mr McCulloch to administrative law relief. The ICAC errors pleaded in the McCulloch ASOC are:
a) Naming plaintiff error (an error in naming or identifying Mr McCulloch in the publications in relation to matters that amounted to no more than misconduct or unsatisfactory conduct, contrary to s 55(4)(c) of the ICAC Act).
b) Failure to give notice errors (not giving Mr McCulloch noticed that he was being investigated, that the ICAC was proposing to make adverse findings and not providing Mr McCulloch with any information on the joint investigation).
c) Failure to give opportunity to respond error (not giving Mr McCulloch any opportunity to respond to the adverse findings, contrary to section 50 (2) of the ICAC Act).
d) Failure to give fair representation error (not giving a fair representation in the publications of responses from Ms Sherrington relating to the adverse findings against Mr McCulloch contrary to section 50 (2) of the ICAC Act).
e) JI management error (not managing properly or at all the joint investigation with the DOE).
f) Statement/report error (publishing the public statement purportedly pursuant to s 55 of the ICAC Act rather than as an investigation report pursuant to s 50).
g) Undue haste error (rushing the investigation and preparation of the publications unnecessarily so as to be completed before the then ICAC’s last day in office).
h) Opinion error (expressing an opinion in the adverse findings against Mr McCulloch that he had committed an offence or a breach of discipline contrary to s 55(4)(a) of the ICAC Act).
i) Non-investigation error (not properly or at all investigating the matters raised by Ms Sherrington in her evidence and response, particularly regarding exculpation the information including the nature of the work Mr McCulloch performed and the hours he worked).
The defendants seek summary judgment regarding the pleaded naming plaintiff error which is said to arise from contravention of the provisions of s 55(4)(c) of the ICAC Act. The defendants submit that this provision was not in force during the relevant time and was only introduced in 2023 in the Independent Commissioner Against Corruption Amendment Act 2023 (NT).
Mr McCulloch’s written submissions submit that the naming plaintiff error is an error regardless of whether the provisions of s 55(4)(c) apply because the ICAC had an obligation to afford procedural fairness to Mr McCulloch.
In reply, the defendants submit that Mr McCulloch’s submission cannot be reconciled with the pleadings which clearly state that the error is constituted by a failure to comply with the pleaded provisions of the ICAC Act.
The error pleaded by Mr McCulloch cannot succeed because it is based upon an allegation of failure by the ICAC to comply with provisions of the ICAC Act that were not in force at the relevant time. It is not to the point that a different error may be pleaded by Mr McCulloch. There will be summary judgment for the defendants on this part of Mr McCulloch’s claim.
The defendants seek summary judgment regarding the pleaded JI decision error. An identical alleged error was pleaded in the Sherrington ASOC. For the reasons that I gave in entering summary judgment for the defendants with regard to this alleged error pleaded in the Sherrington ASOC, I enter summary judgment for the defendants regarding this alleged error in the McCulloch ASOC.
The defendants also seek summary judgment regarding the pleaded JI management error. An identical alleged error was pleaded in the Sherrington ASOC. For the reasons that I gave in entering summary judgment for the defendants with regard to this alleged error pleaded in the Sherrington ASOC, I enter summary judgment for the defendants regarding this alleged error in the McCulloch ASOC.
The defendants seek summary judgment regarding the pleaded statement/report error. For the reasons that I gave regarding the pleading of an identical error in the Sherrington ASOC, I decline to enter summary judgment for the defendants or to strike out this pleading.
The defendants also seek summary judgment regarding the pleaded opinion error. This error is said to arise from a failure by the ICAC to comply with s 55(4)(a) of the ICAC Act. That provision was not in force at the relevant time and was not introduced until 2023.[39] As with the alleged naming plaintiff error, Mr McCulloch submitted that the opinion error is an error regardless of whether the provisions of s 55(4)(c) apply because the ICAC had an obligation to afford procedural fairness to Mr McCulloch. For the same reasons that I gave with regard to the alleged opinion error pleaded by Ms Sherrington, I do not accept Mr McCulloch’s submission. Summary judgment will be entered for the defendants on this aspect of Mr McCulloch’s claim.
The defendants also seek summary judgment with regard to the allegation at paragraph 10.7 of the McCulloch ASOC that the ICAC failed to give adequate reasons for his findings. The defendants submit that the ICAC was not under any obligation imposed by the ICAC Act or at common law to provide reasons.[40] I accept the submission made by the defendants and there will be summary judgment for the defendants on this aspect of Mr McCulloch’s claim.
On the basis of these determinations, there will also be summary judgment for the defendants with respect to Mr McCulloch’s claims for administrative law relief in the ASOC is so far as they depend upon the alleged errors upon which summary judgment has been entered or which have been struck out.
Finally, the defendants seek an order striking out paragraphs 4 and 5 in the McCulloch ASOC. These paragraphs, as noted above, alleged that the defendants are liable for the actions of the DOE alleged in the ASOC. The DOE is not a legal entity and is incapable of engaging in conduct creating legal consequences. In addition, there is no liability attributed to the actions of the DOE elsewhere in the McCulloch ASOC. Paragraphs 4 and 5 of the McCulloch ASOC will be struck out.
Conclusion
The parties are to prepare draft orders reflecting the above determinations.
The defendants are to file and serve any written submissions not exceeding four A4 pages as to the costs of these applications within 14 days of publication of these determinations.
The plaintiffs are to file and serve any submissions on costs also not exceeding four A4 pages with 14 days of receiving the defendants’ submissions.
These matters may be relisted on short notice.
-------------------------
[1] [2022] NTSC 67 (‘Sherrington’).
[2]Section 155(4) of the ICAC Act.
[3] [2023] NTCA 11 (‘Sherrington No 2’).
[4] Sherrington v Independent Commissioner Against Corruption [2024] HCASL 52.
[5] (2014) 321 ALR 575.
[6] (2015) 256 CLR 171.
[7] Section 19 of the ICAC Act.
[8] Section 21(a) of the ICAC Act.
[9]Supra, section 122(1).
[10]Ibid, section 123.
[11]Section 124 of the ICAC Act.
[12] See Division 4 of the ICAC Act generally.
[13] Section 65 of the ICAC Act.
[14](1964) 112 CLR 125 (‘General Steel’).
[15] (2010) 241 CLR 118.
[16] [2023] NTSC 1.
[17]London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 20 per Lord Buckmaster LC.
[18] Jenkins v Department of the Attorney-General and Justice [2017] NTCA 3 at [2] per Grant CJ; Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [35] per Grant CJ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Queensland Rail (2015) 256 CLR 171 at [52]-[54] per Gageler J.
[19]Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 345-347 per Mason J (‘Codelfa’).
[20]277 CLR 115.
[21] Codelfa at 345-347 per Mason J.
[22] ASOC Order A.
[23] Probuild Constructions (Australia) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [28] per (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
[24](1996) 185 CLR 149.
[25]Section 50(3) of the ICAC Act.
[26] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580-581 (‘Ainsworth’).
[27] [2021] FCAFC 36.
[28]Greiner v Independent Commission Against Corruption (NSW) (1992) 28 NSWLR 125 at 148E; Ainsworth at 580-581; 595-597; Drumgold v Board of Enquiry (No 3) [2024] ACTSC 58 at [599].
[29] Public Service Association of South Australia Incorporated v Commissioner for Public Employment [1999] SASC 4510.
[30]Section 25(3)(a) of the ICAC Act.
[31] McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, at [6]-[11].
[32]See Wotton v Queensland (2012) 285 ALR 1 at [10].
[33]Ibid, [9].
[34]Sherrington at [70].
[35]Section 3 of the ICAC Act.
[36] Section 13 of the Independent Commissioner Against Corruption Amendment Act 2023 (NT).
[37] Northern Territory of Australia v Bellamack Pty Ltd [2024] NTSC 66 at [55] per Huntingford J; Motor Accidents (Compensation) Commission v Toyota Motor Corporation Australia Ltd [2023] NTSC 65 at [93] per Luppino AsJ (‘Toyota’).
[38] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223.
[39]See [172] above.
[40] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, at [43].
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