Woodman v IBAC (No 2)
[2022] VSC 753
•7 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01011
| JOHN CHARLES WOODMAN | Plaintiff |
| v | |
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2022 |
DATE OF JUDGMENT: | 7 December 2022 |
CASE MAY BE CITED AS: | Woodman v IBAC (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 753* |
* This is a redacted version of the judgment that was published to the parties on a confidential basis.
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ADMINISTRATIVE LAW – IBAC investigation – Special report to Parliament – Reasonable opportunity to respond to adverse material – Appropriate declarations to give effect to primary judgment – Time for response – Costs – Independent Broad-based Anti-corruption Commission Act 2011 s 162.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Wood SC Mr C Viney | Duxton Hill |
| For the Defendant | Mr P Hanks KC Mr J Maxwell | Solicitor for the Independent Broad-based Anti-corruption Commission |
HIS HONOUR:
In the primary judgment,[1] I concluded that the defendant, the Independent Broad-based Anti-corruption Commission (‘IBAC’), had not complied with the requirements of s 162(3) of the Independent Broad-based Anti-corruption Commission Act 2011 (‘the Act’), and of procedural fairness, by not granting the plaintiff, Mr John Woodman, access to particular information or documents so that he might have a reasonable opportunity to respond to adverse material. This adverse material was the basis for comments or opinions that IBAC intended to include in a report under s 162, which it proposed to transmit to each House of Parliament. The information or documents that that I identified were:
[1]Woodman v IBAC [2022] VSC 684R (otherwise referred to as the ‘primary judgment’).
(a) footnotes 436 and 849 in volume 1 of the draft report and footnotes 318 and 348-349 in volume 2 of the draft report and the documents referred to therein;
(b) footnotes of private examinations, being footnotes 747 and 748 in volume 2, and the substance of the redacted transcript referred to in those footnotes that is relevant to Mr Woodman; and
(c) subject to further submissions and the Court being satisfied that [redacted] did not prevent such an order, footnotes 232 and 250 in volume 1 and their substance relevant to Mr Woodman.[2]
[2][Redacted].
I have now heard submissions about the orders to be made to give effect to my judgment.
Mr Woodman submitted that he should be granted an injunction restraining IBAC from causing a report substantially in the form of the draft report to be transmitted to Parliament under s 162(1) unless and until it provided him a reasonable opportunity to comment on the adverse material that related to comments and opinions that were adverse to him in the draft report. That material is the information or documents which I have described in paragraph one above. Alternatively, Mr Woodman sought a declaration about the adverse material described in paragraph one.
IBAC, on the other hand, argued that to give effect to my judgment, I should declare that pursuant to s 162(3) and the requirements of procedural fairness, before it transmits a report to Parliament under s 162(1) in the form of the draft report, Mr Woodman was first entitled to:
(a) the contents of footnotes 233, 250, 436 and 849 in volume 1 of the draft report and footnotes 318, 348 and 349 in volume 2 of the draft report;
(b) the documents referred to in footnotes 436 and 849 in volume 1 of the draft report and footnotes 318, 348 and 349 in volume 2 of the draft report; and
(c) the relevant substance of the documents referred to in footnotes 233 and 250 in volume 1 of the draft report and footnotes 747 and 748 in volume 2 of the draft report.
I consider that the Court should make a declaration rather than grant an injunction because IBAC is a public body created by statute and the Court expects that IBAC will give effect to its declaration in providing information to Mr Woodman.
Before deciding the terms of the declaration to be made, I will refer to an affidavit filed by IBAC made by [redacted], who is a ‘Manager – Investigations’ at IBAC who has oversight of the day-to-day conduct of ‘Operation Sandon’ and was involved in the preparation of the draft report. IBAC relies on this affidavit to support its submissions about the appropriate form of declaration.
[Redacted] states that IBAC is conducting its ‘natural justice acquittal process’ in respect of the draft report and that has resulted in changes to it independently of this proceeding. The draft report was intended to be a ‘draft’, which was to be amended as a result of that process. In the case of footnote 233 in volume 1, that process revealed that the reference to [redacted] in the excerpt contained in the draft report was factually incorrect as [redacted]. IBAC has changed the draft report by deleting the excerpt identified, which was:[3]
[3]Affidavit of [redacted] dated 28 November 2022, [11] (‘[Redacted] Affidavit’).
[Redacted].
Footnote 233 referred to in this excerpt says:[4]
[Redacted].
[4]Ibid [12].
[Redacted] affidavit states that a similar position exists with footnote 250, which was attached to an excerpt under the heading [redacted]. The excerpt states:[5]
[5]Ibid [16].
[Redacted].
Footnote 250 referred to in the excerpt states:[6]
[Redacted].
The part of footnote 250 that was not provided to Mr Woodman is [redacted].[7]
[6]Ibid [17].
[7]Ibid [18].
[Redacted] says with respect to footnote 250:[8]
[Redacted].
[8]Ibid [20]-[24].
[Redacted] then addresses footnotes 747 and 748 in volume 2, stating that IBAC has made changes to the draft report by deleting the excerpt to which those footnotes related. She says:[9]
[Redacted].
[9]Ibid [26]-[27].
Discussion of appropriate orders
IBAC provided the draft report to Mr Woodman in order to comply with the requirements of s 162(3) and of procedural fairness by providing him with a reasonable opportunity to respond to the adverse material. In the primary judgment, I concluded that the adverse material referred to in s 162(3) is not the comments or opinions contained in the draft report, but the material on which they are based.[10]
[10]Woodman v IBAC [2022] VSC 684, [68], [76].
It was to be expected that IBAC would make changes to the draft report as a result of the natural justice process before transmitting its special report to Parliament. But that expectation does not alter the fact that it provided Mr Woodman with the draft report to meet its obligation to provide him with a reasonable opportunity to respond.
IBAC’s proposed declaration may cease to operate if it makes any change to the draft report, because it is expressed as only operating in respect of a report to Parliament in the form of the draft report. Mr Woodman’s proposed declaration overcomes that limitation, to some extent, by operating when IBAC intends to transmit a special report to Parliament substantially in the form of the draft report.
IBAC submitted that it was only required to provide Mr Woodman with adverse material that was relevant to its findings contained in the draft report. It argued that if the ‘hook’ that demonstrated that relevance was the presence in the draft report of particular findings, then upon their removal the adverse material was no longer relevant and IBAC did not have to provide it to Mr Woodman.[11]
[11]Transcript of Proceedings, Woodman v IBAC (Supreme Court of Victoria, S ECI 2022 01011, Ginnane J, 28 November 2022) 41.
However, to apply that reasoning in all circumstances would thwart the rights given by s 162(3), and required by procedural fairness to be given to persons about whom the comments or opinions in the draft report are adverse. If they approach this Court seeking a declaration that they have not been provided with the required reasonable opportunity, the Court will not know whether IBAC intends to remove adverse material about which the persons are concerned before the special report is transmitted to Parliament. Therefore, in most circumstances, the Court must assess IBAC’s obligations to such persons by reference to the contents of the draft report that it has provided to them.
The Court’s approach may differ when it is clear that the draft report mistakenly relies on adverse material which does not exist and proposes to remove an erroneous footnote. [Redacted] affidavit suggests that that may well be the case with the [redacted] referred to in footnote 233, and perhaps footnote 250, in volume 1. It is possible that footnotes which are included in a draft report for IBAC’s internal purposes may contain errors. This appears to be the case here. If no [redacted] exist then obviously IBAC cannot be obliged to disclose their relevant substance to Mr Woodman.
However, different considerations apply to footnotes 747 and 748 in volume 2 where IBAC has deleted the excerpt from the draft report. That excerpt was contained in the section of the draft report titled [redacted]. But that text and excerpt and footnotes 747 and 748 are not isolated comments which when deleted will remove all references and conclusions about [redacted]. A number of other references to this same topic appear in the same section of the draft report. They include the following statements:[12]
[Redacted].
[12][Redacted].
The deleted excerpt and the footnotes attached to it were part of the discussion that remains in the draft report about [redacted]. Therefore, footnotes 747 and 748 of volume 2 and the substance of the transcripts to which they refer, which are relevant to Mr Woodman, are credible, relevant and significant information which the principles of procedural fairness require IBAC to give to him to provide him with a reasonable opportunity to respond. In my opinion, in this case s 162(3) also requires those footnotes and the relevant substance of those transcripts to be provided.
In my primary judgment I described a decision-maker’s obligations in respect of credible, relevant and significant information, whether or not it forms part of the final decision, as follows:[13]
The High Court described credible, relevant and significant information as information that the decision-maker cannot dismiss from further consideration before making the decision. The fact that a particular adverse document or information is ultimately not given decisive weight in the decision does not mean that the document or information was not credible, relevant or significant and therefore had to be disclosed to the person who would be adversely affected by the decision or action.
[13]Woodman v IBAC [2022] VSC 684, [52], citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 95-6 [16]-[18].
IBAC’s deletion of text from the draft report does not alter Mr Woodman’s entitlement under the principles of procedural fairness, or under s 162(3), to information contained in the footnotes attached to the deleted excerpt. After all, IBAC considered it relevant in the first place to include that excerpt and those footnotes in the draft report that it provided to Mr Woodman to enable him to respond.
It is true that I dealt with Mr Woodman’s claims about the 15 footnotes on a footnote by footnote basis, because the case was presented that way. But that approach does not alter the fact that IBAC, in order to comply with its procedural fairness obligations and its obligations under s 162(3), must provide Mr Woodman with the deleted text and the footnotes as they are credible, relevant and significant information concerning [redacted].
All this leads me to prefer Mr Woodman’s proposed declaration, save that in respect of footnotes 233 and 250 in volume 1, it will be expressed to apply to the records of any [redacted]. Having heard the parties’ submissions on the issue, I do not consider that [redacted] prevents IBAC providing [redacted] to Mr Woodman.
In formulating the declarations, I have departed slightly from the wording of the conclusions in my primary judgment, in an attempt to make the declarations giving effect to those conclusions clearer. I have also changed the reference in Mr Woodman’s proposed declaration from a report being transmitted to ‘either House of Parliament’ to a report being transmitted to ‘each House of Parliament’ in order to accord with the terms of s 162(1).
I will make a declaration in the following terms:
The defendant would fail to comply with s 162(3) of the Independent Broad-based Anti-corruption Commission Act 2011, and would fail to accord the plaintiff procedural fairness, if it were to cause a report substantially in the form of the draft report, reproduced in confidential exhibit LAK-1 to the affidavit of [Redacted] of 11 May 2022, to be transmitted to each House of Parliament under s 162(1) of the Act unless and until it provides him a reasonable opportunity to comment on the following material (Adverse Material) that relates to comments and opinions which are adverse to him in the Draft Report (the Adverse Comments and Opinions):
(a) Volume 1, footnote number 233 of the draft report and the substance of any [redacted] to which that footnote is attached relevant to the Plaintiff (if any); [see Woodman v IBAC [2022] VSC 684R (Primary Judgment) [136], [140], [230(c)]]
(b) Volume 1, footnote number 250 of the draft report and the substance of any [redacted] referred to in the footnote, relevant to the Plaintiff (if any); [see Primary Judgment [142], [147], [230(c)]]
(c) Volume 1, footnote 436 in the draft report and a copy of the [redacted] referred to therein; [see Primary Judgment [160], [167], [230(a)]]
(d) Volume 1, footnote number 849 in the draft report and the [redacted] referred to therein; [see Primary Judgment [186], [189], [230(a)]]
(e) Volume 2, footnote 318 in the draft report, and the documents evidencing the [redacted]; [See Primary Judgment [200], [210], [230(a)]]
(f) Volume 2, footnotes 348 and 349 in the draft report, and the documents evidencing the [redacted]; [see Primary Judgment [212], [215], [230(a)]]
(g) Volume 2, footnotes 747 and 748 in the draft report, and the substance of the [redacted] referred to therein relevant to the Plaintiff; and [see Primary Judgment [219], [225], [230(b)]]
whether or not the form of the draft report to be transmitted to Parliament includes or excludes the Adverse Comments and Opinions.
Mr Woodman’s time to respond
The next issue concerned the time that should be given to Mr Woodman to provide him with a reasonable opportunity to respond to the adverse material contained in the draft report, including the additional footnotes that I have concluded that he is entitled to receive. Mr Woodman suggested that he should have 20 business days from the time that the adverse material is provided to him. But he has had the draft report for some time and I consider that a period of 10 business days, as IBAC proposes, should be sufficient. I will reserve to Mr Woodman liberty to apply on this question, but I would require convincing material before I extended the response time.
Costs
The next question concerns costs. Mr Woodman sought his costs of the proceeding on a standard basis, while IBAC argued that he should only receive 50% of his costs because he had not been successful on all issues.
As the Court of Appeal explained in Chen v Chan,[14] the principles applicable to the costs discretion include that where on a multiplicity of issues, the parties have enjoyed mixed success on the issues in dispute, the Court may take a pragmatic approach to framing the order of costs, taking into consideration the success of the parties on an issues basis. If that course is followed, the Court must reach a decision ‘as a matter of impression and evaluation’ rather than with arithmetical precision.
[14][2009] VSCA 233, [10(3) and (5)].
Mr Woodman succeeded on grounds I, 2, 3, in respect of procedural fairness and on ground 3A contained in the amended originating motion, but IBAC succeeded on the issue of whether it was obliged to provide anything other than the 15 identified footnotes and the documents to which they referred. As I understood Mr Woodman’s case, at least initially, it was not confined to the footnotes, as he was seeking access to other documents that were credible, relevant and significant which it could be inferred IBAC had not provided to him.[15] I found that he had not established the existence of any such documents. I also take into account that Mr Woodman did not succeed on his all the footnotes, but in respect of 9 of the 15.
[15]Woodman v IBAC [2022] VSC 684R; Transcript of Proceedings, Woodman v IBAC (Supreme Court of Victoria, S ECI 2022 01011, Ginnane J, 7 June 2022) 251.
In all the circumstances I consider justice will be done by an order that IBAC pay Mr Woodman 75% of his costs of the proceeding on a standard basis.
Conclusion
I will therefore make declarations and orders in accordance with this judgment.
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