Woodman v State of Victoria
[2023] VSCA 169
•24 July 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0063 |
| JOHN WOODMAN | Applicant |
| v | |
| STATE OF VICTORIA | First Respondent |
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Second Respondent |
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| JUDGES: | NIALL, MACAULAY JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 July 2023 |
| DATE OF JUDGMENT: | 24 July 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 169 |
| JUDGMENT APPEALED FROM: | [2023] VSC 285 (Moore J) |
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PRACTICE AND PROCEDURE – Procedural fairness – Hearing of Independent Broad-based Anti-corruption Commission (‘IBAC’) conducted in public – Whether conducting public hearing denied applicant procedural fairness – Well open for judge to find IBAC informed applicant statutory preconditions for public hearing satisfied – IBAC not required to expressly state statutory preconditions satisfied – No breach of procedural fairness.
PRACTICE AND PROCEDURE – Anshun estoppel – Whether applicant acted unreasonably in failing to raise issue of validity of public examination – Relevant facts known to applicant at time of earlier proceeding concerned with substantially the same subject matter and directed to the same relief – Present ground of attack plainly apt to be determined in earlier proceeding – Failure to bring proceeding at that time very likely unreasonable.
PRACTICE AND PROCEDURE – Delay – Whether judge overstated period of delay – No explanation for applicant’s failure to raise issue with public examination prior to or at the time of examination – Judge correct in treating delay as significant – Not accepted that IBAC not prejudiced by delay – Leave to appeal refused.
Independent Broad-based Anti-corruption Commission Act, s 117.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, considered.
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| Counsel | |||
| Applicant: | Mr PG Nash KC | ||
| First Respondent: | Mr LT Brown with Ms M Narayan | ||
| Second Respondent | Ms FI Gordon KC with Mr J Maxwell | ||
| Solicitors | |||
| Applicant: | Access Law | ||
| First Respondent: | Victorian Government Solicitor | ||
| Second Respondent: | Independent Broad-based Anti-corruption Commission | ||
NIALL JA
MACAULAY JA
J FORREST AJA:
On 18 November 2019, pursuant to a witness summons issued by the Independent Broad-based Anti-corruption Commission (‘IBAC’) under the hand of the Commissioner of IBAC, John Charles Woodman (‘the applicant’) attended and was examined in a public hearing conducted by the Commissioner. The public examination of the applicant proceeded over six days.
The applicant was represented by counsel and solicitors at the examination. He and his lawyers were, prior to the examination, given notice both of the nature of the examination and the relevant provision (s 117) of the Independent Broad-based Anti-Corruption Commission Act 2011 (‘the Act’) under which it was to be conducted.
The examination, including the evidence given by the applicant, was widely reported in the media at the time. No objection was taken by the applicant or his lawyers either prior to or at to the hearing as to the examination being conducted in public in accordance with s 117.
The examination was undertaken as part of an IBAC investigation called ‘Operation Sandon’. IBAC’s ‘Operation Sandon’ is an investigation commenced in August 2018 about whether councillors of the City of Casey (‘the Council’) have received improper benefits or donations in exchange for favourable Council decisions, and the conduct of Mr Woodman and his business associates in relation to planning matters at the Victorian Government level. The City of Casey is in outer south-east Melbourne and includes the suburbs of Berwick, Cranbourne, and Narre Warren. On 23 December 2021 and 10 January 2022, that is well after the public examination (indeed two years later), the applicant was provided with a copy of a draft special report prepared by IBAC and invited to comment on those parts that related to him.
The draft report provoked a proceeding by way of judicial review which was commenced by the applicant in the Trial Division in March 2022. In that proceeding, the applicant sought to prevent publication of the report to Parliament on the ground of a denial of procedural fairness (‘the 2022 proceeding’). The applicant had a measure of success in the 2022 proceeding, in that a judge of the Trial Division held that, before publishing the report, IBAC should disclose to the applicant a limited number of additional documents and invite a response from him.[1] IBAC did so.
[1][2022] VSC 684 (Ginnane J).
Pursuant to that process, on 20 January 2023 the applicant provided IBAC with a response to the draft report and the further documents which had been provided to him by IBAC.
It appears that IBAC has now finalised its report and proposes to transmit the final report to Parliament on 27 July 2023.
The 2023 proceeding
On 18 May 2023, the applicant commenced a second proceeding in the Trial Division (‘the 2023 proceeding’). The 2023 proceeding was commenced by writ, indorsed with a statement of claim. The central contention in the 2023 proceeding is that the public examination of the applicant was unlawful in that it was not authorised by s 117 of the Act.
In summary, at the relevant time, s 117 provided that an examination by IBAC is not open to the public unless IBAC considered on reasonable grounds that the cumulative conditions in ss 117(1)(a)–(c) were satisfied. The conditions were:
(a) there are exceptional circumstances; and
(b) it is in the public interest to hold a public examination; and
(c) a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing.
Section 117(4) relevantly provided that, for the purposes of determining whether or not it is in the public interests to hold a public hearing, IBAC was permitted to take into account ‘the benefit of exposing to the public, and making it aware of, corrupt conduct….’.
Section 117(3A) of the Act now provides that if IBAC holds an examination in public it may, on application by a person attending in accordance with a witness summons, on application by a person authorised by IBAC to appear at the public examination, or on its own motion, hold any part of it in private. That section was introduced after the public examination of the applicant. We note however, that before the introduction of s 117(3A) the power of IBAC in s 116(b) to regulate the procedure of an examination would have provided the power to have part of the examination in private. Further, we do not doubt that during the course of a public hearing IBAC would, in an appropriate case, have had the power to revisit its decision to hold a public examination. Such a power is now made explicit in s 117(3A).
Section 120 of the Act provides that, for the purposes of an investigation, IBAC may issue a witness summons to a person to attend IBAC to give evidence at an examination at a specified time and place on a specified date. Relevantly a summons may be issued where IBAC is satisfied that it is reasonable to do so, having regard to the evidentiary or intelligence value of the information, document or thing sought to be obtained from the person. Section 121(3) of the Act requires that a summons must be in the prescribed form, and that when it is served it must be accompanied by a statement containing the matters stipulated in s 121(4). Those matters are:
(a)that failure to comply with the witness summons may be an offence and penalties may apply;
(b) whether it is intended that the examination is to be held in public or in private;
(c) that if the person summoned is under the age of 16 years at the date of issue of the witness summons, the person need not comply with the witness summons, subject to the requirements of section 123;
(d) that the person is entitled to seek legal advice in relation to the witness summons and the examination generally;
(e) that the person has a right to legal representation at an examination;
(f)that, if applicable, the person has a right to have an interpreter present at the examination;
(g) that, if applicable, the person is required to have a parent, a guardian or an independent person present at the examination;
(h) that a person may claim a privilege but—
(i) a person is not excused from answering a question or giving information or from producing a document or other thing on the ground that the answer, information, document or other thing may tend to incriminate the person or make the person liable to a penalty;
(ii) that if the person is a public officer, the Crown is not entitled to assert any privilege;
(i) if a person gives any answer, information, document or other thing that may tend to incriminate the person, an immunity as to the use of that evidence may apply;
(j) that, with limited exceptions in relation to a person who is a member of Victoria Police personnel, statutory secrecy provisions may apply which prevent the person from answering a question or giving information or producing documents or other things;
(k) that the person has a right to complain to the Victorian Inspectorate;
(l) any other prescribed matter.
It is difficult to discern from the statement of claim the precise legal basis on which it is alleged that the decision to conduct a public examination of the applicant, or to continue with it, was not authorised by s 117 of the Act. It appears to be alleged that:
(a)IBAC was obliged, but failed, to inform the applicant of his rights under s 117(3A) of the Act to apply to have his examination held in private;
(b)IBAC knew, or ought to have known, that the public examination could not be held without causing unreasonable damage to the applicant’s reputation, safety and wellbeing, which it is said was ‘almost certain’ to follow a public examination of the applicant;
(c)IBAC had acted negligently in breach of its common law duties; and
(d)IBAC conducted the public examination without giving the applicant prior notice of its intention to do so and in breach of procedural fairness.
As already noted, s 117(3A) was introduced after the examination was conducted and is not relevant to the decision or conduct of IBAC in respect of the public examination of the applicant.
In his prayer for relief, the applicant seeks declarations that IBAC breached s 117 of the Act in holding the public examination of the applicant and denied him procedural fairness. He seeks a permanent injunction preventing IBAC from publishing its report. He also seeks damages, presumably on his action in negligence.
Both in his statement of claim, and in a summons issued on 18 May 2023, the applicant sought an interlocutory injunction restraining IBAC from publishing its final report until the hearing and determination of the proceeding. In his summons the applicant also sought by way of a further interlocutory order that IBAC provide documents relating to its decision to hold a public hearing.
The application for an injunction
The application for an interlocutory injunction came before a judge in the Trial Division, who refused it, primarily on the basis that the applicant had failed to show an arguable case that would support the injunction that had been sought. The judge also identified a further ‘formidable obstacle’ to the injunction,[2] which arose because the validity of the public examination could have been raised in the 2022 proceeding and the applicant’s failure to include it in his first proceeding gave rise to an estoppel of the kind considered by the High Court in Port of Melbourne Authority v Anshun Pty Ltd.[3]
[2]Woodman v Victoria [2023] VSC 285, [24] (‘Reasons’).
[3](1981) 147 CLR 589; [1981] HCA 45 (‘Anshun’).
In dealing with the merits of the case, the judge approached the applicant’s case on the basis that it had two essential limbs. First, the judge addressed the applicant’s case in negligence. In his statement of claim, the applicant pleaded, in a peremptory way, that in deciding to conduct a public hearing IBAC was negligent. The judge concluded that the applicant had not established a prima facie case in negligence. He noted that no arguments were made in support of the supposed duty of care and that such a duty would appear to be inconsistent with the Act.
The judge then turned to the public law grounds, dealing first with the applicant’s contention that in deciding to hold a public hearing the applicant was denied procedural fairness. The judge referred to the following facts, which he observed were uncontroversial:
(a)On 17 October 2019, IBAC issued Mr Woodman with a witness summons to attend an examination on 18 November 2019. At the same time, Mr Woodman was also provided with a document entitled ‘Preliminary Information and Directions for Public Examinations in Operation Sandon November 2019’ which, amongst other things, stated that:
(i)IBAC had been conducting an investigation designated as Operation Sandon into certain matters involving alleged serious corrupt conduct;
(ii)the Commission was ‘satisfied for the purpose of this investigation of the relevant matters prescribed by section 117 of [the Act] which relate to it conducting public examinations’;
(iii)the public examinations would be conducted by the IBAC Commissioner and would commence on 18 November 2019 and continue until no later than a date to be determined in December 2019; and
(iv)subject to consideration of any submissions, IBAC’s standard directions for public examinations would apply and which were made available by way of hyperlink.
(b)On 8 November, IBAC wrote to Mr Woodman’s counsel and set out certain proposed general directions to apply with respect to the questioning of witnesses in the course of public examinations. Submissions in respect of those directions were invited.
(c) On the same day, counsel for Mr Woodman replied, stating that there was ‘no objection to the proposed standard directions’.
(d) As I have noted, Mr Woodman was publicly examined by IBAC over six days in November 2019. During that examination, he was represented by counsel together with instructing solicitors. His counsel were also permitted to remain in the hearing room throughout the subsequent public examinations of other witnesses.
(e) At the conclusion of Mr Woodman’s examination on 26 November 2019, the IBAC Commissioner offered to make available to him the transcript of his examination and the exhibits which had been tendered during the examination.
(f) On 27 November 2019, at the commencement of the examination of the next witness after Mr Woodman, subject to certain undertakings, Mr Woodman’s counsel was granted access to the transcript of the examinations of other witnesses and the exhibits tendered during those examinations.
(g) From 27 November 2019 until the conclusion of the public examinations, subject to certain undertakings, IBAC provided Mr Woodman’s solicitors with access to the transcripts of the examinations and the exhibits tendered during those examinations.
(h) During the public examinations, no application was made on behalf of Mr Woodman to cross-examine any witness.[4]
[4]Reasons, [17]. In the main these facts emanated from the contents of an unchallenged affidavit of Amelia Jane Macknay, the Director of Legal Operations of IBAC.
Based on those facts, the judge concluded that IBAC had expressly informed the applicant that it considered the statutory criteria were satisfied and that the applicant was at liberty to make any submissions about the directions which would apply to the conduct of those examinations. Accordingly, the judge held that the applicant had failed to show a prima facie case that he had been denied procedural fairness.[5]
[5]Ibid [18].
The judge next considered the applicant’s argument that it was not open to IBAC to be satisfied, as required by s 117(1)(c), that a public hearing would not cause unreasonable damage to a person’s reputation, safety or wellbeing. Again the judge concluded that the applicant had failed to raise a prima facie case of error. The judge observed that the criteria in s 117(1)(c) were to be determined by IBAC on the basis of reasonable grounds and that the criteria required a subjective assessment on an evaluative question. The subjective and evaluative nature of the decision made it ‘inherently difficult’ to establish that IBAC could not reasonably have formed the state of mind required by the section.[6] The judge held that demonstrating that a public examination would damage the applicant’s reputation, safety or wellbeing, did not properly engage with the criteria which requires an assessment by IBAC of whether any such damage would be unreasonable. He concluded that there was no indication in the evidence that IBAC misdirected itself in making an assessment under s 117(1) of the Act.[7]
[6]Ibid [23].
[7]Ibid.
In addressing Anshun, the judge considered that there were compelling reasons why it was unreasonable for Mr Woodman not to challenge IBAC’s decision to examine him in public in the 2022 proceeding. He noted there was no legal or practical obstacle to raising the validity of the public examination in the 2022 proceeding, which the judge considered was clearly in the scope of the 2022 proceeding. The judge said that bringing in the present claims would not have materially affected the length or complexity of the 2022 proceeding.[8]
[8]Ibid [25].
Having found that the applicant had failed to establish a prima facie case the judge said it was unnecessary to consider the balance of convenience. The judge did, however, say that he would have refused the injunction on the basis of delay, even if the applicant had established an arguable case. The judge observed that the decision to hold a public hearing was made in 2019, and the applicant had stood by for three and a half years and allowed IBAC’s Operation Sandon investigation to proceed without raising any complaints about his public examination and had proffered no explanation for the delay.[9]
[9]Ibid [30].
The injunction was accordingly refused.
Proposed grounds of appeal
There are six proposed grounds of appeal which are in the following terms:
1. The learned judge erred in finding that the IBAC expressly informed Mr Woodman that it considered the statutory preconditions for him to be publicly examined were satisfied, and in (implicitly) relying on that finding.[10]
[10]Ibid [18].
2.The learned judge erred in holding that there was no tenable claim that the public examination was conducted in breach of s 117(1).[11]
[11]Ibid [23].
3.In holding that Anshun estoppel applied, the learned judge erred in that he failed to appreciate that the applicant did not act unreasonably in failing to raise before Ginnane J the issue of the validity of his public examination.[12]
[12]Ibid [24]–[25].
4.The learned judge erred in implicitly holding that the plaintiff was not acting reasonably in seeking to determine the content of the Report before challenging the validity of the proceeding, thus erroneously increasing the relevant delay from 7 months to three and a half years.[13]
[13]Ibid [24]–[25], [30].
Particulars
(a)In the judicial review proceeding before Ginnane J the applicant:
(i)sought the intervention of the Supreme Court to exercise its supervisory function over a Tribunal;
(ii)sought relief by way of provision of documents in fulfilment of the requirements of natural justice;
(iii)was confined to the public law remedies;
(iv)was unable to seek damages; and
(v)had a time limit of 60 days from the date of the IBAC’s decision to seek to impugn it.[14]
[14]Supreme Court (General Civil Procedure) Rules 2015, r 56.02 (‘Rules’).
(b)In the present proceeding (brought by way of writ and summons) the applicant:
(i)seeks equitable relief and damages;
(ii)is not confined to the 60 days limit to commence legal proceedings; and
(iii)is obliged to minimise his losses. The applicant’s application for an order restraining the publication of the IBAC report was and is consistent with that obligation.
(c)In the judicial review proceeding, the Supreme Court was called upon to assert its authority to require public authorities to perform their legal obligations according to law. On the other hand, in the writ and summons proceeding, the Court is called upon to adjudicate upon private rights.
(d)The learned judge should have given, but failed to give, consideration to the differences between the judicial review proceeding and the Writ proceeding.
5.The learned judge erred in holding that there was no indication in the evidence that the IBAC misdirected itself in making an assessment that a public hearing would not infringe s 117(1), and from this reached the erroneous conclusion that there was no merit in the claim against the IBAC.[15]
[15]Reasons, [30].
Particulars
(a)there was clear evidence that the public hearing caused considerable damage to Mr Woodman’s reputation;
(b)that damage was unreasonable;
(c)there was no evidence as to what, if any, consideration IBAC gave to the possibility or probability of such damage.
(d)It may readily be inferred the IBAC must have had some, probably significant knowledge of the evidence that was to be led, the questions to be asked and the answers likely to be given during the examinations in order to consider whether or not to hold the examinations publicly.
(e)It is obvious from:
(i)the remarks of the Commissioner and of Counsel Assisting, on the first day of the public examinations,
(ii)the questions Counsel Assisting asked of Mr Woodman, and
(iii)the answers Mr Woodman gave to the questions;
that conducting the public examinations would cause damage to Mr Woodman’s reputation.
(f)Mr Woodman’s examination in public caused damage to Mr Woodman’s reputation from 18 November 2019. That reputational damage continues.
(g)Whether the damage caused to Mr Woodman’s reputation was unreasonable is a question of mixed fact and law.
(h)Had the IBAC not conducted public examinations, the damage to Mr Woodman’s reputation would not have occurred
6.The learned judge erred in refusing to exercise his discretion to grant the interlocutory injunctive relief, where:
(a)there was clear evidence of likely additional damage to Mr Woodman if such relief were refused, and
(b)there was no evidence of damage to the respondents if it were granted.[16]
[16]Emphasis in original.
Principles on application for leave to appeal
It is only necessary to refer to two principles which are well understood and were not in issue.
First, as the decision of the judge involved the exercise of a discretion, a House v The King[17] error must be established, as explained by this Court in Tymbook Pty Ltd v Victoria[18] and more recently in AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd.[19]
[17](1936) 55 CLR 499; [1936] HCA 40 (‘House’).
[18](2006) 15 VR 65, [4] (Maxwell P and Charles JA); [2006] VSCA 89.
[19][2020] VSCA 236.
Second, this Court must exercise particular caution in reviewing the decision of the primary judge to make or decline to make an interlocutory order. Before the Court will intervene there must be error in principle, and the decision appealed from must work a substantial injustice to one of the parties.[20] The question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.
[20]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ); [1981] HCA 39; Warburton Environment Inc v VicForests [2021] VSCA 194, [112] (Niall, Emerton and Kennedy JJA); Niemann v Electronic Industries Ltd [1978] VR 431, 442 (Murphy J); Drummond v Canberra Institute of Technology [2020] FCAFC 131, [5]–[6] (Flick, Katzmann and Charlesworth JJ).
Grounds of appeal
Ground 1: procedural fairness
This ground appears to relate to the applicant’s contention that in conducting the public hearing the applicant was denied procedural fairness. The specific error attributed to the judge is one of fact; that it was an error for the judge to find that IBAC had informed the applicant that it was satisfied the statutory preconditions in s 117 for the issue of the summons were satisfied.
As mentioned, the evidence before the judge included an affidavit of Amelia Jane Macknay, the Director of Legal Operations at IBAC who deposed that on 17 October 2019 a witness summons was served on the applicant together with a statement that complied with s 121(3) of the Act and a document entitled ‘Preliminary Information and Directions for Public Examinations in Operation Sandon November 2019’. That document contained the statement, ‘The Commission is satisfied for the purpose of this investigation of the relevant matters prescribed by section 117 of the [Act] which relate to it conducting public examinations’.
It follows that the finding of fact, made on the interlocutory basis, was well open to the judge.
In any event, it is not arguable that the Act required IBAC to expressly state that the statutory criteria in s 117 were satisfied. The Act addresses the content of the summons and the information that must be supplied with it and it requires a statement of the kind contended for.
Further, the failure to expressly state that it was so satisfied did not entail any want of procedural fairness. It did not prevent or impede the applicant from understanding his rights or his ability to challenge the lawfulness of the summons or the proposed form of hearing, particularly given that he was represented by two counsel and at least three solicitors who had corresponded with IBAC as to the form of the public hearing prior to its commencement (8, 11 and 12 November 2019).
The IBAC preliminary information document set out the scope and purpose of the public examination of Mr Woodman, and included the following:
1.The transparency and integrity of planning and property development decision making within Victoria, including but not limited to, the provision of donations and in kind assistance to candidates at State and local government elections that may give rise to actual or perceived corruption;
2. Whether public officers involved in planning and property development decision making have been improperly influenced through donations, gifts, pro bono services or other hospitality;
3. The circumstances surrounding any actual or potential financial benefits obtained by any public officer, their families or their associates, resulting from, or otherwise in connection with, planning and property development decision making within Victoria;
4. Whether the use of professional lobbyists or planning consultants to lobby State and local government has resulted in undue influence over planning and property development decision making within Victoria.
Not only were the applicant and his lawyers given the documents setting out the examination process and the issues to be traversed in his public examination, they were specifically requested to notify IBAC of any submissions they wished to make as to that process. Of note is the response, contained in an email from lead counsel representing the applicant to that request:
We have no objection to the proposed standard directions. We have one query, concerning the first proposed direction. We assume that once Mr Woodman has given his evidence, he will be permitted to remain in the hearing room so as to provide us with instructions concerning the evidence given by other examinees. Please confirm that that is also your understanding.
Although, as we mentioned earlier, it was open to the applicant, no application was made either prior to or during the public examination for it to be conducted privately.
Ground 1 is without merit.
Grounds 2 and 5: application of s 117(1)
By these grounds, the applicant contends that the judge erred in his conclusion that there was no indication in the evidence that IBAC misdirected itself or made an error of law in making an assessment under s 117(1) of the Act in relation to the issue of the summons and the conduct of the public hearing.
The applicant contends that because damage to his reputation, safety or wellbeing were inevitable and obvious, the statutory criteria in s 117(1)(c) could not lawfully be satisfied. The applicant points to the opening address by Counsel assisting and the nature of the questions asked during the examination to submit that it was plain that the applicant would be questioned in a way that suggested or raised the possibility that he was guilty of some wrongdoing.
The judge held that it was not enough for the applicant to show that his reputation would be damaged by a public examination or that this outcome was known or understood by IBAC. The mere existence of such harm does not preclude the issue of a summons. The issue to which s 117(1)(c) is directed is the existence of ‘unreasonable’ damage and the assessment of that question is reposed in IBAC and s 117(4) permitted IBAC to take into account the benefit if exposing corrupt conduct, including by means of a public examination. Subject to there being reasonable grounds the assessment is inherently an evaluative judgement. Moreover, given that the scope and nature of the examination had been explained to him, if there was at the time a perceived specific unreasonable harm to the applicant’s reputation, safety or wellbeing by reason of conducting a public examination, this undoubtedly could and would have been raised by the applicant or his lawyers prior to the hearing; or at least, during the hearing.
In effect, the applicant submits that once damage is foreseeable or likely, the question of whether the damage is unreasonable can only be determined at trial. We cannot accept that submission. In order to justify an injunction the applicant was required to show an arguable or prima facie case or at least some colour of right. It was not enough to merely point to one aspect of the legal test, that is the existence of damage, and then say the matter was one for trial.
There was no error, let alone a House error, in the judge’s conclusion that there was no evidentiary basis on which to conclude that IBAC had not directed itself to the statutory question. Nor can it be said that his conclusion as to whether s 117(1)(c) had been satisfied was not open to him. On the state of the evidence as it existed his conclusion was, with respect, plainly correct.
Ground 3: Anshun estoppel
In addition to an absence of any merit in the applicant’s grounds for seeking an injunction, the judge considered that Anshun estoppel would likely stand in the way of relief because the validity of the public examination could have been raised in the 2022 proceeding. Although the judge did not finally determine the question, he noted that there were compelling reasons why it was unreasonable for the applicant not to challenge IBAC’s decision to examine him in public in the 2022 proceeding.
Anshun estoppel will preclude the assertion of a claim or of an issue of law or fact if the claim or issue was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it.[21]
[21]Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212, 229 [27] (French CJ, Kiefel, Keane and Nettle JJ); [2016] HCA 44; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 517–8 [22] (French CJ, Bell, Gageler and Keane JJ); [2015] HCA 28 (‘Tomlinson’).
The judge’s conclusion on this point was correct for the following reasons:
(a)both the 2022 and 2023 proceedings are concerned with substantially the same subject matter: the lawfulness of the investigation as it applied to the applicant;
(b)the two proceedings are directed to the same relief: preventing IBAC from publishing a report in the Operation Sandon investigation;
(c)the facts relevant to the 2023 proceeding were known to the applicant at the time of the 2022 proceeding;
(d)at least insofar as the claim for an injunction was concerned, both the 2022 and 2023 proceedings involved judicial review of the exercise of power. The powers in question, namely the power to conduct a public hearing and the power to investigate and report, are intertwined. The fact that the 2023 proceeding alleges negligence does not assist the applicant. The negligence claim was not the basis of and provided no foundation for the injunction; and
(e)the fact that the State of Victoria was a party to the 2022 proceeding is irrelevant. No interlocutory relief is sought against the State.
In the context of the 2023 proceeding, to establish an Anshun estoppel it must be shown that it was unreasonable, having regard to the circumstances, for the applicant to have refrained from asserting that right (that is, the claim concerning the public examination) in the 2022 proceeding.[22] In substance, in the 2022 proceeding the applicant challenged the form of the draft report emanating from his public examination held in 2019 when, as it now appears, he claims that the IBAC was not lawfully authorised to conduct that public examination at all. Whilst there may be circumstances which justify a party refraining, reasonably, from litigating an issue in an earlier proceeding, none are apparent here. The 2022 proceeding complained about the product or outcome of the public examination on the basis that the draft report or the associated process were unlawful. The present ground of attack, which is focused on the anterior step of holding the public hearing, was plainly apt to be determined in the 2022 proceeding and the failure to bring the proceeding at that time was very likely unreasonable.
[22]Clayton v Bant (2020) 272 CLR 1, 12 [29] (Kiefel CJ, Bell and Gageler JJ); [2020] HCA 44.
There was no error in the judge’s conclusion that Anshun estoppel presented a formidable obstacle to the 2023 proceeding. Read fairly, the judge was not persuaded that, independently of Anshun considerations, the applicant had raised a prima facie case. We agree with him. The availability of Anshun provided a further, very powerful reason why the proceedings, insofar as they seek judicial review, are very likely to fail.
Ground 4: delay
In his written case, the applicant contends that the judge’s approach to delay was wrong. He asserts that he first time he was on notice of adverse findings was when he received a draft report which he actively challenged in the 2022 proceeding. He also asserts that he commenced his proceeding within seven months of the decision of Ginnane J and that therefore the judge had overstated the relevant period of delay, which the judge said was three and a half years. The applicant says that there was no evidence of prejudice by the delay and it could not justify the refusal.
Given we have found no error in the reasons for refusing the injunction, it is strictly speaking not necessary to consider whether, as the judge found, delay provided an additional reason for refusing the injunction. However it may assist if we briefly address this issue.
To an extent there is an overlap with the Anshun ground because, as the judge correctly found, there was no reason why the attack on the public hearing could not have been joined to the 2022 proceeding. As the High Court explained in Tomlinson,[23] the doctrine of abuse of process is informed in part by similar considerations of finality and fairness as those which underpin the principle of Anshun estoppel:
Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, [the doctrine of abuse of process] overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.[24]
[23](2015) 256 CLR 507, 518 [24] (French CJ, Bell, Gageler and Keane JJ); [2015] HCA 28.
[24]Ibid 518–9 [24]–[26] (French CJ, Bell, Gageler and Keane JJ) (citations omitted).
The primary complaint of the applicant relates to the s 117 public examination process. He, and his lawyers, were aware of this procedure from 8 November 2019. This proceeding was issued on 18 May 2023, about a year after he issued the 2022 proceeding.
There is no explanation for the applicant’s failure to raise the public examination point now sought to be ventilated prior to or at the time of the examination in 2019, nor for a proceeding to be initiated at an earlier point of time if not as part of the 2022 proceeding. It is distinctly arguable that this delay falls squarely within the Tomlinson statements of principle: the administration of justice is brought into disrepute, and it is unduly oppressive on IBAC to continue with this proceeding.
Even if this delay was not a sufficient basis for a conclusion that the proceeding constituted an abuse of process, in our view the judge was correct in treating delay as being significant — certainly to the point of refusing the interlocutory relief sought by the applicant.
Although not brought by originating motion and not seeking writs, to the extent that the proceeding is one of judicial review, it is akin to a proceeding under O 56 of the Rules. Such a proceeding has a time limit of 60 days that can only be extended where there are special circumstances.[25] Whether or not that time limit applies, it informs the general principle that challenges to the exercise of public power should be brought in a timely way. That has not occurred. We do not accept that IBAC will not be prejudiced. It is important and in the public interest that its reports to Parliament, especially those that concern allegations of corruption in a public setting, should not be unduly delayed. There is a broad public interest in the timely finalisation of such matters.
[25]Rules, r 56.02.
Even if there were some arguable ground of error on the part of IBAC (and we have found none), it was well open to the judge to regard the delay as precluding interlocutory relief of the kind sought.
Ground 6: balance of convenience
It was open to the judge to refuse the injunction on the basis that no prima facie case had been established. In those circumstances, the balance of convenience could not in itself have justified an injunction. Ground 6 must fail.
Conclusion
None of the proposed grounds have any merit. The application for leave to appeal is refused. The application for an interlocutory injunction pending the determination of the application for leave to appeal falls away and must be dismissed.
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