Woodman v State of Victoria
[2023] VSC 285
•1 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2023 02105
| JOHN WOODMAN | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| - and - | |
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Second Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2023 |
DATE OF JUDGMENT: | 1 June 2023 |
CASE MAY BE CITED AS: | Woodman v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2023] VSC 285 |
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PRACTICE AND PROCEDURE – Application for interlocutory injunction to restrain publication of report to Parliament – Where publication of report imminent - Where plaintiff alleged public examination leading to report caused unreasonable risk to his reputation, safety and wellbeing - Where plaintiff alleged IBAC’s decision to publicly examine him amounted to negligence – Where significant delay between public examination and application for injunction – Where plaintiff did not raise complaint in earlier proceeding concerning the same subject matter - Application dismissed – s 117(1) Independent Broad-based Anti-corruption Commission Act 2011 - Australian Broadcasting Corporation v O’Neil (2006) 227 CLR 57 – AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2020] VSC 564.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Nash KC | Access Law |
| For the First Defendant | Mr L Brown | Victorian Government Solicitor's Office |
| For the Second Defendant | Mr P Hanks KC with Mr J Maxwell | Independent Broad-Based Anti-Corruption Commission |
HIS HONOUR:
Introduction and background
The functions of the Independent Broad-based Anti-corruption Commission (IBAC), established by the Independent Broad-based Anti-corruption Commission Act 2011 (the Act),[1] include the identification, exposure and investigation of corrupt conduct.[2]
[1]Section 12.
[2]Section 15(2)(a). ‘Corrupt conduct’ has the meaning set out in s 4(1) of the Act.
In August 2018, IBAC commenced ‘Operation Sandon’, an investigation into suspected corrupt conduct in relation to local government planning decisions. Initially, the scope of Operation Sandon was to investigate alleged corrupt conduct by councillors of the City of Casey, who were suspected of having accepted undeclared payments, gifts or other benefits from property developers, in exchange for favourable Council outcomes in relation to planning and development matters.[3] The scope of the investigation was later expanded to include the conduct of the plaintiff, John Woodman, and his business associates, to determine whether they were attempting to corruptly influence, or conspire to influence, decisions of any public officer in the City of Casey.[4]
[3]As stated by Ginnane J in Woodman v IBAC [2022] VSC 684 (the First Proceeding) at [8].
[4]As stated by Ginnane J in the First Proceeding at [9].
IBAC has power under the Act to hold examinations for the purposes of an investigation.[5] On 17 October 2019, IBAC issued Mr Woodman with a witness summons to attend an examination and give evidence for the purposes of Operation Sandon. Mr Woodman was subsequently publicly examined by IBAC over six days in November 2019. IBAC also publicly examined other witnesses.
[5]Section 115(1).
Under the Act, IBAC may at any time prepare a report to Parliament on any matter relating to the performance of its duties and functions.[6] However, if it intends to include in any such report any comment or opinion which is adverse to any person, IBAC must first provide the person with a reasonable opportunity to respond to the adverse material.[7] IBAC prepared a draft report in respect of Operation Sandon and provided a copy of it to Mr Woodman on 23 December 2021 and 10 January 2022.
[6]Section 162(1).
[7]Section 162(3).
In March 2022, Mr Woodman commenced the First Proceeding in this Court against IBAC in which he sought to prevent publication of the report on Operation Sandon on the ground of denial of procedural fairness. In November 2022, Ginnane J upheld Mr Woodman’s claim in part and found that, before publishing the report, IBAC should disclose a limited number of additional documents to Mr Woodman for his response.[8]
[8]Woodman v IBAC [2022] VSC 684, [230].
On 20 January 2023, Mr Woodman provided IBAC with his response to the draft report in relation to Operation Sandon and the further documents which had been disclosed to him by IBAC.
On or about 14 May 2023, Mr Woodman became aware of media reports that the delivery of IBAC’s report to Parliament in relation to Operation Sandon was imminent. On 18 May 2023, he filed a summons seeking an ‘interim’ injunction restraining the publication of IBAC’s report entitled ‘Operation Sandon’ on the basis that its tabling in Parliament would result in him suffering ‘catastrophic and irreparable damage’. Mr Woodman also sought orders that IBAC provide him with certain information.[9]
[9]Mr Woodman sought orders that IBAC provide him with a copy of all materials that IBAC had access to in deciding whether or not there were reasonable grounds a public examination could be held without causing unreasonable damage to the plaintiff’s reputation, safety or wellbeing; a list of all the materials IBAC gave weight to when it decided to hold the examinations publicly; a list of all the materials IBAC decided to not give weight to when it decided to hold the examinations publicly; and IBAC’s statement of reasons for its decision to hold the examinations publicly.
By a writ filed on 18 May 2023, Mr Woodman seeks final declaratory relief that IBAC breached s 117(1)(c) of the Act[10] and denied him procedural fairness by holding his examination in public, a perpetual injunction restraining IBAC’s publication of its report in relation to Operation Sandon, and damages.
[10]See below at [11].
The hearing of Mr Woodman’s summons for interlocutory relief came before me in Practice Court on 23 May 2023. I ordered that the summons be dismissed. These are my reasons for so ordering.
Interlocutory injunction
The principles which guide the Court in considering an application for an interlocutory injunction were set out by the High Court in Australian Broadcasting Corporation v O’Neil.[11] I summarised those principles in AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd as follows:[12]
First, an applicant for an interlocutory injunction must demonstrate a prima facie case. This requirement is to be understood as being whether there is a serious question to be tried as to the plaintiff’s entitlement to relief, not whether it is more probable than not that the plaintiff will succeed at trial. The sense in which the test is understood is that the plaintiff must prove prima facie a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial. In context, a plaintiff must show that it has a putative legal or equitable right in respect of which final relief is sought which would justify the restraint sought. The requisite strength of the probability of ultimate success depends on the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought.
Secondly, the balance of convenience must also favour the granting of an injunction. The balance of convenience requires a consideration of matters favouring and militating against the grant of an injunction and may involve a consideration of the strength of the plaintiff’s case, assuming that a serious issue has been identified. In determining whether to grant an interlocutory injunction, the Court will consider whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense of granting an injunction to a party who fails to establish his right at the trial or in failing to grant an injunction to a party who succeeds at trial.
The third aspect, which is sometimes considered as part of the balance of convenience, is that the injury which the plaintiff is likely to suffer must be one for which damages will not provide an adequate remedy.
The above principles are interdependent. The strength of a party’s prima facie case may be relevant to the evaluation of the balance of convenience.[13] Similarly, the issue as to whether damages is an adequate remedy may be considered as part of the assessment of the balance of convenience.[14]
[11](2006) 227 CLR 57, [19] (Gleeson CJ and Brennan J) and [65] (Gummow and Hayne JJ). See also Bradto Pty Ltd v Victoria (2006) 15 VR 65, 67 [4].
[12][2020] VSC 564, upheld on appeal in AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2020] VSCA 236.
[13]Bradto Pty Ltd v Victoria (2006) 15 VR 65, [39]; Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238, [67].
[14]Samsung Electronics Company Ltd v Apple Inc (2011) FCR 238, [61]–[62].
Mr Woodman’s application for interlocutory relief focussed on the terms of s 117 of the Act which, at the time of his public examination in November 2019, provided as follows:
117 Examinations generally to be held in private
(1) Subject to subsection (2), an examination is not open to the public unless the IBAC considers on reasonable grounds—
(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.
(2) The IBAC must not hold an examination in public if the examination may disclose particulars likely to lead to the identification of a person who has made an assessable disclosure.
(3) However, the IBAC may hold an examination in public if the information that may be disclosed is information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
(4) For the purposes of subsection (1)(b), the factors the IBAC may take into account in determining whether or not it is in the public interest to hold a public examination include, but are not limited to—
(a) whether the corrupt conduct or the police personnel conduct being investigated is related to an individual and was an isolated incident or systemic in nature;
(b) the benefit of exposing to the public, and making it aware of, corrupt conduct or police personnel misconduct;
(c) in the case of police personnel conduct investigations, the seriousness of the matter being investigated.
(5) Not less than 7 days before a public examination is held, the IBAC must—
(a) inform the Victorian Inspectorate that the IBAC intends to hold the public examination; and
(b) provide a written report to the Victorian Inspectorate giving the reasons the IBAC decided to hold a public examination in accordance with subsection (1).
(6) A judicial officer is not required to attend a public examination but may consent to doing so.
In his statement of claim, Mr Woodman advanced two broad claims which may be summarised as follows:
(a)A public law challenge to IBAC’s decision to hold his examination in public. Mr Woodman contended that IBAC failed to afford him procedural fairness in deciding to hold his examination in public and, further, that it could not reasonably have considered that the criterion for holding a public examination in s 117(1)(c) of the Act was satisfied in his case.
(b)A negligence claim in respect of the decision to hold his examination in public. In broad terms, Mr Woodman contended that IBAC breached a duty of care which it owed him by publicly examining him, thereby causing him reputational damage and economic loss.
Dealing first with the negligence claim, I do not consider that Mr Woodman has established a prima facie case. The claim rests upon the premise that, in discharging its statutory functions, IBAC owed Mr Woodman a duty to take reasonable care to avoid causing him reputational damage and economic loss. In submissions, senior counsel for Mr Woodman did not advance any arguments to make good, even on a prima facie basis, the existence of such a duty of care. Such a duty would appear to be inconsistent with the proper and effective discharge of IBAC’s statutory functions, powers and responsibilities. IBAC’s principal statutory function is to identify, expose and investigate corrupt conduct. The due performance of that function may inevitably cause reputational damage and economic loss to persons under investigation. Although it is unnecessary for me to determine to finality, it would appear to be inconsistent with the effective exercise of that statutory function to place IBAC under a legal duty to take care to avoid causing damage or loss.
Mr Woodman’s public law claim that IBAC failed to afford him procedural fairness in deciding to hold his examination in public likewise does not raise a prima facie case.
Mr Woodman’s pleaded case is that IBAC did not, prior to determining to hold his examination in public:[15]
(a)invite him to make submissions as to whether holding examinations in public would, or might, cause a reasonable damage to his reputation, safety or wellbeing;
(b)disclose to him, nor give him notice of, materials upon which it was considering holding examinations in public or examining the plaintiff in public; and
(c)give him any opportunity to be heard or to make submissions as to whether IBAC should hold the examinations in public or should examine him in public.
[15]Paragraph 10.
Mr Woodman further pleads that his examination was carried out in circumstances in which it was likely to cause significant unreasonable damage to his reputation and commercial interests, and that these were matters known by IBAC. As a consequence, IBAC’s decision to hold the examinations in public, without giving him prior notice of its intention to do so and without according him an opportunity to be heard, was made in denial of his right to procedural fairness.
These allegations do not, however, raise a serious question to be tried in light of the following facts which 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.
The above facts make clear that IBAC expressly informed Mr Woodman, while he was represented by both solicitors and counsel, that it considered the statutory preconditions for him to be publicly examined were satisfied and that he was at liberty to make any submissions about the directions which would apply to the conduct of those examinations. No issue was raised by Mr Woodman’s legal representatives about the application and satisfaction of the statutory criteria. Instead, Mr Woodman’s position was that there was ‘no objection to the proposed standard directions’ to apply to his public examination. These matters are entirely destructive of any prima facie case that Mr Woodman may have had that IBAC failed to afford him procedural fairness in determining to hold his examination in public.
The other public law challenge advanced on behalf of Mr Woodman is that his examination was invalid because it was not authorised by the Act. This challenge proceeds from the basis that IBAC could not reasonably have considered that the criteria for holding a public examination in s 117(1) of the Act were satisfied. For the purposes of his interlocutory application, Mr Woodman focussed upon the criterion in paragraph (c) of s 117(1) which provides that an examination is not to be open to the public unless IBAC considers, ‘on reasonable grounds’, that ‘a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing’.
In his statement of claim, Mr Woodman pleads that IBAC knew, or ought to have known, that a public examination could not be held without causing unreasonable damage to his reputation, safety or wellbeing and that it was not open to IBAC to consider, on reasonable grounds, that a public examination could be held without causing unreasonable damage to his reputation, safety or wellbeing.[16] In support of those claims, Mr Woodman relies on various statements said to have been made by the IBAC Commissioner and counsel assisting at the public examinations held in relation to Operation Sandon.
[16]Statement of claim paragraph 31(a) and (b).
In addressing the criteria in s 117(1) of the Act, senior counsel for Mr Woodman submitted that ‘in one sense the test is subjective but there need to be reasonable grounds for that subjective opinion’. Reliance was placed on the statement by the High Court in George v Rockett that, ‘When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person’.[17] Mr Woodman also relied on the following statement by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd:[18]
It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
[17](1990) 170 CLR 104, 112.
[18](1944) 69 CLR 407, 432.
The effect of s 117(1) of the Act is that examinations must generally be held in private, and must not be open to the public unless IBAC considers, on reasonable grounds, that the conditions in subparagraphs (a)-(d) are satisfied. The existence of each of those opinions including, as is presently relevant, the requirement in subparagraph (c) that a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing, is a precondition to the exercise of the power for an examination to be held in public.[19] A departure from the general position requires IBAC to be subjectively satisfied of this jurisdictional fact which, as described by Riordan J in R & Anor v IBAC, imports a ‘discretionary value judgment’.[20] Although that assessment must be based on reasonable grounds, thereby importing an objective standard against which the assessment is to be measured, it concerns a matter which itself requires an evaluative assessment, in prospect, of a potentially wide range of factors which bear upon a determination as to whether the damage to a person’s reputation, safety or wellbeing caused by a public examination would be ‘unreasonable’.[21] Those considerations would also include the nature of IBAC’s functions under s 15 of the Act.
[19]R & Anor v IBAC [2015] VSC 374, [103] (‘R & Anor v IBAC’).
[20]Ibid [106].
[21]See the discussion and matters referred to by Riordan J in R & Anor v IBAC (n 19), [169].
These elements of s 117(1)(c) which require a subjective assessment of a question which is itself evaluative, makes it inherently difficult to establish that IBAC could not reasonably have formed the state of mind required by the section – that a public examination would not cause unreasonable damage to Mr Woodman’s reputation, safety or wellbeing. Mr Woodman’s claims that it was likely that a public examination would damage his reputation, and that IBAC knew or ought to have known that to be the case, do not properly engage with the nature of the determination required under the provision as I have described above. Neither is there any indication in the evidence that IBAC misdirected itself in making an assessment under s 117(1) of the Act in relation to Mr Woodman.
There is another formidable obstacle to both Mr Woodman’s public law claims. In the First Proceeding, the Court has already heard and determined a judicial review claim brought by Mr Woodman against IBAC. Mr Woodman could have readily challenged IBAC’s decision to examine him in public in that proceeding. In the circumstances, there is real force in the claim that the public law challenges now advanced by Mr Woodman (as against IBAC) are precluded by an Anshun estoppel.[22] Anshun estoppel, which is applicable to judicial review proceedings,[23] precludes the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of an earlier proceeding as to render it unreasonable not to have made the claim or to have raised an issue in that earlier proceeding.[24]
[22]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
[23]Tervonen v Finland (2009) FCAFC 3, [14].
[24]Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 517-518, [22] (French CJ, Bell, Gageler and Keane JJ).
There are compelling reasons why it was unreasonable for Mr Woodman not to challenge IBAC’s decision to examine him in public in the First Proceeding. There was no legal or practical obstacle to Mr Woodman raising that issue in the First Proceeding which substantially concerned the same subject matter as this proceeding. The First Proceeding also concerned Operation Sandon, including Mr Woodman’s public examination.[25] In fact, in that proceeding, IBAC successfully relied on Mr Woodman’s public examination in resisting one of his claims that he had been denied procedural fairness.[26] Mr Woodman did not advance the present challenge to his public examination in the First Proceeding, and no reason was proffered before me for why he did not do so. The lawfulness of his public examination was clearly within the scope of the First Proceeding. It is not apparent that there would have been further evidence or information necessary to agitate the present claims in the First Proceeding the procuring of which would have materially affected the length or complexity of the proceeding, which might have provided a reason for not agitating the issue at that time.
[25]See for example the First Proceeding at [10]-[11], [29], [82], [93]-[94], [131]-[135], [145]-[147], [181]-[183].
[26]First Proceeding at [132]-[135].
For the above reasons, Mr Woodman has failed to establish a prima facie case in relation to his second public law claim.
In the result, I do not consider that Mr Woodman has a prima facie case in relation to any of his claims advanced in this proceeding. It is accordingly unnecessary to consider the balance of convenience.
However, even if Mr Woodman had demonstrated a prima facie case and the balance of convenience could arguably be said to justify the grant of an interlocutory injunction, I would nonetheless have refused to grant him the relief he seeks because his delay in bringing the proceeding is so egregious and unexplained as to effectively disqualify him from such relief.
As stated by the Court of Appeal in Bradto Pty Ltd v State of Victoria,[27] ‘the issue of delay is usually regarded as a matter going to the court’s discretion once the grounds for the grant of an interlocutory injunction (including balance of convenience) have been made out’.[28] More recently, the Court of Appeal has affirmed that, given that an injunction is a discretionary remedy, delay on the part of an applicant for relief is highly relevant to the exercise of the discretion and is capable of being a powerful consideration militating against the exercise of the discretion to grant an injunction.[29]
[27][2006] VSCA 89.
[28](2006) 15 VR 65, [81].
[29]AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2020] VSCA 236, [44].
This proceeding concerns a decision made by IBAC in about November 2019. Mr Woodman has 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 he has done so when he has seen fit to litigate other judicial review claims in this Court; as I have explained, his present claims could have readily been agitated in the First Proceeding. Mr Woodman has given no explanation for his delay and I reject the submission that it was not unreasonable having regard to the complexity of the matter.
Order for disclosure of documents
In his summons, Mr Woodman sought orders that IBAC provide him with certain information and documents.[30] I did not consider that this aspect of Mr Woodman’s claim was of such urgency so as to warrant consideration in the Practice Court. Issues about the disclosure of documents can and should be managed in the ordinary course of the proceeding in accordance with the Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2015.
[30]See footnote 9 above.
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