Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 Hearing dates: 26-27 February 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Before: Bell CJ and Meagher JA at [1]; Ward P at [311] Decision: Amended Summons dismissed with costs. Catchwords: ADMINISTRATIVE LAW — judicial review of "serious corrupt conduct" findings made by Independent Commission Against Corruption against former Premier — where Commission's report adopted findings of credibility made by person who presided at public inquiries — where the appointment of the person who presided at public inquiries as an Assistant Commissioner expired after conclusion of those public inquiries and that person appointed as a consultant and accordingly officer of Commission prior to report being finalised — whether assistance of presiding officer as consultant in preparation of report outside limits of her authority — whether Commission could adopt credibility assessments made by presiding officer after her appointment as Assistant Commissioner had expired ADMINISTRATIVE LAW — judicial review of "serious corrupt conduct" findings made by Independent Commission Against Corruption against former Premier — whether "no evidence" to support finding applicant influenced by her private interest in maintaining close personal relationship — whether non-pecuniary personal relationship capable of being "private interest" giving rise to conflict of interest and public duty — whether applicant as parliamentarian and Minister of the Crown had legally enforceable positive duty to act only according to what she believed to be in public interest — whether Commission made findings about merits of funding proposals — whether s 7 of NSW Ministerial Code and cll 10-12 of Schedule to code applies to Premier — whether applicant's conduct in relation to funding decisions constrained by duty to act impartially — whether finding of partial conduct requires finding that but for unacceptable reason conduct would not have occurred — whether finding of partial conduct requires comparative exercise — whether Commission reached illogical or irrational result by making "serious corrupt conduct" finding but also refusing to recommend advice be sought as to whether to prosecute applicant — whether "dishonest" in s 8(1)(b) of Independent Commission Against Corruption Act 1988 (NSW) requires person to realise his or her conduct dishonest according to standards of ordinary people Legislation Cited: Constitution Act 1902 (NSW), s 35E(1) Evidence Act 1995 (NSW), s 55(1) Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 3(1), 4(1), 5(1), 6, 6A, 7(1), 8, 9, 11, 13, 17, 18(2), 20, 30, 31, 31B, 55, 57B, 74, 74A-74D, 75, 77, 77A, 104B, 107, 111, 112(1), Sch 1, cl 5(4) Interpretation Act 1987 (NSW), s 35 Restart NSW Fund Act 2011 (NSW), s 3 Supreme Court Act 1970 (NSW), ss 48, 51(2), 69 Independent Commission Against Corruption Regulation 2017 (NSW), cl 5 NSW Ministerial Code of Conduct, Preamble, cll 1, 3, 4, 11, ss 1, 4, 6-12, Sch, cll 2(3)(c), 3(5)(c), 10-13, 27 Cases Cited: Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461 Amaba Pty Ltd v Booth [2010] NSWCA 344 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Ballina Shire Council v Knapp [2019] NSWCA 146 Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Edge v Pensions Ombudsman [2000] Ch 602 Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Hartnett t/as Hartnett Lawyers v Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Local Government Board v Arlidge [1915] AC 120 Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250 Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 Maitland v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 New South Wales v Bardolph (1934) 52 CLR 455; [1934] HCA 74 Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 Boardman v Phipps [1967] 2 AC 46 Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales [2021] NSWCA 64 R v Boston (1923) 33 CLR 386; [1923] HCA 59 R v Ghosh [1982] QB 1053 R v Love (1989) 17 NSWLR 608 R v Maudsley (2021) 9 QR 587; [2021] QCA 268 R v Obeid (No 2) [2015] NSWSC 1380 Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39 Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208; [1976] HCA 36 Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48 Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92 Woodham v Independent Commission Against Corruption (1993) 30 ALD 390 Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48 Texts Cited: Anne Twomey, The Constitution of New South Wales (2004, Federation Press) Explanatory Note to Independent Commission Against Corruption Bill 1988 (No 2) (NSW) Independent Commission Against Corruption Bill 1988 (No 2) (NSW) Independent Commission Against Corruption, Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel) (June 2023) Sir Frederick Jordan, Chapters on Equity in New South Wales (6th ed, 1947, Thomas Henry Tennant) Category: Principal judgment Parties: Gladys Berejiklian (Applicant) Independent Commission Against Corruption (Respondent) Representation: Counsel: B Walker SC and H Cooper (Applicant) S Free SC and J Kennedy (Respondent)