New South Wales Supreme Court CITATION : Hagan -v- ICAC [2001] NSWSC 890 revised - 17/10/2001 CURRENT JURISDICTION: Common Law Division Admininstrative Law List FILE NUMBER(S) : SC 30039/2001 HEARING DATE(S) : 17 September 2001 JUDGMENT DATE : 11 October 2001 PARTIES : Patricia Agnes Hagan - Plaintiff (Respondent) Independent Commission Against Corruption - Defendant (Applicant) JUDGMENT OF : Taylor AJ at 1 COUNSEL : Plaintiff (Respondent) - Mr D Campbell Defendant (Applicant) - Mr N Peram SOLICITORS : Plaintiff (Respondent) - Waterhouse Solicitors Defendant (Applicant) - Crown Solicitor CATCHWORDS : Setting aside subpoena for production LEGISLATION CITED : Independent Commission Against Corruption Act 1988 (NSW) ss 4, 13, 111 Supreme Court Act 1970 (NSW) s 65 Public Service Board v Osmond (1985) 159 CLR 656; Webb v The Queen (1994) 181 CLR 41; Livesey v New South Wales Bar Association (1983) CASES CITED : 151 CLR 288; Re JRL; Ex Parte CJL (1986) 161 CLR 288; Ex Parte Blume; Re Osborne (1958) 75 WN (NSW) 411; Friends of Hinchinbrook Society Inc v Minister for Environment (1996) 45 ALD 532; DECISION : The Subpoena for Production addressed to the defendant and filed on behalf of the plaintiff on 24 July 2001 is set aside. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINSTRATIVE LAW LIST TAYLOR AJ 11 OCTOBER 2001 30039/01 - PATRICIA AGNES HAGAN v INDEPENDENT COMMISSION AGAINST CORRUPTION JUDGMENT Introduction 1 HIS HONOUR: By a Notice of Motion filed 3 August 2001 the defendant moves the Court for an order that the subpoena for production addressed to the defendant and filed on behalf of the plaintiff on 24 July 2001 be set aside. 2 The subpoena seeks the production of certain material generated by the Independent Commission Against Corruption (ICAC) in the course of its dealing with the plaintiff's complaint to it. 3 No criticism is directed to the form of the subpoena. No issue of oppression arises. The more restrictive considerations applicable to subpoenas directed to third parties do not arise. 4 The subpoena was issued in the context of the plaintiff seeking a declaration pursuant to s 65 of the Supreme Court Act to the effect that, in determining to discontinue its investigation of the plaintiff's complaints of corruption, the defendant failed to observe the rules of procedural fairness. 5 The defendant makes three submissions: (a) The documents sought are entirely irrelevant to the proceedings. (b) The production of the documents is prevented by s111 of the Independent Commission Against Corruption Act 1988 (the Act). c) If required to be produced inspection of either or all the documents sought or those sought in answer to paragraph 3 of the subpoena should be restricted to counsel for the plaintiff only. The Complaint 6 The plaintiff was a party to litigation which commenced in 1982 and was the subject of a final judgment in November 1991. 7 On 6 October 1999 a letter was sent to the defendant under the letterhead of the plaintiff's solicitor, her son ( annexure "A" to the plaintiff's affidavit of five paragraphs sworn 22 May 2001). The letter made a complaint that a senior politician had, at the request of the other parties to the litigation, somehow arranged for a particular judge to hear the case and this affected the judge's determination of the matter. A great deal of other correspondence followed which it is not necessary to consider. It is sufficient to note that on 18 December 2000 the defendant wrote to the plaintiff's solicitor advising of the outcome of the investigation. On the same day he wrote to the defendant advising that he had "concerns" about the inquiry because, inter alia, of an alleged friendship between the Commissioner, a senior politician and the senior politician referred to in the complaint (see pages 21 to 28 of the plaintiff's white book). This assertion was rejected by a letter sent the next day, page 29. The Proceedings 8 By her Amended Summons, filed 2 July 2001, the plaintiff seeks various declarations and orders relating to the determination by the defendant of the complaint. The basis for the orders sought was set out in a letter from the plaintiff's solicitors dated 29 June 2001 (annexure A to the affidavit of Dr David Galbraith sworn 3 August 2001). Further particulars of the Summons were sought (annexure B). The response sent on 9 August 2001 does not reveal any basis for the relief being sought beyond that set out in the letter of 29 June 2001. Thus the plaintiff's claim for relief has two bases: (i) That the letters which are attached hereto fail to provide the plaintiff with reasons for the determinations being referred to when procedural fairness is said to require that such reasons be given; and (ii) That there was a further breach of procedural fairness in that a reasonable apprehension of bias of the Commissioner arises from the matters referred to in the affidavits filed on behalf of the plaintiff. The basis for this allegation is what was set out in the letter from the plaintiff's solicitor dated 18 December 2000 referred to above. The Issues and Discussion Documents Have No Relevance 9 The defendant argues that determination of the Summons involves only questions of law. This is both in relation to the failure to provide arguments and the apprehended bias issues. Failure to Give Reasons 10 The defendant's letter of 18 December 2000 gives no reasons for declining to pursue the complaint further. In taking this position the defendant relies on the decision of the High Court in Public Service Board v Osmond (1985) 159 CLR 656. The Commissioner has not certified in accordance with s 111(4) (c) that it is necessary to divulge, in the public interest, information of the kind sought. Essentially the plaintiff now complains that by adopting its course the defendant has failed to observe the rules of procedural fairness. The reasons themselves are not challenged. 11 In due course the Court will need to determine whether, as a matter of law, procedural fairness was observed in terms of the defendant's letters of 18 and 19 December 2000. In the meantime production of the documents sought would pre-empt the core issue of law to be resolved in hearing and determining the Amended Summons. I am not persuaded that the plaintiff has established an entitlement to access to the material sought, at this point in the dispute. The material is not required for a fair trial of the issues disclosed in the Amended Summons. Apprehended Bias 12 There is no allegation of actual bias. The test of reasonable apprehension of bias is based on the view that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Webb v The Queen (1994) 181 CLR 41. The test is whether suspicion may reasonably be engendered in the minds of those who come before the decision maker, or in the minds of the public, that a member of the decision making body may not bring to it a fair and unprejudiced mind. Livesey v New South Wales Bar Association (1983) 151 CLR 288.; Re JRL; Ex Parte CJL (1986) 161 CLR 288. 13 Particulars giving rise to the allegation of bias identify the bias as being a predisposition on the basis of relationships between certain politicians. In due course the Court will be required to determine whether an appearance of bias is generated from the relationships particularised. This will involve application of the principles enunciated in cases such as Ex Parte Blume; Re Osborne (1958) 75 WN (NSW) 411 and Friends of Hinchinbrook Society Inc v Minister for Environment (1996) 45 ALD 532 at 538 - 542. 14 The test of the reasonable observer is an objective one. See generally Professor M. Allars Procedural Fairness: Disqualification Required by The Bias Rule 1999 4 TJR 269. 15 I am unpersuaded that the material sought by the subpoena could cast any light on the issue for the Court to decide on the hearing of the Amended Summons. What are to be decided are questions of law on issues that are presently particularised in the correspondence identified in this judgment. The Secrecy Provisions of the Act 16 The defendant argues that s 111 specifically prohibits the production of the documents sought and excuses their production to a court. 17 S111 states: Secrecy (1) This section applies to: (a) a person who is or was an officer of the Commission, and (b) a person who is or was a legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such a legal practitioner in the exercise of the legal practitioner's functions as counsel to the Commission, and c) a person who is or was a member of the Operations Review Committee, and d) a person or body referred to in s 14 (3), s 16 (4) or s 53 (6). (2) A person to whom this section applies shall not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act: (a) make a record of any information, or (b) divulge or communicate to any person any information, being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (3) A person to whom this section applies shall not be required: (a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or (b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act, except for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions. (4) Despite this section, a person to whom this section applies may divulge any such information: (a) for the purposes of and in accordance with this Act, or (b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions, or (c) in accordance with a direction of the Commissioner, if the Commissioner certifies that it is necessary to do so in the public interest, or (d) to any prescribed authority or person. (5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act. 18 The plaintiff contends that s111 does not have application as the defendant is a statutory commission and not one of the "persons' identified in subsection 1. In my opinion the functions of the Commission are exercised by persons, who if identified by subsection 1, are subject to the secrecy provisions. 19 The Commission is constituted by s 4 of the Act. It has the functions conferred or imposed on it by or under that or any other Act [s 4 (2)]. The functions of the Commission are exercisable by the Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, shall be taken to have been done by the Commission. Further, by subsection 4 a reference in the Act to anything done or omitted by, to or in relation to the Commission, includes a reference to a thing done or omitted by, to or in relation to, the Commissioner or another officer of the Commission having authority in the circumstances. 20 As one or more of the 'persons' identified in sub sec 111 (1) necessarily involved in responding to the subpoena are acting on behalf of the Commission they are subject to the secrecy provisions. The issue becomes whether they are exempt by the provisions of s 111. 21 As the proceedings are not for the purposes of a prosecution or disciplinary proceedings instituted as a result of a Commission investigation the exemption in s 111 (3) does not apply. The only exemption possibly applicable is found in s111 (4) (a) which states that despite s111, a person to whom the section applies may divulge any such information for the purposes of and in accordance with this Act. 22 The plaintiff argues that this provision should be construed so as not to oust the Court's jurisdiction to compel the production of documents in aid of the administration of justice. It is pointed out that the public interest is to be paramount in the Commission's exercise of its functions. 23 In my opinion the phrase "for the purposes of and in accordance with this Act" relates only to the carrying out by the Commission of its functions in s13 of the Act. 24 The result otherwise would be anomalous. The Commission is protected from giving reasons which would be defeated by the production of the documents called for. 25 This is particularly so in relation to paragraph 2(o) which seeks, " reports prepared or received, whether interim or final, including any reasons for determining to terminate any investigations." Conclusions 26 For the reasons given I am of opinion that the defendant is entitled to have the subpoena set aside. 27 The issue of costs will be dealt with separately. Orders 28 1. The Subpoena for Production addressed to the defendant and filed on behalf of the plaintiff on 24 July is set aside. ********************** Last Modified: 10/22/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.