Supreme Court New South Wales Medium Neutral Citation: XX v Attorney General of New South Wales [2011] NSWSC 658 Hearing dates: 01/06/2011 Decision date: 01 June 2011 Jurisdiction: Common Law Before: Rothman J Decision: (i) Summons dismissed; (ii) The plaintiff pay the third defendant's costs of and incidental to the proceedings as agreed or assessed. Catchwords: ADMINISTRATIVE LAW - natural justice - prejudgment and apprehension of bias - second decision made on remitter after the quashing of the first decision - outcome the same - no bias and no reasonable apprehension of bias - alleged breach of the Hardiman principles - no bias arising from breach - otherwise no error of law Legislation Cited: Civil Procedure Act 2005 Criminal Assets Recovery Act 1990 Police Integrity Commission Act 1996 Uniform Civil Procedure Rules 2005 Cases Cited: Carruthers v Connolly [1998] 1 Qd R 339 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 New South Wales Crime Commission v Police Integrity Commission; Giorgiutti v Police Integrity Commission [2011] NSWSC 443 R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634 Category: Principal judgment Parties: XX (Plaintiff) The Attorney-General for the State of New South Wales (First Defendant) The Honourable Jerrold Cripps QC, Assistant Commissioner, Police Integrity Commission (Second Defendant) Police Integrity Commission (Third Defendant) Representation: Counsel: S J Burchett (Plaintiff) C Mantziaris (First Defendant) Submitting appearance (Second Defendant) A J Sullivan QC (Third Defendant) Solicitors: TressCox Lawyers (Plaintiff) Crown Solicitor's Office (First Defendant) Submitting appearance (Second Defendant) Police Integrity Commission (Third Defendant) File Number(s): 2011/177231 Judgment 1XX, an officer of the New South Wales Crime Commission (hereinafter "the Crime Commission"), named in submissions made by counsel assisting to the Assistant Commissioner of the Police Integrity Commission (hereinafter "PIC"), seeks orders quashing a second decision of the PIC to conduct investigation hearings in public. 2It is necessary to recite, briefly, some procedural background. Initially, the plaintiff, together with another officer of the Crime Commission and the Crime Commission itself, sought, in two separate initiating processes, to quash a decision made by the Assistant Commissioner of the PIC who decided to conduct an investigation. A subsidiary issue in those proceedings was whether an investigation into the Crime Commission should be held in public. 3In New South Wales Crime Commission v Police Integrity Commission; Giorgiutti v Police Integrity Commission [2011] NSWSC 443 , (hereinafter "the first judgment"), the Court, as presently constituted, determined that the PIC had jurisdiction to investigate the conduct of the Crime Commission (or its officers) in relation to the Crime Commission's conduct of proceedings under the Criminal Assets Recovery Act 1990 (hereinafter "CARA") insofar as it concerned consent arrangements for restraining orders and confiscation orders made under CARA. 4In the process of issuing judgment, and reasons for judgment, in the first proceedings, the Court determined that two alleged acts of misconduct, concerned with allegedly sham superannuation arrangements and an allegedly misleading statement as to the role of the Court in consent orders, were not within the remit of the investigation that had already been announced by the PIC. As a consequence of that finding, the Crime Commission sought consequential orders, namely the quashing of the determination to hear the investigation in public, because a consideration in that decision, being an irrelevant consideration, was the conduct described and which the Court had held to be outside the terms of the investigation. The present plaintiff did not seek those consequential orders. 5The Court, with some hesitation, quashed the decision to hear the investigation in public and remitted the matter to the Assistant Commissioner for determination again. The hesitation of the Court was occasioned by the strength of the submission of the PIC that consideration of the two allegations of misconduct, held by the Court to be outside the terms of the announced investigation, although irrelevant, would have made no difference to the outcome of the determination. Nevertheless, the Court issued the orders and remitted the matter to the Assistant Commissioner for determination. 6These proceedings arise because the plaintiff seeks to quash the second decision to hear the investigation in public, alleging, amongst other things, that the Assistant Commissioner should have disqualified himself on the basis of prejudgment and/or apprehended bias. 7Before dealing with the substantive issue, an issue arises as to the suppression of the name of the plaintiff, with which it is necessary for the Court to deal. 8On 30 May 2011, Hidden J made interim orders in accordance with the request of the plaintiff in these proceedings, that the name of the plaintiff and/or the nature of these proceedings, or any information able to reveal either of those facts, be not published. 9At the moment there are other proceedings before the Court in its criminal jurisdiction, relating to another former officer of the Crime Commission, Mr Standen. I should stress that nothing in any of the allegations that are before the PIC, or that relate to any matter before the Court in this case, relates to any matter associated with the proceedings before the Court in the trial of Mr Standen. 10Having said that, a publication of the name of the plaintiff, who is a witness in those proceedings, may prejudice or affect the interpretation by the jury of that person's credibility, or the like, and, frankly, I do not want to interfere with the jury's assessment of anyone's credibility, either the defendant in those proceedings or any witness in those proceedings. As a consequence, I will continue the order in relation to the name of the plaintiff. 11As to the nature of the proceedings, I will lift the order suppressing any description of the nature of these proceedings, because it seems to me that any adequate representation of the proceedings that are before the Court as presently constituted would obviously not concern the issues that are otherwise before the Court in the Standen trial. I expect that the press will describe the proceedings generally in an accurate manner and I cannot see that there would be confusion about the two different issues. Further, I have a view that juries have the capacity to draw the distinction between proceedings underway relating to whether confiscation of assets matters have been dealt with appropriately by the Crime Commission and an alleged offence by a defendant in criminal proceedings or the credibility of a witness in those proceedings. As a consequence, I will make the following order: (1) Pending further order of the Court in relation to this matter, that is the suppression order, the name of the plaintiff, or any information able to reveal his identity, not be published. That order may be entered forthwith. 12As a matter of procedure, I will provide a copy of that order, once made, to James J, who is hearing the Standen matter, and he will be in a position then to determine when it is appropriate for that order to be varied. 13I now deal with the substantive matter. The Court is required to deal with an application by an interested person in the decision, hereafter called the "second decision" of the Assistant Commissioner appointed pursuant to the Police Integrity Commission Act 1996 (hereafter "the PIC Act") to investigate matters that were announced on 13 December 2010 as being the subject of public investigation. 14The challenge is to the determination by the Assistant Commissioner that the hearing into that investigation will be held in public. That decision was announced on 24 May 2011 and, it seems, notified to the parties by a letter dated 25 May 2011. The Assistant Commissioner issued reasons for the decision on 24 May 2011. 24 May 2011 was the same date on which the Court, as presently constituted, quashed the original decision of the PIC, being the first decision to hear in public the inquiry, namely the investigation, the scope and purpose of which was announced on 13 December 2010. I will hereinafter refer to that as "the investigation". 15On 25 May 2011, a letter was written on behalf of the plaintiff to the "Acting Commissioner" of the PIC asking him to disqualify himself from taking any further part in, or making any further decision relating to, the investigation, whether in public or otherwise. That letter was not received before the PIC notified the parties or interested persons of the second decision to hold the hearings in public and notified the plaintiff and others that those public hearings would be held commencing 10.00am on Thursday 2 June 2011. 16The letter from the Assistant Commissioner, the Honourable Jerrold Cripps QC, also specified the general scope and purpose of the proposed public hearings and that the hearing tomorrow, that is 2 June 2011, will be a directions hearing at which persons wishing to seek leave to appear, or authorisation to be legally represented, would appear and, it seems, nothing more would occur. Thereafter, on receipt of the letter from the plaintiff of 25 May 2011, the Assistant Commissioner invited the plaintiff to attend the directions hearing tomorrow and to make any application for disqualification as the plaintiff is advised to make. 17These proceedings have somewhat unusually pre-empted the application before the tribunal to disqualify itself. I hasten to add that in ordinary circumstances that should be avoided. It would ordinarily be appropriate for any application for disqualification to be made to the tribunal itself. However, in the unusual circumstances of these proceedings, I have allowed the parties to put all of the submissions they wish to make in relation to that disqualification issue mainly because in one sense a hearing in public of the disqualification proceeding before the inquiry pre-empts or renders nugatory the nature of the application that is currently before me today. 18Following the letter of 26 May 2011 in which the plaintiff was invited to make any submissions that he may wish, the plaintiff's solicitors were notified that the decision of the Assistant Commissioner had been made on 24 May 2011. On 27 May 2011 a letter was sent by the plaintiff's solicitors notifying the Attorney General of the proposed summons filed in Court on Monday. On 30 May 2011 that summons was filed. The plaintiff in the summons seeks to quash the decision of the PIC to hold a public hearing on a number of bases: (1) bias, by which I include both a reasonable apprehension of bias and actual pre-judgment of the issues; (2) the consideration of irrelevant matters, namely the interim submissions of counsel assisting; (3) error of law in the understanding of CARA; (4) the allegations of misconduct against the plaintiff had no basis in law; (5) and lastly, the failure to take into account the submissions of the plaintiff on the operation of CARA. 19The plaintiff is seeking to have the Court restrain the Assistant Commissioner from continuing the inquiry at all and from any inquiry occurring in public, at least on the basis of the decision already made. 20I should point out that yesterday the matter was brought before the Duty Judge for urgent interim or interlocutory orders and was referred to me, after I had concluded a hearing, because of my earlier judgments in this matter and my familiarity with the subject matter. By agreement between the parties, and at the suggestion of the Court, the matter has been listed for final hearing today, given the impending hearing tomorrow, and not for interlocutory orders. 21I will deal firstly with the apprehension of bias principles as they apply to judicial officers or quasi-judicial officers. 22The general principle is that a judge should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to the resolution of the questions involved in it: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 292 and R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 248-263. 23It is inappropriate for a judicial officer to take "the easy option" and accede to such an application, that is for disqualification, without coming to the conclusion that it is necessary. Judicial officers and members of most tribunals are under a duty to hear and determine matters allocated to them: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 and Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634. 24In the last-mentioned matter, that is in Re Polites , supra, the High Court was dealing with a member of the Australian Industrial Relations Commission, who determined that there was a reasonable apprehension that he could not bring an impartial mind to the determination of the issues in the proceedings, because he had previously advised one of the parties before the Commission on an issue relevant to the proceedings. Yet the High Court determined that he was required, in the circumstances, to sit, to hear and to determine the proceedings allocated to him. The High Court issued mandamus to effect that course. 25Thus, it is necessary for me to determine whether, whatever be the inclination of the Assistant Commissioner, there is a reasonable apprehension that he could not bring an impartial mind to the determination of the issues in the matters that are before him. I use the term "matters" other than in a constitutional sense. 26In order for there to be a reasonable apprehension of the relevant kind, it is necessary that a fair-minded lay observer, properly informed, might reasonably apprehend that he might not bring an impartial mind to the resolution of the issues in the proceedings: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at p 344. 27In Ebner , supra, at 345, the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) discussed the underlying philosophy behind the principle in a way that informed its application. Their Honours said, at [8]: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 28However, as the High Court stated in the Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, the application of rules against bias depends critically on the nature of the task being undertaken. The High Court said: "It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker." (At [187], per Hayne J.) 29In investigations, i.e., proceedings such as those now undertaken by the Assistant Commissioner, the more obvious analogy is with Royal Commissions. The Assistant Commissioner may make findings that involve serious allegations against individuals, not necessarily the plaintiff, but including the plaintiff. In this case the plaintiff alleges not only a reasonable apprehension of bias, but actual prejudgment. Yet the plaintiff does not, as I understand it, contend for a personal interest bias, as it has become known. It is necessary in those circumstances to consider the test for actual and apprehended bias on the basis of prejudgment. 30I have referred already to the judgment of the High Court in Jia Legeng , supra. In that case, in the joint judgment of Gleeson CJ and Gummow J, with which aspect Hayne J agreed, their Honours said, at [72]: "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion." 31As earlier stated, the test in relation to apprehended bias is probably best expressed in the judgment of the High Court in Livesey , supra, where, at 293, the High Court described bias as occurring where: "the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." 32Similar comments were made in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 in which Gaudron and McHugh JJ referred to the reasonable bystander, paraphrasing, not entertaining a reasonable fear that a decision-maker or judge will bring an unfair or prejudiced mind merely because a conclusion has been formed about an issue involved in the inquiry. What must be established is that the decision-maker is so prejudiced in favour of a conclusion already formed that she or he will not alter that conclusion irrespective of the evidence or arguments that are put to her or him. 33I turn then to the aspects of the application of those matters to the current proceedings. The plaintiff relies, in relation to the apprehension of bias, on a number of matters and the context in which those matters are decided. In particular, the plaintiff relies upon the Assistant Commissioner's statement of reasons of 24 May 2011, which in large part reiterate the factors that were weighed and the balance that was to be struck between the two major elements in the decision to hold these hearings in public that were announced in relation to the first decision. 34The Honourable Jerrold Cripps QC said: "There is a public interest in the processes of public bodies being accountable. Matters where misconduct may arise require a balance to be struck between possible damage to reputation and accountability of matters of public administration such as the conduct of officers of the New South Wales Crime Commission in action under the Criminal Assets Recovery Act 1990. Parliament has given a discretion to the Police Integrity Commission to strike the balance between the relevant private interests and the public interest and the Police Integrity Commission has determined that the balance lies in favour of public exposure of the issues including the taking of further evidence." 35The plaintiff points to the fact that these words bear a striking resemblance to the words of the original decision which, for the reasons already provided, were quashed in the judgment of the Court on 24 May 2011. They do bear a striking resemblance, but, of itself, that does not in my view disclose bias, prejudgment or an apprehension of bias or prejudgment. 36On 24 May 2011, the Acting Commissioner, as he then was, went on in those reasons to refer to the judgment I issued, in fact both judgments, and recorded that in reaching the decision to hold the public hearing, he has done so without taking into account, or considering as relevant, any allegation in the two matters which I held, in the judgment of 17 May 2011, to be beyond the scope of the investigation that had been announced. 37He further went on to refine the expressed scope and purpose of the investigation by inserting the words "and in connection therewith" as a preamble to "the second limb", as it was called in those judgments. In my view that indicates an understanding of the judgments of the Court and a reconsideration of both the investigation and the decision or determination as to whether or not the matter should be held in public. 38It has been said that, given the timing of the second decision to hold the investigation by way of public hearings, the Assistant Commissioner has not taken into account submissions that were put to him. There are two answers to that submission. The first is that all that could have been put was put in relation to the first decision. The second is that it was fairly plain that the two matters that were beyond the scope of the investigation were not the major or substantive matters that were considered by the Assistant Commissioner even in the first decision to hold the proceedings in public. 39As I said in the reasons for judgment of 24 May 2011: "[20] In this case, the PIC submits that the errors identified and with which these reasons deal are so minor, in the scheme of the misconduct sought to be investigated, that they could not have affected the determination of whether to conduct the investigation in public. There is much to be said for the submission of the PIC in this regard. However, expressly (see earlier judgment at [93]) the possible misconduct of one or more officers of the Crime Commission has been a factor taken into account by the Commissioner in determining whether to hold the proceedings in public. The possible misconduct to which reference is made includes the two issues which the Court has determined are beyond the scope and purpose of the investigation as announced. It is unlikely that these two areas of misconduct substantially affected the determination to conduct the proceedings in public, but they may have." 40There was much to be said for the submission of the PIC in the first proceedings that the two matters are so minor they ought not give rise to orders quashing the decision but I, ultimately, came to the view that that was a matter for the Assistant Commissioner in determining whether to hold the proceedings and required him so to do. That he has done. 41The other submission put on behalf of the plaintiff that, he says, discloses bias, relates to the involvement of the Assistant Commissioner in correspondence as to the decision to be taken and the "allegation of leaks" to the press. An allegation was made by either the Crime Commission or one of its officers, that the PIC, or persons associated with it, had leaked material to the media. The Assistant Commissioner wrote to the New South Wales Police asking it to investigate the allegation that a person associated with the PIC had leaked the material. 42The plaintiff alleges that the terms of the correspondence, particularly the Assistant Commissioner's description of the allegation as "alleged", was "in the style of a party and protagonist, rather than an independent enquirer". I do not accept that submission. The Assistant Commissioner was faced with an allegation that someone had leaked material to the press. It was not suggested that it was the Assistant Commissioner. 43In the circumstances, the Assistant Commissioner referred that allegation to the New South Wales Police and asked them to investigate it. Contrary to the submission of the plaintiff, such a referral, and its terms, disclose an open mind, rather than either prejudgment or bias against the Crime Commission. 44Further, and to similar effect, the plaintiff submits that the alteration made by the Assistant Commissioner to the wording of the announced inquiry, was either a breach of the Court's earlier orders or a factor which, with others, discloses bias. The alteration made by the Assistant Commissioner was to insert the words "and in connection therewith" at the conclusion of the first limb of the announced inquiry as an introduction to the second limb. 45Notwithstanding that the words "in connection with" are of wide import, the effect of the alteration is to express in the announced terms, the view taken by the Court, in its earlier judgments, namely, that the investigation into the conduct of CARA proceedings was only to the extent that it was connected with the alleged misconduct of officers of the Crime Commission. In so doing, the Assistant Commissioner narrowed the terms of the inquiry so that it expressly, and more clearly, reflected the judgment of the Court. Rather than disclose bias or prejudgment, the alteration discloses an appreciation of the reasons for judgment issued by the Court and a desire by the Assistant Commissioner to provide clarity in the investigation and to abide by the law. This is not a factor that, in my view, discloses bias or prejudgment; it discloses, if anything, the opposite. 46As already stated, the plaintiff submitted that the engagement by the PIC in correspondence with them was a consideration which disclosed bias. A particular aspect of that involvement by the PIC needs to be restated. The Assistant Commissioner, the plaintiff informs me, was appointed to investigate these allegations, in order to avoid any suggestion that the prior relationship between the PIC and the Crime Commission would, itself, give rise to an apprehension of bias. 47The Assistant Commissioner was appointed by the relevant committee within the PIC so that he, as a former judge and a person acting structurally independently from the PIC, could conduct an independent inquiry, without the history of relationship between the PIC and the Crime Commission. As a consequence, the submission of the plaintiff, in this regard, takes on a particularly circular aspect. 48The plaintiff submits that the correspondence should have been undertaken by the PIC officers and not the Assistant Commissioner. Yet, the inquiry has been established in the manner it has because the PIC officers may have an apprehended bias or prejudgment. As a result, the Assistant Commissioner (or independent persons appointed to assist him) were the only persons who, it seems, could validly undertake the correspondence. For the Assistant Commissioner to refer the correspondence between the Assistant Commissioner and the Crime Commissioner to the PIC's ordinary officers would be to infect the Assistant Commissioner with the apprehended bias of the ordinary PIC officers. Of course, it would have been preferable, if an independent secretary or administrative officer were to have corresponded, rather than the Assistant Commissioner. But the involvement of the Assistant Commissioner in that correspondence does not disclose bias. 49The next aspect of the application for apprehended bias upon which the plaintiff relies is the application of the Hardiman principles. This is a principle that relies upon the judgment of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 and I refer particularly to [35]-[36]. The effect of that statement by the High Court was that, when the conduct or decisions of a body is challenged, it or its members should not become protagonists, other than in exceptional circumstances. It is preferable that the adversarial role be assumed by some other party. 50It is a principle which is honoured in relation to every adjudicative tribunal that operates in Australia and its States. It ensures that no question can arise as to the impartiality of the tribunal in determining the issues that the plaintiff in such proceedings may wish to have determined. Slightly different considerations need to be dealt with when one is referring to an administrative body that is investigative in nature. I have asked counsel as to whether the statements in Hardiman have ever given rise to an application for bias. No example has been provided to the Court. That does not mean that there are not examples, only that at this stage the Court is unaware of them. Nevertheless, the principles in Hardiman are important and they are important because justice must not only be done, it must be seen to be done. 51Counsel for the plaintiff refers to the judgment of the Queensland Supreme Court in Carruthers v Connolly [1998] 1 Qd R 339, per Thomas J. An extract of that judgment has been given to the Court. A full copy of the judgment shows that while his Honour referred to the fact that at an early stage of the proceedings the investigative body, the Criminal Justice Commission of Queensland (hereinafter "the CJC"), participated actively in the proceedings, it declined so to do when there was another contradictor. However, the comments in relation to bias in Carruthers , supra, are not comments directed to the participation of the CJC in the proceedings that were then before the Court. They are in fact a comment in relation to well-known and publicised political views of one or more of the tribunal members in circumstances where that which was before the CJC had certain political overtones to which those views were allegedly relevant. As a consequence, Carruthers , supra, is not an exception to the lack of knowledge of the Court in relation to the application of Hardiman , at a later time, to form a successful basis for bias. 52It is necessary, therefore, to deal with the matter on the basis of first principles. 53In Hardiman , the High Court was concerned with a tribunal that was an administrative inquiry with statutory responsibility to inquire into an issue. It was bound to discharge that responsibility, notwithstanding that the same issues could arise in proceedings for offences against the relevant statute. The Tribunal actively participated in the proceedings in the High Court. To that active participation, the Court said: "In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal." ( Hardiman , supra, at p35-36, per Gibbs, Stephen, Mason, Aickin and Wilson JJ.) 54The stated practice relating to tribunals, or investigative bodies, appearing in the High Court is equally applicable to appearances in this Court. Nevertheless, the judgments which restate the Hardiman principle (itself a statement of longstanding principle) continually refer to the risk that the tribunal will endanger its impartiality or that bias could arise, rather than the proposition that impartiality or bias will, necessarily or consequentially, arise. Further, it is necessary to examine the particular role of the Tribunal before the Court. 55The proceedings that were before the Court and gave rise to the judgments of the Court on 17 May 2011 and 24 May 2011 were matters concerning the power of the PIC to undertake an investigation into the Crime Commission and/or its officers in the terms that it had announced. The issue before the Court was an issue concerned only with the jurisdiction and powers of the PIC and its capacity to undertake an investigation of that kind. It is true the PIC participated in the proceedings. It is also accepted that the Assistant Commissioner gave some instructions in relation to those matters. Given that there were significant issues before the Court as to the focus of the inquiry, and what had thus far occurred, it would be understandable (although not necessarily optimal) that the Assistant Commissioner would give such instructions. The PIC were at pains to differentiate the role of the counsel assisting and the Assistant Commissioner in relation to those matters. 56The apprehension of bias, either as to the nature and extent of the allegations or whether or not there should be a public hearing, is not a matter which on its merits is concerned in any way, or is affected in any way, by the conduct of the proceedings before this Court, either on the earlier occasions or on this one. Therefore, the participation by the PIC and/or the Assistant Commissioner in these proceedings, while regrettable, and possibly necessary, is not a matter which discloses to a properly informed reasonable person, who is observing the proceedings, a determination or a pre-determination that the merits of whether there should be a public hearing, or the merits of any allegation against persons, made by the counsel assisting would be accepted or not accepted. Ultimately, for there to be pre-judgment, there must be a state of mind of the kind to which I have earlier referred, or there must be a reasonable apprehension by an informed lay observer that there would be a risk of bias in the determination of the proceedings. 57These are investigative proceedings. The lay observer would expect there to be some pursuit of allegations that are made and a determination of whether those allegations have a reasonable basis or not. Nothing that has been put to me in the proceedings so far suggests either actual pre-judgment or an apprehension of bias, either on the question of whether there should be a public hearing or on the substantive matters to be investigated. 58I will deal very briefly with the allegation that there has been consideration of an irrelevant matter, namely, the interim submissions of counsel assisting. The Assistant Commissioner has made it clear, on all of the material before me, that he has taken into account all of the submissions put to him, including the interim submissions of counsel assisting. He was entitled so to do. He may have been required so to do, but it is unnecessary to deal with that issue. They are submissions. While the relationship between a Commissioner of the kind with which I am now concerned and counsel assisting is a little closer than the ordinary relationship between counsel and judicial officers in proceedings in court, there is a distinction between the submissions of counsel assisting and the view of the Assistant Commissioner and I do not consider that consideration of interim submissions of counsel assisting is an irrelevant matter. To that extent, and in that regard, the Court does not find in accord with the submissions of the plaintiff. 59The third issue is the error of law and the understanding of CARA. Mr Sullivan, who appears for the PIC in these proceedings, submits that issue estoppel arises. This may well be the case, although I am mindful that in judicial review proceedings, where there are different decisions under challenge, very little is binding on the parties in the strict sense of the term. I refer, in particular, to the judgment of the Court of Appeal in Sydney Ferries v Morton [2010] NSWCA 156. That judgment, of course, concerned factual findings, but, nevertheless, there is much to be said for that approach even in relation to issues of law. 60The submission of the plaintiff does not pay proper regard to the judgment of the Court on 17 May 2011. At [110], I said: "It is not to the point that s 16A [of CARA] does not regulate or confine the making of an assets forfeiture order. The issue goes to the consideration and criteria that inform the decision of the officers of the Crime Commission in reaching such an agreement and whether a failure to consider the provisions of s 16A of CARA, and the scope and purposes of CARA, amounts to misconduct." 61At [116], I said: "It may be that the conduct of the officers of the Crime Commission was not misconduct. It may be, as a matter of law, the constraints and purposes of s 16A of CARA do not inform the exercise of the discretion of an officer of the Crime Commission in reaching an agreement as to a restraining order or as to a forfeiture order. I doubt that to be the case. Nevertheless, it is possible. But even if it were so, that would not make an investigation into such conduct impermissible. The Court has already referred to the judgment of the High Court in Melbourne Stevedoring , supra, and it would be necessary for the plaintiff officers to show there is no arguable basis for any allegation of misconduct in relation to that activity. Given that the allegations of misconduct include allegations of improper purpose, this ground, too, does not withstand scrutiny." 62As I understand it, the allegations that are made by the counsel assisting include a failure to have regard, in relation to the scope and purposes of the discretion reposed in the officers of the Crime Commission, to the plain purposes of CARA, namely, that property which is illegally derived property should not be capable of being used either for the payment of legal expenses or otherwise for the ordinary purposes of the person who has engaged in that illegal activity. 63Secondly, the allegations concern allegations of improper purpose in the terms of consent arrangements that have been made. As a consequence, whether or not, as a matter of strict construction, s 16A of CARA is a matter that the Court needs to take into account in determining matters, for example, under s 22 of CARA, that construction is not an issue which determines or limits the allegations of misconduct that are before the PIC. 64The Court takes the view that the misunderstanding, if any, of counsel assisting of the effect of CARA does not bind the Assistant Commissioner and would not vitiate, by error of law, the decision to hear the matter in public or to conduct the investigation. Nor, I hasten to add, does it say anything about pre-judgment or apprehension of bias in the Assistant Commissioner. 65Each of the other matters seems to have been dealt with in the course of the earlier judgments. 66Since the matter was determined, and the foregoing reasons delivered ex tempore, leave was granted for written submissions on costs. While written submissions have been filed in relation to the earlier proceedings, no written submissions have been filed in this matter. 67The plaintiff has been wholly unsuccessful, and the PIC has been wholly successful. Ordinarily, costs follow the event: r 42.1 of the Uniform Civil Procedure Rules 2005. While the Court possesses a broad discretion to determine by whom, to whom and on what basis costs should be ordered (s 98 of the Civil Procedure Act 2005), that discretion must be exercised judicially. 68The plaintiff submits that the Hardiman principles (or the breach of them) warrants a course out of the ordinary. As made clear in these reasons, to some extent the Assistant Commissioner has been appointed to separate this inquiry from the ordinary role of the PIC. 69The Assistant Commissioner, the Honourable Jerrold Cripps QC, has not participated in these proceedings. The PIC, as a corporate entity, appeared and was the contradictor. Because of the deliberate separation or bifurcation of the two, the Hardiman principles are more applicable to the Assistant Commissioner, than to the PIC. But the Hardiman principles still apply to the PIC. Nevertheless, the PIC, as a corporate entity, which previously accepted that there was a risk of bias necessitating the appointment of an independent "inquirer", and excluded itself from the inquiry, ought not be denied its costs because of its breach of the Hardiman principles. 70For those reasons, the Court will order that the plaintiff pay the costs of the PIC. The Court makes the following orders: (i) Summons dismissed; (ii) The plaintiff pay the third defendant's costs of and incidental to the proceedings as agreed or assessed. ********** 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. Decision last updated: 30 June 2011