Duncan v The Honourable David Andrew Ipp AO QC and Ors [2013] NSWSC 314

Supreme Court New South Wales

Medium Neutral Citation: Duncan v The Honourable David Andrew Ipp AO QC and Ors [2013] NSWSC 314 Hearing dates: 22 March 2013 Decision date: 10 April 2013 Jurisdiction: Common Law - Administrative Law Before: Hoeben CJ at CL Decision: Plaintiff's summons dismissed. Plaintiff to pay the Attorney-General's costs of the application. Catchwords: ADMINISTRATIVE LAW - natural justice - rule against bias - apprehended bias - test for - actions of Commissioner of Independent Commission Against Corruption in course of a public inquiry - ADMINISTRATIVE LAW - bias by prejudgment - public inquiry by Independent Commission Against Corruption into granting of Mining Exploration Leases - contact between Commissioner and Departments of Government - provision of legal advice by Commissioner to Departments of Government - request by Commissioner that project approval not be granted until report made by Commission - statements by Commissioner that no factual findings yet made - application for injunction against Commissioner by potential beneficiary if Mining Lease granted - INDEPENDENT COMMISSION AGAINST CORRUPTION - significance of broad investigatory and inquisitorial functions and powers - how principles of apprehended bias by a prejudgment apply to such a body - whether contact with government bodies by a Commissioner and provision of advice provided basis for claim of bias by prejudgment - no basis for claim of bias by prejudgment established. Legislation Cited: Independent Commission Against Corruption Act 1988 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Evidence Act 1995 (NSW) Mining Act 1992 (NSW) Cases Cited: CUR 24 v DPP [2012] NSWCA 65 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Gwandalan Summerland Point Action Group Inc v Minister for Planning & Ors [2010] 75 NSWLR 269 Keating v Morris & Ors [2005] QSC 243 McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48 R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 R v Carter and Attorney General(Tas) (unreported), Supreme Court of Tasmania, Full Court, October 1991 Webb v The Queen [1994] HCA 30; 181 CLR 41 Wentworth v Rogers [2000] NSWCA 368 Category: Principal judgment Parties: Travers William Duncan - Plaintiff The Honourable David Andrew Ipp AO QC - First Defendant Independent Commission Against Corruption - Second Defendant Attorney General of NSW - Third Defendant Representation: Counsel: Mr N Hutley SC/Mr G Ng/Mr A Gerard - Plaintiff Submitting Appearance - 1st and 2nd Defendants Mr B Walker SC/Mr S Free - 3rd Defendant Solicitors: Yeldham Price O'Brien Lusk - Plaintiff IV Knight, Crown Solicitor (NSW) - 1st, 2nd and 3rd Defendants File Number(s): 2013/68363