Duncan v Ipp [2013] NSWCA 189

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Duncan v Ipp [2013] NSWCA 189 Hearing dates: 8 May 2013 Decision date: 25 June 2013 Before: Bathurst CJ at [1]; Barrett JA at [217]; Ward JA at [220] Decision: 1. Leave to appeal granted 2. Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - apprehended bias - pre-judgment - Independent Commission Against Corruption (ICAC) - conduct of the Commissioner of the ICAC.

ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - test for reasonable apprehension of bias - application of test to investigatory body - scope of Independent Commission Against Corruption Act 1988.

ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - test for apprehended bias - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 - whether there was a logical connection between the conduct of the Commissioner and the alleged apprehended bias.

ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - whether contact between the Commissioner, the Executive and Government Departments, advice provided by the Commissioner and the circumstances of providing such advice either separately or holistically established apprehended bias. Legislation Cited: Environmental Planning and Assessment Act 1979 Pt 3A, s 75V Independent Commission Against Corruption Act 1988, s 2A, s 10, s 12, s 13, s 14, s 16, s 17, s 20, s 30, s 31, s 53, s 73, s 74, s 111, Schedule 1 Cases Cited: Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 R v Lusink; Ex parte Shaw (1980) 32 ALR 47 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Category: Principal judgment Parties: Travers William Duncan (applicant)The Honourable David Andrew Ipp AO QC (first respondent)Independent Commission Against Corruption (second respondent)Attorney General of NSW (third respondent) Representation: Counsel: N Hutley SC and G Ng (applicant)Submitting Appearance (first and second respondents)B Walker SC and S Free (third respondent) Solicitors: Yeldham Price O'Brien Lusk (applicant)I V Knight, Crown Solicitor (NSW) (first, second and third respondents) File Number(s): 2013/111103 Publication restriction: No Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 314 Date of Decision: 2013-04-10 00:00:00 Before: Hoeben CJ at CL File Number(s): 2013/68363