McCloy v Latham [2015] NSWSC 1879

Supreme Court New South Wales

Medium Neutral Citation: McCloy v Latham [2015] NSWSC 1879 Hearing dates: 12 November 2015 and 13 November 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Common Law Before: McDougall J Decision: Summons dismissed with costs Catchwords: ADMINISTRATIVE LAW – judicial review – apprehended bias – where plaintiff was a witness in an inquiry conducted by the Independent Commission Against Corruption – where he alleges that the Commissioner might not bring an open mind to the question of what, if any, findings to make in respect of him – applicable test of whether a fair-minded lay observer might reasonably apprehend the same – where the conduct complained consisted of numerous episodes before and during the ICAC proceedings – where no episode alone could give rise to a reasonable apprehension – result that the cumulative effect of the episodes together could not do so – where much of the conduct referable to counsel assisting, rather than the Commissioner – whether attributable to the Commissioner – where many episodes explicable by reference to context – where, in any event, no rational connection was demonstrated between impugned conduct and the allegation that the Commissioner would not bring an open mind to her task – consequence that observer could not reasonably form the apprehension suggested Legislation Cited: Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Election Funding, Expenditure and Disclosures Act 1981 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Independent Commission Against Corruption Amendment Act 2015 (NSW) Police Integrity Commission Act 1996 (NSW) Cases Cited: Aristodemou v Temby (Grove J, 14 December 1989, unreported; BC8901329) Browne v Dunn (1893) 6 R 67 Donaldson v Wood (Hunt CJ at CL, 12 September 1995, unreported; BC9507330) Duncan v Independent Commission Against Corruption (2014) 311 ALR 750 Duncan v Ipp (2013) 304 ALR 359 Dunghutti Elders Council (Aboriginal Corporation) v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 279 ALR 468 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 Isbester v Knox City Council (2015) 89 ALJR 609 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Lee v Cha [2008] NSWCA 13 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Vos (2011) 223 A Crim R 316 Category: Principal judgment Parties: Jeffrey Raymond McCloy (Plaintiff) The Honourable Megan Latham (First Defendant) Independent Commission Against Corruption (Second Defendant) Attorney-General for New South Wales (Third Defendant) Representation: Counsel: I D Faulkner SC / R L Gall (Plaintiff) N J Williams SC / B Kremer / D Hume (Defendants)