Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Atkinson v Independent Commission Against Corruption [2016] NSWCA 194 Hearing dates: On the papers Decision date: 08 August 2016 Before: Bathurst CJ, Beazley P, Basten JA Decision: (1) Dismiss the applicant's notice of motion dated 5 July 2016. (2) Order that the applicant pay the Commission's costs of the motion. Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside orders – motion to vary orders after judgment delivered – declarations sought as to determinations by Independent Commission Against Corruption – relief not sought at trial or in notice of appeal – variation sought of order as to costs of appeal – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) COSTS – notice of motion to vary costs order – reduction sought on basis of success on one issue – no justification for awarding costs on issue basis Legislation Cited: Corporations Act 2001 (Cth), s 184 Crimes Act 1900 (NSW), s 192E Independent Commission Against Corruption Act 1988 (NSW), ss 8, 9, 74A Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [No 2] [2013] HCA 44; 89 ALJR 1159 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Texts Cited: Independent Commission Against Corruption, Report – Investigation into the Conduct of Ian Macdonald, Edward Obeid Snr, Moses Obeid and Others (July 2013) Category: Procedural and other rulings Parties: John Charles Atkinson (Appellant) Independent Commission Against Corruption (Respondent) Representation: Counsel: Mr D P Robinson SC (Appellant) Mr B Walker SC/Mr S Free/Ms Z Heger (Respondent) Solicitors: Hall & Wilcox (Appellant) Crown Solicitor for New South Wales (Respondent) File Number(s): 2014/319803 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2014] NSWSC 1018 Date of Decision: 29 July 2014 Before: McDougall J File Number(s): 2013/325031 [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.] Judgment 1. THE COURT: In February 2016, the Court heard four separate appeals from a judgment of McDougall J in the Common Law Division on 29 July 2014. [1] (The proceedings in the Division involved an application for judicial review of certain findings made by the Independent Commission Against Corruption in July 2013. [2] ) Each appeal was dismissed. 2. One of the appellants, John Charles Atkinson, now seeks a variation of the order made on 22 June 2016 dismissing his appeal. [3] He also seeks a variation of the order that he pay the Commission's costs in this Court. The orders sought included a declaration in the following terms: "Declare that the determination by the respondent that the appellant had engaged in corrupt conduct by authorising Mr Poole to arrange for the Obeids to be extracted from the Mount Penny joint venture through Coal & Minerals Group and Southeast Investments was wrong in law and was a nullity." 1. Consequentially, the order dismissing the appeal was sought to be varied to "otherwise dismiss the appeal" and the order for costs was sought to be reduced to payment of 50% of the Commission's costs. 2. The motion having been filed within 14 days of the entry of the orders, the Court has power to vary its orders pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). Whilst conceding the availability of the power to vary, the Commission opposed the exercise of the power. It did so on three broadly defined bases. First, as a matter of principle, the Commission submitted that the power should be exercised sparingly, because it constituted an exception to the principle of finality. 3. Secondly, although the power is properly available to correct errors or misapprehensions, whether of fact or law, on the part of the Court, it should only be exercised where the reason for its exercise "cannot be attributed solely to the neglect or default of the party seeking the rehearing". [4] In the present case, the Commission said the failure to seek the declaration now proposed was solely attributable to the failure of the applicant to seek it. 4. Mason CJ, in dissent in Autodesk, adopted a wider view than the majority as to the powers of the High Court to reopen a judgment where orders had not been entered. Without deciding the boundaries of the power, the Court said in Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [No 2]: [5] "[13] All members of the Court in Autodesk [No 2] accepted [6] that this Court may recall orders which it has made disposing of an appeal if those orders were made against a party who, without fault on the part of that person, has not had an opportunity to be heard as to why those orders should not be made. More particularly, it was accepted [7] that this Court may recall its orders if they were made on a ground which the person against whom the orders were made had no opportunity to argue. [8] … [15] … Mason CJ said [9] that the exercise of the jurisdiction to reopen should not be confined 'in a way that would inhibit [the Court's] capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment'. Nonetheless, Mason CJ emphasised [10] that the jurisdiction to reopen 'is not to be exercised for the purpose of re-agitating arguments already considered by the Court'. Rather, Mason CJ concluded [11] that '[w]hat must emerge ... is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing'." 1. It has not been submitted that the powers of this court are relevantly wider than those of the High Court in this regard. 2. Thirdly, the Commission argued that the applicant had failed to demonstrate that the declaration sought had practical utility. While it was correct to say that the Court (by a majority) rejected one basis on which the finding of corrupt conduct was made, the determination of the Commission that the applicant had engaged in corrupt conduct was supported on another basis and was therefore not to be set aside. The basis upon which it was supported, as well as the rejected basis, appear from the reasons given by the Court. 3. Each of these propositions should be assessed against the background of the orders sought before the primary judge and in this Court. It is necessary to commence by referring to the findings made by the Commission with respect to the applicant. In the summary in Chapter 1 of the ICAC Report, the following appeared: [12] "The Commission found that Mr Atkinson engaged in corrupt conduct by: (a) deliberately failing to disclose to the IBC the fact of the Obeid family involvement despite knowing that the IBC was concerned with any such involvement, and (b) authorising Mr Poole to arrange for the Obeids to be extracted from the Mount Penny joint venture through arrangements involving Coal & Minerals Group and Southeast Investments, with the intention, in each case, of deceiving relevant public officials or public authorities of the NSW Government as to the involvement of the Obeids in the Mount Penny tenement." 1. The reasoning underlying those findings was set out in Chapter 33 of the ICAC Report, by reference to the Commission's state of satisfaction as to what Mr Atkinson knew, his intentions and his purpose in taking the steps identified, and the reasoning to the conclusion that it constituted corrupt conduct. There was a finding that each of (a) and (b) was conduct that "could have adversely affected, either directly or indirectly, the exercise of official functions by any public official or public authority reviewing the creation of the Mount Penny tenement or the grant of exploration licences over the Mount Penny tenement … or the official functions of any public official or public authority considering whether to grant a mining lease over the Mount Penny tenement" [13] within the first limb of s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). 2. The second limb of s 8(2) required that the conduct was such as "could involve any of the following matters", including (e) – fraud and (s) – company violations. The relevant violation was identified as an offence under s 184(1) of the Corporations Act 2001 (Cth) because, as a director of White Energy Co Ltd, the applicant was intentionally dishonest and failed to discharge his duties as a director in good faith and in the best interests of the company. The purpose was to maintain the value of his holding in Cascade Coal Pty Ltd. 3. For the conduct to be corrupt conduct, the Commission was also required to find that it could constitute or involve a criminal offence, pursuant to s 9(1)(a) of the ICAC Act. For that purpose, the Commission was satisfied that there were grounds upon which, if the facts found by the Commission were to be proved by admissible evidence to the criminal standard, a court would find that the applicant had committed the offence of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and could involve an offence under s 184(1) of the Corporations Act. 4. The applicant brought proceedings in the Common Law Division jointly with two other parties, Messrs McGuigan and Poole. The primary relief sought was a declaration that "the determination … that each of the plaintiffs had engaged in corrupt conduct" was a nullity. Further declarations were sought to the effect that each of the relevant findings of the Commission, as to intention and the commission of offences under s 184(1) and s 192E(1)(b) were also "nullities". Whether declaratory relief would have been granted in respect of an intermediate step in reaching the conclusion that the applicant had engaged in corrupt conduct need not be determined: senior counsel appearing before McDougall J conceded that declaratory relief in respect of such matters was not necessary if the ultimate determination of the Commission were held to be a nullity. [14] It was not, but no further order was sought. 5. In his notice of appeal, the applicant sought a declaration that the determination of the Commission that he "had engaged in corrupt conduct" was a nullity and a declaration that "the findings of corrupt conduct" made against him were a nullity. (Various grounds were proposed for the separate declarations, the latter being based on a failure to accord procedural fairness.) 6. The trial judge held that the first limb of the conduct found to be corrupt conduct (failing to disclose the Obeid family involvement to the IBC) did not satisfy the requirements of the ICAC Act, because it could not have involved a violation of s 184(1) of the Corporations Act. Despite that favourable finding in relation to one limb of the conduct, the applicant did not seek a declaration from the primary judge to the effect that such conduct did not constitute corrupt conduct, nor did he seek such relief in this Court. The finding of this Court that there was no error by the Commission in its reliance on s 184(1) removed that potential basis of a declaration, but the fact that a specific declaration had not been sought in that regard was consistent with the failure to seek a specific declaration in relation to the second limb of corrupt conduct. Each, it may be inferred, reflected a deliberate forensic choice, either that such relief was unnecessary (as indicated to McDougall J), or that it was not properly available. 7. The Commission's submission that the applicant should not be permitted, after final judgment has been delivered, to seek to recast the relief sought in a different form should be accepted. This was not a case in which the possible outcomes were complex, nor had the opportunity to be heard in relation to final relief, once the outcome on specific issues was known, been sought. Rather, the possibility of specific declarations in relation to particular findings had been raised before the primary judge, but abandoned, and not revisited on the appeal. 8. To allow the applicant to seek a different form of declaration at this stage of the proceedings would have practical consequences. There would be at least a concern that the form of the declaration sought was not appropriate. For example, it is arguable that the only "determination" made by the Commission was the finding of corrupt conduct. Further, the proposed declaration is non-specific as to the nature of the error made by the Commission and, indeed, as to whether the error lay in the finding of corrupt conduct or the factual finding that the applicant was involved in authorising Mr Poole to arrange for the Obeids to be extracted from the joint venture. That point may have been important had the applicant sought relief in relation to the statement contained in the report, pursuant to s 74A(2) of the ICAC Act, that the Commission was of the opinion that consideration should be given to obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of Mr Atkinson for an offence under s 192E of the Crimes Act in relation to conduct identified as corrupt conduct. [15] No relief was sought in that regard. Again, that may have been for one or more reasons; a sufficient reason would have been that the relief was unnecessary because the judgment of this Court disclosed the conclusion with respect to the operation of s 192E. In other words, not only were the terms of the proposed declaration imprecise, but the specific finding made by this Court is already apparent from the reasons for judgment. 9. The applicant also sought a variation of the order that he pay the costs of the appeal, seeking a reduction of 50%. It appeared from his original submission that the reduction was dependent on success in having the substantive orders varied. In his reply, the reduction of costs seems to have been put in part on the basis that he was successful on one issue. There was no justification proffered for awarding costs by issue, not final outcome. The costs order should stand. 10. In the circumstances, the orders sought by the applicant in the notice of motion filed on 5 July 2016 should be refused. The applicant must pay the costs of the motion. 11. The Court makes the following orders: 1. Dismiss the applicant's notice of motion dated 5 July 2016. 2. Order that the applicant pay the Commission's costs of the motion. ********** Endnotes 1. Duncan v Independent Commission Against Corruption [2014] NSWSC 1018. 2. Independent Commission Against Corruption, Report – Investigation into the Conduct of Ian Macdonald, Edward Obeid Snr, Moses Obeid and Others (July 2013) (ICAC Report). 3. Duncan v Independent Commission Against Corruption [2016] NSWCA 143. 4. Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303 (Mason CJ). 5. [2013] HCA 44; 87 ALJR 1159 (footnotes as in original). 6. (1993) 176 CLR 300 at 303 per Mason CJ, 308 per Brennan J, 314 per Deane J, 317 per Dawson J, 322 per Gaudron J. 7. (1993) 176 CLR 300 at 303 per Mason CJ, 308 per Brennan J, 314 per Deane J, 317 per Dawson J, 322 per Gaudron J. 8. See, for example, Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18. 9. (1993) 176 CLR 300 at 302. 10. (1993) 176 CLR 300 at 303. 11. (1993) 176 CLR 300 at 303. 12. ICAC Report, p 10, col 2. 13. ICAC Report, p 151, col 2. 14. Tcpt, NSWSC, 24/06/14, p 81(26)-(40). 15. ICAC Report, p 156. Amendments 08 August 2016 - [18] Amending "it" to "he" in first line. 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: 08 August 2016