Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342

Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342

The interests of justice did not support reopening the consent orders because the orders were made pursuant to an unequivocal consensual resolution of the parties' dispute, the Commission did not allege mistake, misapprehension, lack of authority or any other basis to vitiate the agreement, the possibility of validating legislation was known when the agreement was made, the alleged anomalies were not sufficiently persuasive, and Mr Kinghorn was entitled to rely on the agreement and would suffer prejudice if the appeal were revived.

Jurisdiction
Australia
Judgment Date
06 November 2015
Procedural Posture
Notice of Motion to Set Aside Consent Orders / Court of Appeal Motion After Consent Orders Dismissing the Commission's Summons Seeking Leave to Appeal
Outcome
Notice of motion dismissed with costs.
Legal Topics
['setting Aside Consent Orders' 'uniform Civil Procedure Rules 2005 (nsw), R 36.16' 'retrospective Change in Law' 'finality of Litigation' 'judicial Review of Corrupt Conduct Findings']
['civil Procedure' 'administrative Law'] ['setting Aside Consent Orders' 'uniform Civil Procedure Rules 2005 (nsw), R 36.16' 'retrospective Change in Law' 'finality of Litigation' 'judicial Review of Corrupt Conduct Findings']

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Procedural Posture

Notice of Motion to Set Aside Consent Orders / Court of Appeal Motion After Consent Orders Dismissing the Commission's Summons Seeking Leave to Appeal

Legal Issues

  1. 1 ["Whether the Court should set aside consent orders entered on 1 May 2015 dismissing the Commission's summons seeking leave to appeal." 'Whether a retrospective statutory change in the law justified reopening consent orders under Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A).' 'Whether potential anomalous outcomes in related appeals justified reopening the consent orders.' 'Whether the consensual agreement underlying the orders should be disturbed despite no mistake or misapprehension being alleged.']

Ratio Decidendi

The interests of justice did not support reopening the consent orders because the orders were made pursuant to an unequivocal consensual resolution of the parties' dispute, the Commission did not allege mistake, misapprehension, lack of authority or any other basis to vitiate the agreement, the possibility of validating legislation was known when the agreement was made, the alleged anomalies were not sufficiently persuasive, and Mr Kinghorn was entitled to rely on the agreement and would suffer prejudice if the appeal were revived.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['Notice of motion filed by the applicant on 7 May 2015 dismissed with costs.']