CAIRNS v ICAC [2007] NSWSC 1518

New South Wales Supreme Court

CITATION : CAIRNS v ICAC [2007] NSWSC 1518

HEARING DATE(S) : 24 September 2007

JUDGMENT DATE : 24 September 2007

JUDGMENT OF : Hulme J at 1

DECISION : I order that the proceedings be dismissed

PARTIES : Robert Cairns Commissioner of ICAC

FILE NUMBER(S) : SC 30073/07

COUNSEL : In person L Chapman

SOLICITORS : In person IV Knight

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

24 September 2007

30073/07

ROBERT CAIRNS v COMMISSIONER OF THE ICAC

JUDGMENT 1 HIS HONOUR: On 17 July last the plaintiff, Robert Cairns, filed a statement of claim in this court naming as the defendant Jerrold Cripps QC of ICAC. The application before me is a notice of motion by the defendant seeking that the proceedings be dismissed or that the statement of claim be struck out pursuant to a number of provisions of the Uniform Civil Procedure Rules. 2 No evidence was adduced in support of the application and although the defendant sought to tender two letters during the course of the hearing, they were objected to, not signed, and in those circumstances I declined to admit them. The matter is accordingly to be decided upon the basis of the terms of the statement of claim itself considered in the light of relevant statutory provisions and rules of pleading and general legal principle. 3 In an opening section of the statement of claim entitled "Relief is Claimed" the plaintiff has set out some ten paragraphs. The tenor of them is sufficiently disclosed for present purposes in the following extract, "(1) Relief is claimed from the victimisation and harassment visited on the plaintiff by the ICAC. (2) Victimisation in the form of the reversal of the burden of proof. (5) Victimisation in this form of prejudice. (9) Harassment in the form of unqualified assessment officer and unauthorised statements." 4 The form of those paragraphs is such that the Court could not grant relief in the terms outlined. Given that towards the end of the document the plaintiff has specified, under a heading "Orders are Sought", other matters, it is probably appropriate to regard the paragraphs under the heading "Relieve is Claimed" as just an outline of the nature of the plaintiff's complaints. Of course, such an outline expressed in the way it is, is not appropriate for inclusion in a statement of claim but particularly given the fact that the plaintiff is a litigant in person, I would not be disposed to dismiss or strike out the pleading just on the basis of what is technically surplusage. 5 The orders sought are in these terms, "(1) A fair hearing to be provided by the ICAC in person with the plaintiff and a competent assessor. (2) Notice to be taken of applicable standards and legislation. (3) Notice to be taken of procedural documentation applicable to the matter. (4) Notice to be taken of the plaintiff's standing in this matter. (5) Relevant evidential documentation requested by the plaintiff to be provided by RailCorp including (and two documents are specified). (6) Protection from further victimisation and harassment by RailCorp. Termination notice to be voided. (7) Dispensation from any further duty of care to the investigation and advancement of this matter. Duty of care owed by the plaintiff in standards and legislation and at common law deemed by the court to be fulfilled." 6 In the part of the statement of claim entitled "Pleadings and Particulars" the plaintiff has made a number of assertions. It is not necessary that I set all of these out verbatim or indeed in summary form, but some account of what is alleged is appropriate. 7 In paragraph 1 the plaintiff asserts that acting in capacities of a train driver and controller of plant and an authorised officer pursuant to the Protected Disclosures Act he reported to ICAC in respect of a number of matters which would seem to encompass RailCorp safety audits. In paragraph 2 it is said that further to that information, "Which goes to fraud and falsification of rail safety information fraud" and other matters, issues were raised with ICAC going to the procedural matters arising from the initial investigation undertaken by the RailCorp's internal audit. 8 In paragraph 3 he asserts that the ICAC assessor made a report after some five months and an assessment interview. In paragraph 4 it is asserted that, "The findings took on the report for RailCorp internal audit repeating and advocating false statements made by RailCorp internal audit and mischaracterising the issues as they were laid." 9 He then goes on in the following paragraph alleging that on the strength of the ICAC report RailCorp's internal audit refused to produce its own report until pressure of one form or another was brought to bear, ultimately replying after some fourteen months delay, "In a way to indicate collusion between internal audit and the ICAC report."

10 There is next express reference to a particular data chart and an assertion that that was the product of an inappropriate cut and, I think the word is, shut, process and an allegation of fraud in that connection. 11 The pleading alleges in paragraph 16 that further information was provided to ICAC which replied to the effect that while any further information from the plaintiff would be assessed, unless it contained substantially different information ICAC would not be corresponding further. The pleading asserts that the correspondence from ICAC also referred to previous replies. 12 It is then alleged that, "This statement confirms that the ICAC had taken on reply for RailCorp's internal audit as hearsay and had acted to facilitate that hearsay and false statements without the benefit of any factual information and had now effected an issue estoppel as a discretion enacted." (sic) 13 The pleading then alleges supply of further information to ICAC. There was reference to some response and some of the detail in documentation. An allegation in paragraph 38 was to the effect that, "Analysis of the text and conclusions shows that false statements are repeated, facts have been changed to suit and two false statements are directly related to the data chart." 14 In paragraphs 41 and 42 the plaintiff alleges that, "To meet the ICAC's unjustly imposed burden to show or tend to show fraud or falsification beyond the evidential standard required by the Supreme Court and the Evidence Act the plaintiff undertook to assemble all the required information... The material was compiled into a submission and covered by statutory declaration...forwarded to the ICAC and others." but that ICAC failed to respond. 15 In paragraph 43 the plaintiff alleges that, "Notice of action to be undertaken as a protected disclosures report was compiled with all the evidential material attached and forwarded to the ICAC with demands for the production of statements and documents." and that that notification went unanswered. 16 Paragraphs 46 and 47 of the statement of claim allege, "The burden to show or tend to show has long been met by the plaintiff" and 47, "The burden to show the contrary belongs to the ICAC." 17 In summary, the plaintiff's claim seems to me to amount to this. He lodged a complaint with ICAC. He asserts that in this connection he was acting under the Protected Disclosures Act and entitled to the rights conferred on whistleblowers by that Act; that while ICAC undertook some consideration of his complaint, that consideration was inadequate and in carrying out its response to his complaint, failed to deal with it properly, failed to notify him of its inclination to reject or not act on the complaint, reversed the onus of proof, failed to inform him about this and entered into some fraud or collusion with the RailCorp safety audit or some other component part of RailCorp. 18 It is that conduct by ICAC that the plaintiff seeks to have reviewed. Most of the prayers for relief set out in the statement of claim are not in a form which the court could order or deal or which the court could fairly address by some alternative form of order. Thus, no orders could be made for example to ICAC or otherwise: "Notice to be taken" of applicable standards and legislation. Prayers 5 and 6. Prayer 5 in seeking: "Relevant evidentiary documentation" seems to be directed to seeking relief against Railcorp as does prayer 6 seeking protection "from further victimisation and harassment by Railcorp". However, in so far as the orders sought include: "A fair hearing to be provided by the ICAC ... "it seems to me that the plaintiff has outlined sufficiently well what it is that he seeks. 19 It may be that the next three orders could also be beneficially construed so as to be encompassed by reasons given by the court in any decision to quash ICAC's decision or require it to embark upon some or all of its investigation again. 20 The defendant has mounted its attack upon the statement of claim on a number of further bases. Its first submission was that the pleading discloses no reasonable cause of action. It has not and the plaintiff could not show that ICAC was under any obligation to observe the rules of procedural fairness in its initial assessment of complaints or is under any obligation to grant the plaintiff a right to be heard. Hence it is submitted that the plaintiff has no right, interest or legitimate expectation so as to entitle him to have this Court interfere. 21 Other criticisms of the statement of claim are that it seeks an order directing either the production by the third party namely Railcorp of documents or alternatively an order directing ICAC to provide copies of third party documents. It is elementary that the court could not and would not order a person not a party to the proceedings to do anything. Thus, in so far as the prayers seem to seek that Railcorp do something that claim is doomed to failure. In so far as the pleading should be construed so as to seek an order that ICAC provide third party documents, the defendant points to s 111 of the ICAC Act which operates to prohibit ICAC from divulging information. Those criticisms of the pleading are established. I return however to the primary matter and that is whether the plaintiff can complain here of ICAC's conduct or, put another way, whether this Court has jurisdiction or power to control ICAC in the way which the plaintiff seeks. The plaintiff pointed to the reference in schedule 8 to the Uniform Civil Procedure Rules to the reference to the Independent Commission Against Corruption Act submitting that demonstrated the court's jurisdiction or power. However, schedule 8 is directed to allocating between various divisions of the court, matters which fall within the courts jurisdiction. The schedule does not itself confer any power to do anything. The court does have a function to perform pursuant to the Independent Commission Against Corruption Act. For example, s 100B envisages a review by the Supreme Court of certain matters. However, there is so far as I can see nothing in the ICAC Act which confers on the court a general supervisory jurisdiction over all that ICAC does. 22 If the plaintiff is to succeed it seems to me he must do so by reference to general principles which govern the entitlement or obligation of the Court to review the decisions of what I might loosely call administrative bodies. However, although I have used the term administrative bodies it is essential to remember that ICAC does not fall within the ordinary meaning or operation of that term. ICAC's functions are set out principally in s 13 of its Act. Principally, those functions are to investigate complaints which in ICAC's opinion imply or indicate corrupt conduct, to investigate any matter referred to it by both houses of Parliament, to communicate the results of any investigations and to give advice. Subsection 3 of the section states that the principal functions of the commission also include the power to make findings and form opinions on the basis of the results of its investigations. 23 S.17 is of significance. That provides the commission is not bound by the rules or practice of evidence and can inform itself in such manner as it considers appropriate and shall exercise its functions with as little formality and technicality as possible and in particular, shall accept written submissions as far as is possible. It has power to obtain information. Section 20 provides that the Commission may conduct an investigation on its own initiative or on a complaint or on a report or reference made to it. Subsection 5 of that section provides: "If the Commission decides to discontinue or not to commence an investigation of a complaint or report made to it the Commission must inform the plaintiff or officer who made the report in writing of its decision and the reasons for it." 24 As a body the principal function of which is to investigate and report the ICAC does not affect rights or interests in any direct way even if subsequent actions inspired by an ICAC report may lead to such rights or interests being affected. Given the limitations of its functions it is also not a body which, except in a very narrow way, can be said to create legitimate expectations so as to found a right to have its decisions reviewed by this Court. That conclusion is reinforced by the terms of s.20 ss.5, which requires the Commission to inform a complainant if it decides to discontinue or not commence an investigation. The necessary implication from the way that subsection is framed is that the commission is not required to inform a complainant that it is contemplating discontinuing or not commencing an investigation of a complaint. 25 Accordingly, there is no denial of natural justice. There has been no denial of natural justice of a form contemplated by the Act in the Commission making a decision adverse to a complainant without prior notice to him. Given that the actions of the Commission do not affect the rights or interests of a complainant it seems to me that accordingly that a complainant has under general principles of administrative law no standing to challenge the Commission's decisions. 26 The plaintiff sought comfort in the Protected Disclosures Act saying that if his primary submission should not be accepted his role under that Act took him out of the general run of the mill complainant to ICAC. However, while he referred me to some sections of the Protected Disclosures Act, none of them lead to the conclusion that a whistle blower - if I might use the term - acquires any greater right or entitlement than any other complainant so far as ICAC is concerned. Certainly, the Protected Disclosures Act does confer benefits of one form or another on a person who makes disclosures in the circumstances the act envisages but those protections are quite different from anything either envisaged by the ICAC Act or alternatively by way of rights incidental to the later statute. 27 In my view, the statement of claim in seeking to challenge a finding by ICAC in the respects complained of, is fundamentally deficient. 28 Before I leave the topic I should refer expressly to the terms of s 10 ss 2 of the Independent Commission Against Corruption Act. That subsection provides: "The commission may investigate a complaint or decide that a complaint need not be investigated". In subsection 3, it provides that: "The commission may discontinue an investigation of a complainant." The general nature of the functions entrusted to ICAC mean that inevitably it will be provided with a wide variety of complaints, some undoubtedly serious, but at the other end of the scale some which are likely to be frivolous and perhaps obviously frivolous however genuinely their authors may think the contrary. That is not to suggest that the plaintiff's complaint here falls into that category. The material before me, provides no basis for drawing any such conclusion but the possibility, indeed likelihood, that indeed some complaints are likely to be obviously frivolous is part of the background against which it is appropriate to consider the operation of the ICAC act. One could not imagine that Parliament intended that an obviously frivolous complaint had to be the subject of all the trappings of natural justice and the ability of any author of such a complaint to challenge ICAC's decisions to deal with that complaint in any particular way. Accordingly, the terms of sections 10, (ii) and (iii) tend to reinforce the conclusion at which I have arrived. 29 In my view the statement of claim should be dismissed or struck out given what I see as the plaintiff's lack of standing. I think the appropriate order is that the proceedings be dismissed. Mr Cairns I am afraid that that is the decision to which I have come.

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