Waterhouse v Independent Commission Against Corruption (No 2)

[2016] NSWCA 133

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Decision of investigative body not to investigate complaint
4. › Whether refusal to investigate unreasonable
5. › Stringency of unreasonableness test where decision involves binary choice
6. › Relevance of policy considerations and limited resources
7. › Independent Commission Against Corruption Act 1988 (NSW), ss 12, 13, 20
1. Administrative Law
2. › Judicial review
3. › Mandamus
4. › Whether supervisory jurisdiction extends to ordering investigative body to investigate
5. › Whether power coupled with duty to act in particular way
6. › Supreme Court Act 1970 (NSW), s 69
1. Administrative Law
2. › Apprehended bias
3. › Application that all judges of court recuse themselves
4. › Association with colleagues who had acted as counsel in prior litigation
5. › Whether fair-minded observer might think association might preclude judicial impartiality
1. Administrative Law
2. › Apprehended bias
3. › Allegation that audio recording of court proceedings tampered with
4. › Whether words allegedly deleted create reasonable apprehension of bias
5. › Whether alleged deletion gives rise to apprehension of bias

Quick Take

ICAC's broad discretion under s 20 of the ICAC Act to determine whether to investigate complaints is subject to only limited judicial review for unreasonableness, and the nature of a decision not to investigate (as opposed to a determination of facts) makes the unreasonableness ground particularly difficult to establish. Courts exercising supervisory jurisdiction cannot order ICAC to investigate. Associations between judges and colleagues who acted as counsel in prior litigation involving a party do not give rise to a reasonable apprehension of bias.