Duncan v Independent Commission Against Corruption

[2016] NSWCA 143

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Independent Commission Against Corruption
4. › Findings of corrupt conduct
5. › Whether conduct could 'adversely affect' exercise of official functions by public official
6. › Causal connection to exercise of function
7. › Whether non-disclosure justified where information could reach public domain through alternative means
8. › Independent Commission Against Corruption Act 1988 (NSW), ss 8(2), 9(1)(a)
1. Administrative Law
2. › Judicial review
3. › Independent Commission Against Corruption
4. › Jurisdiction of Commission
5. › Whether power to make findings and form opinions extended beyond question of corrupt conduct
6. › Whether power extended to making recommendations
7. › Whether recommendations amenable to judicial review
8. › Independent Commission Against Corruption Act 1988 (NSW), s 13(3)
1. Administrative Law
2. › Judicial review
3. › Independent Commission Against Corruption
4. › Procedural fairness
5. › Investigative function of Commission
6. › Whether failure to cross-examine on elements of offences was procedurally unfair
7. › Whether procedural complaint raised for first time on judicial review faces heavy burden
1. Corporations
2. › Directors' duties
3. › Fiduciary duty
4. › Duty to act in good faith in best interests of company
5. › Whether affirmative duty to disclose information
6. › Whether removing oneself from position of conflict sufficient to fulfil duty
7. › Corporations Act 2001 (Cth), ss 181, 184(1)

Quick Take

Company directors should note that removing themselves from a position of conflict may not fully discharge their duties under s 184(1) of the Corporations Act; a positive duty of disclosure may arise, and deliberate failure to disclose in the face of such a duty may constitute 'intentionally dishonest' conduct.