Petroulias v Independent Commission Against Corruption (NSW) [2018] HCATrans 61 (26 March 2018)

Last Updated: 28 March 2018

[2018] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S67 of 2018

B e t w e e n -

NICK PETROULIAS

Plaintiff

and

INDEPENDENT COMMISSION AGAINST CORRUPTION (NSW)

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 26 MARCH 2018, AT 2.15 PM

Copyright in the High Court of Australia

MR N. PETROULIAS appeared in person.

MR S. ROBERTSON: May it please the Court, I appear for the defendant. (instructed by Crown Solicitor’s Office (NSW))

HER HONOUR: You are Mr Petroulias?

MR PETROULIAS: That is correct.

HER HONOUR: Ms Bakis is not appearing for you.

MR PETROULIAS: No.

MR ROBERTSON: May I just raise a preliminary matter? Your Honour will obviously need to consider whether Mr Petroulias can both simultaneously appear for himself in circumstances where he had the solicitor on the record. Certainly, rule 6.02.1 does not seem to contemplate that course and there is authority, at least in the Court of Appeal of the Supreme Court of New South Wales, suggesting that it is at least an undesirable course. Of course, your Honour, as part of the Court’s power to control its own processes might have a view with respect to that. I simply raise that for consideration at this point.

HER HONOUR: Yes, thank you, Mr Robertson. Mr Robertson, I understood from some of the material that has been filed in relation to the application that Ms Bakis, who is the solicitor for the plaintiff, is associated with – I do not know whether as employee or not – a firm of solicitors, Knightsbridge North Lawyers Pty Limited.

MR ROBERTSON: Yes.

HER HONOUR: As I understand it, that firm is itself the subject of the pending public inquiry into Operation Skyline to be conducted by the Independent Commission Against Corruption.

MR ROBERTSON: That is so - allegations connected with that firm of solicitors is at least relevant to the public inquiry, yes.

HER HONOUR: It had occurred to me that there may be some issues arising from the representation of the plaintiff by Ms Bakis, having regard to the background. In the circumstances, I am inclined to think a convenient course, for the present at least, is for me to permit Mr Petroulias to appear for himself so I can at least ascertain the substance of the present application for urgent interim relief.

MR ROBERTSON: Yes, I do not seek to be heard against that course.

HER HONOUR: Yes.

MR ROBERTSON: But the matter that your Honour raises is, with respect, very important to the present application. What seems to be the case is that Knightsbridge North Lawyers Pty Limited acts for a group of people, including itself, and including Mr Petroulias. That entity, as your Honour would have seen from the materials, commenced proceedings in the Common Law Division of the Supreme Court of New South Wales last week on substantially the same grounds as are sought to be brought in this Court, and those have been dismissed at first instance and an application for an injunction in aid of an application for leave to appeal was dismissed this morning.

HER HONOUR: Yes.

MR ROBERTSON: I simply raise that now because, in my respectful submission, these proceedings in this Court, in my submission, either are or get very close to an abuse of process, having regard to those factual matters, but I might expand on that later.

HER HONOUR: Yes, thank you, Mr Robertson.

MR PETROULIAS: With respect, there was an omission there. There was leave granted for an appeal which is to be heard on Thursday in the other matter.

HER HONOUR: Very well. Mr Petroulias, perhaps we might just start by you telling me what it is that I have before me today.

MR PETROULIAS: Okay. Your Honour, for the purpose of this interlocutory application I am looking for injunction. What I am focusing on are the two features which are the most repugnant in terms of Chapter III, which is - - -

HER HONOUR: Now, before we get to your submissions, Mr Petroulias, as I understand it, you seek to move on a summons seeking an interlocutory order restraining the defendant Commission from conducting a public inquiry - - -

MR PETROULIAS: Public inquiry.

HER HONOUR: - - - into allegations respecting property proposals made to the Awabakal Local Aboriginal Land Council.

MR PETROULIAS: That is correct.

HER HONOUR: I understand that public inquiry is into an investigation that is termed for ease of convenience, Operation Skyline. Is that so?

MR PETROULIAS: That is correct.

HER HONOUR: Yes, very well. Now, Mr Petroulias, the summons was filed by Knightsbridge North Lawyers, whom I will refer to for convenience as Knightsbridge.

MR PETROULIAS: Certainly.

HER HONOUR: An affidavit was filed by Ms Despina Bakis, a solicitor who purports to have carriage of the matter on your behalf. Do you read that affidavit?

MR ROBERTSON: I do, your Honour. I have a nine-paragraph affidavit, sworn on 23 March 2018, and there is no objection to the body of that affidavit.

HER HONOUR: No objection. Yes, very well. Is there any other material that you rely on in support of the relief that you claim?

MR PETROULIAS: Yes, there are two more affidavits that have been served.

HER HONOUR: What are those?

MR PETROULIAS: Can I hand them up, your Honour? Number 2 of Ms Bakis and number 3 of Ms Bakis.

HER HONOUR: Mr Robertson, have you seen these?

MR ROBERTSON: I may or may not have - perhaps if I can see them?

MR PETROULIAS: Yes.

HER HONOUR: Yes, by all means.

MR ROBERTSON: I had briefly this morning, and I do object to both of them being read.

HER HONOUR: I see. Very well. Mr Petroulias, the first affidavit appears to be an affidavit sworn on this day which attaches an affidavit of someone called Hussain Faraj.

MR PETROULIAS: That is correct. I was just – that was merely as a matter of form because I am not sure whether – because we have this – the form available, we were pressed for time, so that was merely to – I mean, if you accept it without the form for the High Court, if it is a different - - -

HER HONOUR: Mr Petroulias, what is the – objection is taken by Mr Robertson. What is the conceivable relevance of the affidavit of Mr Faraj to the relief that you claim before me today?

MR PETROULIAS: That is certainly the point because we are dealing with not having a statement of reasons, which means that it forces – and I will get to that point in a second – and it forces us to go beyond what might be relevant, and one of the interim relief measures that I am asking for is a statement of reasons so we can – when we do deal with the substantive matter it can be very targeted and direct, because this is not a way that we want to proceed.

HER HONOUR: Mr Petroulias - - -

MR PETROULIAS: Well, we have no choice - - -

HER HONOUR: Mr Petroulias, there is before me an application for interim relief - - -

MR PETROULIAS: That is correct.

HER HONOUR: - - - in relation to proceedings commenced by writ, seeking declaratory and constitutional writ relief. That represents, if you like, the four walls of what is before me.

MR PETROULIAS: That is correct.

HER HONOUR: So the last submission in which you foreshadowed some other form of relief we will put to one side for the sake of dealing efficiently with what I have before me. I think perhaps before I deal with the objections – no, very well – go on, what is it that you say is the relevance of Mr Faraj’s affidavit?

MR PETROULIAS: Okay. One of the issues is that it is the public hearing aspect that is taken issue with, not with the investigation; we are very happy that they investigate as much as they like for as long as they like on any subject. The issue is the public nature of it. One of the reasons for the public hearing - that we will get to under section 31 – so the last annexure is the evidence that I and others have given to an Upper House Senate Committee. There is also the knowledge, as a developer, of the advice given by Ms Bakis as to the – your Honour, the first exhibit, which is the - - -

HER HONOUR: Mr Petroulias, you need to appreciate that I know nothing about this matter beyond having perused the material that has been filed in support of the application. In light of something Mr Robertson said, I think perhaps a convenient course would be to deal with the question that Mr Robertson foreshadowed which relates to the circumstance that some proceedings have been commenced in the Common Law Division of the Supreme Court that are the subject of an appeal that is pending in the Court of Appeal of the Supreme Court of New South Wales.

MR PETROULIAS: This Thursday.

HER HONOUR: I understand there may be some contention that against that background at the least the bringing of the present proceedings before me is premature, to put it neutrally.

MR PETROULIAS: Your Honour, I say otherwise. This application is primarily focused on the constitutional issues; I am not touching on the other issues today at all. I am going to focus on the constitutional - - -

HER HONOUR: Mr Petroulias, there is no magic in referring to constitutional issues. The proceedings, as I gather it, before the Common Law Division of the Supreme Court have raised contentions very like the contentions in your writ.

MR PETROULIAS: Some of them are, yes, but they are not the ones that I am interested in today at all.

HER HONOUR: Yes.

MR PETROULIAS: I am not raising these today. Today I am focused just on two short aspects of the constitutional argument. Could I give your Honour a bit of an overview to make the point?

HER HONOUR: Yes, Mr Petroulias, but keep it brief.

MR PETROULIAS: Okay. So, it is two features that I say are repugnant to the Constitution and that is that the jurisdiction of ICAC over the judiciary in circumstances where it might have an interest and the public hearing. Those two components are unique to New South Wales. Every State has its own anti-corruption watchdog, that is fine, but those two offending features are unique to New South Wales. Now, so it is the public nature of the inquiry, not the ongoing investigation, not any compulsory

examinations that it has been conducting for now nine months. We have no objection. I have no objection to that.

Now, I trust that for the purposes of this interlocutory application I show no disrespect by attending myself for the substantive period - you know, people that are more appropriate to do justice to this like your Bret Walker and your David Bennett will be here to make that – to make that case, but for today I just wanted to present the arguable case so that there is a – the arguable case to make out for interlocutory injunction pending the proper resolution of this.

HER HONOUR: All right, before you proceed further I propose to deal with the objections to the affidavit evidence and to then deal with such evidence as the Commission may care to place before me on the application. Now, perhaps I might just get from Mr Robertson the basis of the objections to each of Ms Bakis’ second and third affidavits, if I can style them that way.

MR ROBERTSON: Principally, on the grounds of relevance. The affidavit that attaches an affidavit of Mr Faraj seems to be directed entirely with the position of Mr Faraj who, of course, is not a party to these proceedings.

HER HONOUR: Yes.

MR ROBERTSON: In respect of the larger affidavit of Ms Bakis which, at least in my copy, is 115 pages, I take a similar objection because that seems to be directed to Ms Bakis’ position and your Honour sees that in particular from paragraph 74 where she asserts that damage to her may be caused by a want of a grant of interim relief. She then goes on to deal with other clients.

HER HONOUR: Yes.

MR ROBERTSON: In addition to those objections I just indicated – this is a document that has only been received very recently. I have not had an opportunity to look at the substance of the document. If it is admitted at all I will need to address your Honour about aspects of the affidavit that may need to be the subject of suppression orders and the like but I will not trouble your Honour immediately with those matters.

MR PETROULIAS: Your Honour, could I address that? That demonstrates the uniqueness, the difference between these proceedings and other proceedings. The way the constitutional argument is presented, it is not about an individual case. It is - what I wanted to demonstrate, it is about the taking, for example, the House of Lords and the Sunday Times newspapers, it is about the effect on the judiciary. So, the direct relevance of particular persons talking about their circumstances will be demonstrated in that context. So this is very different from the proceedings that - - -

HER HONOUR: Is there some particular part of the affidavit of Mr Faraj that you say bears relevantly on the interim relief that you claim before me today?

MR PETROULIAS: Yes.

HER HONOUR: Would you direct me to that?

MR PETROULIAS: Okay. The matters that Operation Skyline seems to - are proposals – proposals, not actual sales, not transactions, but proposals for transactions. Very important reason, which you will see on page – on his first annexure in the advice by Knightsbridge to him - it explains that all – anything to do with the Aboriginal land up until the time that it is approved by the New South Wales Land Council after an approval process, which examines the transparency and commerciality, until that process is complete it is an absolute nullity, so there are no obligations. So he, as a developer, is demonstrating that he was aware of this, as have been others, and it was put to him clearly that any transaction he was about to enter into was a complete nullity.

HER HONOUR: Is this in support of your contention, particularised in the grounds for the final relief that you claim, that the effect of the Aboriginal Land Rights Act 1983 is such that certain agreements, unless complying with requirements of that Act, are rendered void under the Act?

MR PETROULIAS: Yes.

HER HONOUR: Yes. Well, is that a point that you can make by directing attention to the provisions of the Act?

MR PETROULIAS: What is important here is his knowledge of it, that it was brought to his attention as a developer, and that he knew - - -

HER HONOUR: How is that conceivably relevant - - -

MR PETROULIAS: It is conceivably relevant insofar as if a developer did not know or was tricked into handing over some money or was somehow unaware of the law, then you could argue that there is some dishonesty. But where, for example, the developer knows - - -

HER HONOUR: Mr Petroulias, if I can interrupt you for a moment so that we can get back on course.

MR PETROULIAS: Yes, certainly.

HER HONOUR: Am I right in understanding that underlying your proposed constitutional challenge, both to the ICAC Act in its entirety and to the decision made by the Commission pursuant to section 31 of that Act to conduct a public hearing into Operation Skyline, is the contention that some proceedings currently pending in the Supreme Court of New South Wales in its Equity Division raise issues that are likely to be touched upon in the public hearing of Operation Skyline?

MR PETROULIAS: Yes.

HER HONOUR: That is, as it were, at the heart of the constitutional challenge. Is that right?

MR PETROULIAS: Certainly.

HER HONOUR: Now, Mr Petroulias, it is necessary to understand that it is of no relevance to the present application for interim relief whether there is merit or an absence of merit to any of the proceedings before the Equity Division of the Supreme Court of New South Wales or, for that matter, merit to the allegations that underlie Operation Skyline. You understand that?

MR PETROULIAS: I thought you would at least be interested in the argument that there is a complete lack of merit, it is a misconstruction of the Aboriginal Land Rights Act. The whole operation - - -

HER HONOUR: The question of whether the Commission is to be restrained from the conduct of a public inquiry which has been directed to take place under section 31 of the Commission’s Act. Now, that issue is entirely independent of the merits or otherwise of the subject matter of the Commission’s investigation or, for that matter, the merits or otherwise of whatever these proceedings are before the Equity Division. Now - - -

MR PETROULIAS: Only insofar as trying to persuade your Honour of the following – that there is a total misconstruction of the Aboriginal Land Rights Act; if you work through it, it is investigating complete nullities that have and cannot have an effect. This affidavit is supposed to demonstrate that, from the point of view of a developer, he was aware of that, so that there can be no incentive for any Aboriginal board member to be corrupt because they have no authority, they have no power, they can do nothing but push it up the line to someone else to approve.

And the evidence before the Legislative Council was there to demonstrate that he embraced the whole idea and wanted, as we all did, to approach the Government for mass settlement of a lot of these claims. So that is what this affidavit is supposed to do.

HER HONOUR: Do I understand that Ms Bakis’ affidavit – I am sorry, Ms Bakis’ third affidavit, that is the affidavit comprising 77 paragraphs, sworn on today’s date, and which on the face of it appears to relate to her situation, you rely on that for the same reasons as you have outlined in relation to the relevance of Mr Faraj’s affidavit; is that so?

MR PETROULIAS: This one is a little bit different, your Honour. This one is - - -

HER HONOUR: In what respect?

MR PETROULIAS: Okay. This one is supposed to do a couple of things. This is to demonstrate, right at the back, Ms Bakis seeks, before she left working for the Land Council in September 2016, sought a search warrant from the Registrar to preserve documents that were being destroyed by the then Land Council CEO. The object of that to demonstrate is that what was fed to the Commission is partial documentation that was destroyed - - -

HER HONOUR: Mr Petroulias, whether partial documentation was supplied to the Commission or not does not appear on the face of anything filed in relation to the final relief that you claim, or the interim relief, to have any relevance whatsoever.

MR PETROULIAS: It goes to the question of bias, your Honour.

HER HONOUR: What is the question of bias to do with anything, Mr Petroulias? You understand that proceedings in Court attract a privilege - - -

MR PETROULIAS: Yes.

HER HONOUR: - - - and it is conventional to be careful about the submissions that one makes and to ensure that they have a proper basis - - -

MR PETROULIAS: Absolutely.

HER HONOUR: - - - before advancing assertions of that character.

MR PETROULIAS: That is correct.

HER HONOUR: Very well.

MR PETROULIAS: What Ms Bakis is trying to demonstrate is that she attended before a compulsory - - -

MR ROBERTSON: I need to intervene at this point.

HER HONOUR: Yes.

MR ROBERTSON: As your Honour might appreciate, section 111 and following may cause us some difficulties if we go much further.

HER HONOUR: Yes. I think you are about to trespass on matters that may be protected under the ICAC Act, is Mr Robertson’s concern.

MR PETROULIAS: Certainly, and that is the problem, that the Court should not be deprived of all necessary evidence it needs to decide the matter. We have two solutions to that. One is - - -

HER HONOUR: Mr Petroulias, you come today to seek an interim injunction, restraining the Commission from holding a public hearing.

MR PETROULIAS: That is correct.

HER HONOUR: You do so, as I apprehend it, on the basis that for the ICAC to hold the public hearing might infringe, might trench upon the Supreme Court of New South Wales’ capacity to deal with the proceedings that are before it arising out of some common factual substratum involving the Land Council. In that connection, there is no occasion for you to seek to take the Court to material that is the subject of the secrecy provisions, in particular, section 111 of the ICAC Act. Do you understand that?

MR PETROULIAS: Certainly, your Honour. Maybe you are correct. Maybe what I should do is withdraw this from this point of view, make the point on the constitutional point. If it becomes relevant then agitate it at that point in time, if you are happy with that.

HER HONOUR: Well, Mr Petroulias, I propose to reject each of Ms Bakis’ affidavits handed up in the folder, that is the affidavits that I have referred to as affidavits – her second and third affidavits, do you understand?

MR PETROULIAS: That is correct.

HER HONOUR: Yes. Now, that is the evidence that you place before me in support of the application?

MR PETROULIAS: And you have the - - -

HER HONOUR: That is the first affidavit of Ms Bakis.

MR PETROULIAS: Yes.

HER HONOUR: Is there any other material that you place before me in support of the application?

MR PETROULIAS: No, that is all.

HER HONOUR: Yes, very well. Mr Robertson.

MR ROBERTSON: In fairness to the plaintiff, there is an exhibit to the first of the affidavits. I am not sure whether he intends to tender that. If he does, there is a short objection but I simply draw that to attention. Exhibit D - - -

HER HONOUR: To the first of the affidavits. Would you just bear with me?

MR ROBERTSON: It is described as exhibit DB1.

HER HONOUR: Just bear with me.

MR ROBERTSON: If it assists, it is approximately and inch or so thick.

HER HONOUR: Mr Robertson, I have the nine-paragraph affidavit sworn by Ms Bakis, dated 23 March 2018, and to that is attached an exhibit styled DB2.

MR ROBERTSON: Yes. I also have a separate folder, styled DB1, which seemingly purports to be an exhibit to that affidavit to which your Honour referred. Whether or not your Honour has it, I do not know. I am told I have a spare copy of that, if that will assist the Court.

HER HONOUR: It is the subject of objection, is it, DB1?

MR ROBERTSON: In part, but not in whole. In large part it contains the pleadings in the Equity Division proceedings to which reference has already been made.

HER HONOUR: I see.

MR ROBERTSON: It has some other documents as well.

HER HONOUR: Very well. Do you seek to place the exhibit DB1 before me on this application, Mr Petroulias?

MR PETROULIAS: Yes, your Honour. I did not think there was any objection.

HER HONOUR: Yes, very well. Perhaps if I could have a copy of it, thank you, Mr Robertson, and perhaps if you could indicate the matters that are the subject of objection.

MR ROBERTSON: I have left the folder open on a particular page because it creates another obscurity.

HER HONOUR: Thank you.

MR ROBERTSON: Your Honour there sees what seems to be yet another affidavit. Whether or not that is intended to be read or not, I am not sure, but it was in the version that I had.

HER HONOUR: Yes. Do you have that affidavit, Mr Petroulias?

MR PETROULIAS: That is correct. That is for the interlocutory relief. Yes.

HER HONOUR: This is yet another affidavit by Ms Bakis, comprising some, I will say, at least 19 paragraphs since - - -

MR ROBERTSON: There are at least two paragraph 19s.

HER HONOUR: Yes, and then a further material under the heading “The Third version of the investigation is framed as”, which is either part of the second paragraph 19 or an unnumbered paragraph. In any event, I think I have sufficiently described the document. Do you seek to read that affidavit?

MR PETROULIAS: Yes, your Honour.

HER HONOUR: Is there any objection to it?

MR ROBERTSON: There is. If your Honour goes to the first of the paragraph 19s, subparagraph (b), subparagraph ii, your Honour will note what appears there and your Honour will note what issue was raised by that.

HER HONOUR: Yes.

MR ROBERTSON: If it assists, I can indicate that this looks very similar to an affidavit that was read in the Common Law Division in the Knightsbridge North proceedings, and that particular sentence was not read by reason of the objection - - -

MR PETROULIAS: I have no problem with that.

HER HONOUR: So you do not read the first paragraph 19(b)ii?

MR ROBERTSON: Yes.

HER HONOUR: Yes, very well. I will note that is not read. Any other - - -

MR ROBERTSON: In the same paragraph - - -

MR PETROULIAS: It is the same thing, your Honour.

MR ROBERTSON: Towards the end of the first paragraph 19, there is a paragraph, either Roman two or double “i”, and a further subparagraph Roman two, which your Honour sees is very similar to that to which I have taken objection.

HER HONOUR: Yes. Again, Mr Petroulias, do I take it that is not read?

MR PETROULIAS: No, your Honour. Yes, agreed. I am happy with that.

HER HONOUR: Yes.

MR ROBERTSON: Obviously, there are matters that are in the nature of submissions that I will not trouble your Honour in identifying those separately.

HER HONOUR: All right. Is there anything further that is the subject of objection in DB1?

MR ROBERTSON: There is. Just at the very end of the bundle. If your Honour goes to hand-paginated page number 396. Your Honour will there see an email chain. Can I draw your Honour’s attention to page 398, hand-paginated at the bottom of the page. Your Honour will note, in effect, the same difficulty that I have been drawing to the Court’s attention on a number of occasions. That might be most conveniently dealt with by pages 396 through to page 405 simply being excluded from the tender.

HER HONOUR: Yes.

MR ROBERTSON: It seems to be directed, if your Honour sees page 396, that material seems to be directed to numbered paragraph 2:

The Commission is aware of the current civil litigation.

I am content to make that concession if that then resolves the purpose for that particular email chain.

HER HONOUR: Does that resolve - - -

MR PETROULIAS: Yes, that is fine.

HER HONOUR: Yes, very well then. Pages 396 to 405 of exhibit DB1 are not read or do not form part of the exhibit.

MR ROBERTSON: May it please the Court.

HER HONOUR: Yes. Mr Robertson.

MR ROBERTSON: Your Honour should have two affidavits of Megan Frances Caristo, sworn today, and I read both of those affidavits.

HER HONOUR: Yes. Is there any objection to any part of either of those affidavits, Mr Petroulias?

MR PETROULIAS: Not from me, no.

HER HONOUR: Yes, very well. Yes, you may take those as read, Mr Robertson.

MR ROBERTSON: May it please the Court.

HER HONOUR: Mr Petroulias, can I raise with you, by reference to the first of Ms Caristo’s affidavits, exhibit MFC4 is the summons for judicial review filed in the Supreme Court of New South Wales and which, as I understand it, came on for hearing before Justice Fagan, who dismissed the summons, and that dismissal forms the subject of the pending application for leave to appeal, which is to be heard on - - -

MR PETROULIAS: Leave was granted. It is being heard on Thursday.

HER HONOUR: I think there may be some issue between you and the Commission about the precise orders that were made.

MR ROBERTSON: I can assist if your Honour would be assisted.

HER HONOUR: Yes.

MR ROBERTSON: It is for a concurrent hearing on Thursday of this week; that is to say, the question of leave and the substantive matter to be dealt with together.

HER HONOUR: Yes, very well. Now, it is noted in Ms Caristo’s affidavit that there is a similarity between the judicial review proceedings brought by Knightsbridge in terms of the orders sought and the contentions advanced and those in your summons. The matter that I am raising with you, Mr Petroulias, in circumstances where it appears that the Commission does not propose to call you as a witness at a public hearing before the hearing of the appeal in the Court of Appeal of New South Wales of a challenge by Knightsbridge, raising very much the issues that you agitate in your summons in this Court, a question might arise as to whether an appropriate exercise of the discretion in this Court is to hear and determine your application for interim relief. Do you understand?

MR PETROULIAS: Yes, I do, your Honour.

HER HONOUR: Am I right in my understanding, Mr Robertson, that that is the submission that you foreshadowed a little earlier?

MR ROBERTSON: Yes, it is.

HER HONOUR: Yes, very well. Mr Petroulias, what do you say to that?

MR PETROULIAS: Very simply, that is one of the points of the affidavit that you returned, which I said to you when it becomes relevant to raise again, is the nature of the questions that were conducted still bring other people. Did ABC disclose this to you? Did you know the reputational effect nevertheless is impacted? Whether I am in the witness box or not or someone is asked questions about me, the reputational damage is still done, the same with every other player – every other participant. Simply because we are further down the list does not change the reputational damage to those people, nor does it negate the prejudicial effect on the proceedings simply because we are further down the list than somebody else.

HER HONOUR: Mr Petroulias, I am not sure that I understand this. You bring proceedings - - -

MR PETROULIAS: That is correct.

HER HONOUR: You seek to challenge the validity of the ICAC Act. At its most ambitious, your pleading seeks to have declared invalid that Act in its entirety, based, as I understand it, upon a contention that the holding of a public inquiry into Operation Skyline might in some way influence the judge of the Equity Division of the New South Wales Supreme Court in any determination that he makes - - -

MR PETROULIAS: Not at all, your Honour.

HER HONOUR: That is no part of your case?

MR PETROULIAS: No part of my case. I am not challenging the competence or even arguing contempt. The point being my argument is totally different from the position of contempt. Mine goes to the separation of powers and the implications that follow from the separation of powers.

HER HONOUR: Mr Petroulias, as a courtesy, I wonder if you would stand when you are addressing the Court.

MR PETROULIAS: Sorry, your Honour. So, totally different rubric. There is a separation of powers. There is an expectation of implied rights that it will be determined by - - -

HER HONOUR: Mr Petroulias, you are saying a lot of catchphrases - - -

MR PETROULIAS: Yes.

HER HONOUR: - - - but none of them come close to explaining what the basis for your contention that the entire Independent Commission Against Corruption Act 1988 is invalid by reason of the holding of a public hearing into Operation Skyline.

MR PETROULIAS: Not by reason of it. It has never been presented in a way that is tangential to a proceeding before, so the issue – it raises itself now. It is not because of the proceeding; it simply offends the separation of powers. I would like to make that argument if you will let me.

HER HONOUR: What offends the separation of powers?

MR PETROULIAS: That there can be a body which can conduct a public inquiry over a matter which has been seized by the court, make findings, affect the witness, as well as – remember, the issue is not – this is the point of distinction with contempt. The issue is not the particular proceedings and whether the particular – it is contemptuous and whether it affects the – it is the principle of having witnesses and a process where - can I properly make the argument?

HER HONOUR: Just before you embark on it any further, do I understand that it is an argument that is prompted by the proceedings presently before the Equity Division of the New South Wales Supreme Court involving Knightsbridge and another entity against the Land Council and related proceedings?

MR PETROULIAS: It is prompted by it, yes, insofar as it is the occasion that gives rise to the offence to bring proceedings.

HER HONOUR: Can I inquire what your special interest entitling you to have standing to challenge the validity of the ICAC Act is in relation to those proceedings?

MR PETROULIAS: In relation to those proceedings or in relation to - - -

HER HONOUR: Let us just ask what your special interest is, Mr Petroulias.

MR PETROULIAS: In those proceedings I am factually a cause of action, where my role, my existence, my simple existence is a feature of negligence somehow by Knightsbridge. I am very much the key witness in all of these matters to - - -

HER HONOUR: Mr Petroulias, you are not a party to either of the proceedings pending in the Equity Division of the Supreme Court.

MR PETROULIAS: That is right, your Honour.

HER HONOUR: Do you have some other basis for asserting a special interest to have the Court pass on the validity of the ICAC Act?

MR PETROULIAS: Yes, because I am a witness hauled before ICAC and very much the de facto target.

HER HONOUR: Mr Petroulias, I have no evidence of that.

MR PETROULIAS: Okay. I am a witness.

HER HONOUR: You say that your special interest is in the circumstance that you have been summonsed to appear before the public hearing.

MR PETROULIAS: That is the first.

HER HONOUR: Yes.

MR PETROULIAS: So that gives me sufficient interest, the fact that I am within the existing authorities, which is, on my submissions, paragraph 1. In addition to that, my name does appear all over the pleadings, if we need to get to them.

HER HONOUR: Mr Petroulias, are you able to identify where the relief that you claim in these proceedings relevantly differs from that which is the subject of the pending appeal in the Court of Appeal?

MR PETROULIAS: The constitutional argument, the separation of powers, the implied right to have matters determined by a court according to apparent impartiality without distraction. I will take you through the authorities when I get a chance – if we get a chance. That was not brought up at all in the other proceedings. Mine is from the perspective of the system, not the perspective of an individual case.

HER HONOUR: I might perhaps just hear from Mr Robertson at this point. Mr Robertson, just on this preliminary question, I think you opened suggesting that it might constitute an abuse to have brought the present proceedings in circumstances in which claims for like relief are presently before the Supreme Court of New South Wales, albeit brought in the name of this plaintiff’s solicitor but in relation to what would seem to be the same factual matrix.

MR ROBERTSON: Yes.

HER HONOUR: I do not know whether you press that submission or what - - -

MR ROBERTSON: I do press it. Can I expand on it in this way?

HER HONOUR: Yes.

MR ROBERTSON: If your Honour has exhibit DB1, which is the larger of the folders, and if your Honour goes to page 4, using the hand pagination towards the bottom, your Honour there sees a letter from Knightsbridge North Lawyers, signed by Ms Bakis.

HER HONOUR: Yes, I have it.

MR ROBERTSON: Your Honour sees there a letter of Knightsbridge North Lawyers, signed by Ms Bakis on behalf of a group of people, including Mr Petroulias.

HER HONOUR: Yes.

MR ROBERTSON: So what appears to have happened is that Knightsbridge North Lawyers Proprietary Limited is the first cab off the rank, as it were, put various arguments to the Common Law Division of the Supreme Court of New South Wales, lost, sought leave to appeal and then an injunction in aid of that application for leave to appeal this morning, and lost. The next cab off the rank in the same group, as it were, then comes to this Court late on Friday afternoon, in circumstances where knowledge of the public inquiry was known by 6 March, and raises very similar, although, I accept, slightly different proceedings.

In my respectful submission, that gets very close to some kind of a class abuse of process where it is apparent, including from the affidavits that your Honour has not admitted into evidence, that at least part of the purpose of the proceedings in this Court seems to be to vindicate the position not just of Mr Petroulias but of a group of people of whom Ms Bakis appears to be one and of whom others appear to be members of the group as well. That is how I frame the either abuse of process or something close to abuse of process in circumstances where there is something in the nature of parallel proceedings that are pending in the Supreme Court of New South Wales.

HER HONOUR: And you say in light of that that the appropriate course is to decline to entertain the application for interim relief at this time?

MR ROBERTSON: Yes, or in the alternative, if your Honour entertains it, your Honour would dismiss it, noting how weak the application is, noting that there was delay that is unexplained. Your Honour sees from the material that Mr Petroulias at least knew of the investigation by 1 February, when he produced documents to the Commission. He knew of the public inquiry by 6 March. The first step that he took by way of proceedings in this Court was on Friday afternoon, the day before the public inquiry was due to commence. So that, in my submission, is a strong discretionary factor against the grant of any relief. Also importantly, as has fallen from your Honour, is the potential question of standing. True it is that - - -

MR PETROULIAS: Can I correct some factual errors here?

HER HONOUR: One moment. I will hear from you in a moment, Mr Petroulias. Yes.

MR ROBERTSON: True it is that, in what I will call the Knightsbridge proceedings, what might be called a capital C constitutional point was not raised; a lower case capital C point was raised. But to the extent the new point is sought to be raised in this Court, it is very difficult to see how Mr Petroulias has any standing in circumstances where the very

proceedings – let us say, the Equity Division proceedings – which are said to enliven that additional point are proceedings to which he is not a party.

In the face of the weakness of the proceedings in this Court, in the face of the evidential background that your Honour has seen, in the face of the delay that is unexplained on the evidence, in the face of the obvious inconvenience to the Commission and the public inquiry - your Honour has seen from the evidence something like 32 witness summonses have been issued, arrangements have been made for people to travel down from Newcastle, a block of about three weeks has been set aside, with counsel assisting from the independent Bar, as part of an overall program of inquiries, including one that is due to commence in about four weeks’ time.

In the face of all of those matters, your Honour would simply dismiss the summons, remit what is left of the proceedings to the Supreme Court of New South Wales and then, to the extent that there is some point that might not be determined by the Court of Appeal’s consideration on Thursday that Mr Petroulias wishes to raise, that should be raised in the ordinary fashion and this Court should not be distracted from its ordinary functions by something which is really in the nature of a trial point with factual matters involved that ordinarily is commenced in the original jurisdiction of the court would be remitted to some other court to deal with.

MR PETROULIAS: Your Honour, that is all factually incorrect. On 1 February I gave no evidence to anybody about anything.

HER HONOUR: It is not suggested that you gave evidence. The point - - -

MR PETROULIAS: He said I produced documents. I did not do any such thing. I do not know where he gets that from.

HER HONOUR: Whether you produced documents or not, I think the evidence at present stands that on 6 March of this year you were summonsed - - -

MR PETROULIAS: Yes, that is correct.

HER HONOUR: - - - to give evidence at the public hearing - - -

MR PETROULIAS: That is correct.

HER HONOUR: - - - that had been announced on that day.

MR PETROULIAS: On that day.

HER HONOUR: And the public hearing was announced to commence at 10 am today.

MR PETROULIAS: That is correct.

HER HONOUR: On Friday of last week – that is, one working day before the commencement of the public hearing – you brought proceedings in this Court seeking, amongst other things, to restrain the public hearing.

MR PETROULIAS: That is correct.

HER HONOUR: And the point taken against you, Mr Petroulias, is that that delay alone in the exercise of discretion would be a powerful factor against granting you the relief claimed.

MR PETROULIAS: Okay. Can we properly present to your Honour? I attended a private hearing, as did many others, on Friday the first in relation to a different version of this investigation – a more serious version of this investigation. That was the Friday. Then comes Monday. On Tuesday morning we are served. Okay. On the Monday intervening, Ms Bakis is given another summons to produce her original files. She produces her original files. Then we are told “When can we have the files back?” because this summons is a different version to the summons that got her to present her original files – “Can we have our files back?” “We are looking at them.” Eventually, we are given a USB stick, so we have about a week to prepare. About a week to prepare, your Honour, for this sort of matter cannot be un - reasonable. Just the body of reading would take a week, let alone presenting it in some format. So a week is not - - -

HER HONOUR: Mr Petroulias, I go back to the fact that the announcement of the public inquiry was on 6 March, and on that date you received a summons to give evidence before it.

MR PETROULIAS: That is correct.

HER HONOUR: And the first action you took in this Court was on the day before the public inquiry was due to commence.

MR PETROULIAS: Yes. So we lost a week and a half because we did not know what the position was with the legal files, which were needed to rely on to get advice. So that delay – one week is not, your Honour – is by no means - - -

HER HONOUR: I hear what you say, yes.

MR PETROULIAS: Okay. On the question of – each individual is entitled to run their own case as they see it. Simply because someone else chooses to run a different case in a different court does not take away my right to run this case in this Court.

HER HONOUR: Mr Petroulias, there are some unusual features about the matter. These proceedings appear to have been commenced on your behalf by Ms Bakis acting for you - - -

MR PETROULIAS: That is correct.

HER HONOUR: - - - and amongst the material in evidence is Ms Bakis’ letter to the Commission, requesting reasons for the decision to conduct a public inquiry, in which you are nominated, among other persons, as part of a group of individuals - - -

MR PETROULIAS: Who have an interest in it, yes.

HER HONOUR: - - - including Ms Bakis - - -

MR PETROULIAS: That is correct.

HER HONOUR: - - - who have an interest in the question of the reasons for the holding of the public hearing.

MR PETROULIAS: Still do.

HER HONOUR: It is against that background that the Commission invites this Court to consider that when Knightsbridge commenced proceedings in the Supreme Court, raising substantially the same challenges as you seek to do in this Court, and that application was dismissed after a hearing before Justice Fagan, it looks to be colourable that you commenced proceedings claiming the same relief in this Court. That, in essence, is what is put against you.

MR PETROULIAS: Okay, but you will also see in the same letters that we raise the constitutional argument amongst them. Okay, the constitutional argument may not have been as attractive to one party as it is to myself, that does not take away my right to run it simply because someone else wants to run a different argument. We are entitled to run different arguments. I mean, I am not bound by a group. I have my own views, I have my own rights. So do the others.

HER HONOUR: The right that you claim to challenge the validity of the ICAC Act is based on what special interest that you have over any other member of the public?

MR PETROULIAS: That I am named in a summons to be hauled before a public inquiry and the media and that is – I am entitled to challenge it under any mechanism that I can and I chose the constitutional one. My rubric of analysis has got nothing to do with her rubric of analysis.

HER HONOUR: All right, Mr Petroulias, now, is there any – I think you prepared these submissions that were filed in support of - - -

MR PETROULIAS: I did, your Honour, yes.

HER HONOUR: - - - the relief claimed. Do you wish to add anything to those?

MR PETROULIAS: Yes, I do, your Honour. One is the – there is a few points – the first is this issue of reasons for decision.

HER HONOUR: What has reasons for decision to do with anything that is before me, Mr Petroulias?

MR PETROULIAS: That in the absence – well, for the substantive hearing of the matter, I would like reasons for decisions and they are compellable from a body like ICAC. They were touched on - okay, sorry – you seem distracted - - -

HER HONOUR: Did you say something?

MR PETROULIAS: Sorry, I thought you were distracted by something, sorry, your Honour.

HER HONOUR: Mr Petroulias, it would be preferable if you did not make remarks of that character on the - - -

MR PETROULIAS: I am sorry, I mean no disrespect, sorry, sorry.

HER HONOUR: Yes, all right. Well, now, Mr Petroulias, I wonder if I can direct your attention to the provisions of the ICAC Act? Section 6(5) of that Act provides that:

A decision of the Commission –

to conduct a public inquiry under section 31:

is presumed to have been duly authorised under that subsection unless the contrary is –

proved. The evidence before me is that a decision has been made by the Commission to conduct a public inquiry. I understand that is at the heart of your constitutional challenge. Can we now direct attention to the basis of that challenge as distinct from the reasons for the decision to hold the public inquiry?

MR PETROULIAS: Okay. There are some preliminary points I wanted to make about the Hardiman application – can I do that later?

HER HONOUR: About what?

MR PETROULIAS: The Hardiman application insofar as ICAC is not the proper contradictor, it should be the New South Wales Attorney-General under this Court’s decision in Hardiman, particularly pages 35 to 36, because they will have a continuing role to play, whether it is redefining the inquiry, making other decisions relating to the inquiry, that this Court says that it endangers the impartiality. So, according to this Court’s guidelines, they should not be making any substantive submissions. They have taken an active role already. We did notify them by email that we would be making a Hardiman application. So, can I just leave it at that?

HER HONOUR: You conduct your application as you care.

MR PETROULIAS: That is the application, your Honour, that they should not be the proper contradictor, they should not be here. If they are here, that they should make - - -

HER HONOUR: I could stand the matter over and allow ICAC to consider its position but that would hardly seem to achieve the result that you seek, does it? You are seeking urgent relief in relation to a hearing that is due to commence at 10 am tomorrow, Mr Petroulias. What do you propose we do? It is now 20 past three.

MR PETROULIAS: This Court suggested that the appropriate conduct was simply for ICAC to submit to the decision of the Court, not to take an active role in the process. They have taken a very active role so far.

HER HONOUR: Mr Petroulias, I am, at the moment, concerned only with the grant of interim relief. This has been brought on by an application filed on Friday, 23 March, it is returnable before me urgently today and the relief that you claim is to restrain the ICAC from commencing its public hearing tomorrow at 10 am. In the circumstances, I think the best course may be to proceed with such substantive arguments as you may wish to make.

MR PETROULIAS: Certainly, your Honour. Now, when we analyse the ICAC Act, as this Court said in the Cunneen decision, it is paragraph 31, it is looking at all the provisions in their unity. Section 12A looks at serious and systemic corruption because I want to see what is it that is being put.

HER HONOUR: Well, am I right in understanding that aspect of your challenge depends upon the provisions of the Aboriginal Land Rights Act which, in certain circumstances, operate to void agreements that have not been the subject of approval in accordance with the Act, is that right?

MR PETROULIAS: That is correct.

HER HONOUR: So, the contention is it can hardly be conduct adversely affecting or conduct that could adversely affect either directly or indirectly the honest or impartial exercise of official functions by any public official, in this case, a member of the board of a land council, if those – if that conduct is directed towards proposals for land dealings that might, under the provisions of the Act, ultimately be declared to be void. Is that the essential argument?

MR PETROULIAS: No, they are declared void – I am sorry, they are void unless there is a certificate issued by the New South Wales – so, they start off void.

HER HONOUR: Yes, all right; that is the argument, is it?

MR PETROULIAS: Well, there is much more to it. That process, in itself, looks to the issues of dishonesty because it looks to transparency, it looks to the interests of board members, it looks to disclosure, it is the investigation has to be conducted as part of the approval process. So, when I look at paragraphs 53 and 54 of this Court’s decision in Cunneen, it is talking about such coercive powers are not meant to be applied to just ordinary conceptions of corruption in public administration, that is paragraphs 53 and 54. Now, ICAC by its own Act section 13(d) is required to examine the laws and practices of the public authority which it is dealing with. So, we cannot just ignore it – cannot ignore the effect of it.

The community – I wanted to show you an operation - yes, it is, your Honour, it is at page 64 of DB1, is the closest we have got to a proposal that was to go to the community with the consent of the Minister of Aboriginal Affairs. This document makes the point - this is to be put in front of the community. It explains that designing a master plan, at page 66, looks at the various priority the community wants, commercial strips, rehabilitation centres, fishing co-operatives, health clinics. Then at page 67 it says once it is approved by the community there is going to be independent feasibility study and planning report, independent legal opinion of the rights and obligations concluded in - - -

HER HONOUR: Mr Petroulias, again, the rights and wrongs of the matters either pending before the Supreme Court in the Equity Division or the subject of Operation Skyline are not matters of concern on the hearing of this application, which I remind you is for interim relief.

MR PETROULIAS: Yes, your Honour, the point I am trying to make from that is that there is simply – it is incapable, the system is designed – this approval system is designed to be corruption proof. It has not been allowed to operate. I am trying to demonstrate to you that if it – if you just indulge me just a little bit more, at page 68, the pecuniary interests of the people involved and their relevant history to the proposal is all identified. I will not push that further. Excuse me, your Honour.

Now, the only – I mean, the only link to corruption in this Operation Skyline is the concept of a disciplinary offence. A disciplinary offence under the Aboriginal Land Rights Act, section 176 and 181, involves more than one incident of misconduct and a pattern that is found by the Registrar to be repeated misconduct. My point being is ICAC has fundamentally misconstrued the Aboriginal Lands Right Act.

HER HONOUR: Let us assume that ICAC has fundamentally misconstrued the provisions of its Act, how does that bear on the relief that you claim in these proceedings?

MR PETROULIAS: Okay, in persuading you for interlocutory relief I wanted to demonstrate that it was not a serious matter – it was not a serious corruption matter, it was a misconception by ICAC of the whole Aboriginal Lands Right Act. Now, okay, I have made that point, so let us get back to the submissions.

This Court has, your Honour, as you will know better than me, struck down legislation, whether in part or in whole, in relation where it interferes with the functions of the judiciary, whether it imposes duties to the judiciary, International Finance, Kable, Wainohu, Totani, Thomas v Mowbray, or in the case of APLA it has got nothing to do with the function of judiciary but impedes the access to the Court.

Now, what – and I take you through, your Honour, paragraph 8, for example, that – where Justice Kirby is quoting with approval Ashby v White, the classic statement that unless you are able to get a remedy there is no right. Then, we say, that we look at – as his Honour French and McHugh point out, it could be the death of a judicial function by a thousand cuts, it does not have to be - - -

HER HONOUR: What is the death of the judicial function of which you complain?

MR PETROULIAS: Yes, I am just getting to that. The first is the appearance that the Tribunal is impartial and the integrity - it is the impartiality and independence of the Tribunal. I mean, as was said in Forge which picks up on paragraph 18, your Honour, which picks up on Ebner v Official Trustee, and what is pointed out is the exposure or the appearance of exposure to human frailties of a court, of a judge.

Now, we have had a lot of discussion in Totani and other cases about what is judicial independence but we have not actually identified it. Judicial independence has been identified as having immunity from judges from suits from invalidating - - -

HER HONOUR: Mr Petroulias, where is this dissertation on the qualities of judicial independence taking us?

MR PETROULIAS: The standard is not a particular case, it is that the function of the judiciary is not perceived to have the appearance of independence when there are a number of features to it. One, that you can have a body, like an ICAC, that has a sword of Damocles hanging above a judge because they are subject to the same – they are subject to ICAC. Plus, that where – which generally does not arise except where you have a case where ICAC is interested in a proceedings, so when - - -

HER HONOUR: How is ICAC interested in a proceeding? Are you referring to the proceedings involving Knightsbridge - - -

MR PETROULIAS: Yes, I am. It is – when it has extended its reach into matters which are seized by a court and making pronouncements publicly about witnesses, the decision-making – and your Honour, these are not observations of my own, the reputational damage, the inability to correct it, are matters that have been identified by the Inspector of ICAC, which I quote at paragraph 28.

For example, as Sperling says, to say that ICAC simply looks into corruption is not a complete statement. It:

takes evidence and evaluates that evidence for the purposes of deciding whether –

to make findings:

Such a finding may be extremely damaging to the reputations and indirectly to financial interests –

of the persons affected. As it says, that is the role of the court that has been seized of the matter, from the perspective of the public, from the perspective of the appearance of the judiciary function - to have a body make decisions about things that are within the seizure of that body is an affront to the independence of the judiciary. We do not have – the best – the better grasp of the issue seems to come from the House of Lords in the Sunday Times Case which I refer to in paragraph 50.

HER HONOUR: Well, there is no need to repeat the contents of your written submissions, I have them here. Is there something further you wish to put - otherwise you may rely on your written submissions.

MR PETROULIAS: So, you have read these, have you, sorry, your Honour?

HER HONOUR: Yes.

MR PETROULIAS: Okay. As his Lordship, in this case, Diplock, but Lord Reid also did a very good job as well, it is not the particular case that is significant, it is the idea that once a matter has been submitted to a court of law there is the implied right of the suitors to the expectation that they will be – that there will be no usurpation by anybody on the matters that are going to decide the issues that are before the court. It is that public expectation that that is the way that things are done that is significant. That is what is applicable to our constitutional separation which comes from sections 73, 75, 76 and, of course, the separation of powers in Chapter II and Chapter III.

Now, at paragraph 54, I quote Lord Diplock, in particular, where he is asking why is that we are not just looking at the implications for a particular case or not and he is saying:

The reason is that we cannot deal with a particular case in isolation.

It is the expectation that arises when – and to the public mind of the judiciary when matters that are properly before it are being determined by others. So, he talks about the absolute rule is not to look at the particular case but to prevent the bright line going into that sort of analysis.

Now, there were some comments here that I need to reply to. You do appreciate, your Honour, this ICAC – in terms of urgency and timing and the inconvenience to the other side, please understand that we get a summons, we have to turn up within two weeks, even if it involves a sole practitioner to rearrange their affairs. So, for example, you have to turn up, say, as Ms Bakis said, as did I, on Friday, the 2nd - - -

HER HONOUR: Mr Petroulias, difficult as it may be to comply with the requirements of the Commission, it is difficult to see that that aspect has any relevance to the challenge that you make to the ICAC Act, or to the decision made by the Commission to hold a public inquiry. It is those matters - or those matters are the subject of the application before me.

MR PETROULIAS: I understand that, your Honour. It is just that the submission was made against me that there are all these people waiting around and they have scheduled a hearing. I am trying to say, well, with respect, it is not for you to schedule out a hearing. You give us a summons, we turn up in good faith on a Friday, we then turn up again on Monday and then you hold a completely new inquiry two weeks later. In these circumstances - - -

HER HONOUR: Mr Petroulias, appreciating that there may be practical difficulties in responding to a summons issued by the Commission, the purpose of Mr Robertson’s submission was to draw attention to considerations sometimes said to go to the balance of convenience in relation to the relief that you claim today.

MR PETROULIAS: Yes, I agree.

HER HONOUR: In that regard, some emphasis is placed on the fact that as at 6 March of this year you knew that a public hearing had been announced, you knew it was to commence on 26 March and no doubt it would have occurred to you that considerable public resources would be applied in preparing for the conduct of such an inquiry and arranging for the attendance of people to give evidence before it. It is against that background that the Commission submits that I would not grant the relief that you seek. You understand that is the purpose.

MR PETROULIAS: Yes, and I am trying to respond to that by saying, well, hold on a second, you have changed the rule. You came under one investigation. We turned up on the Friday. We turned up again on the Monday and then on the Tuesday you changed the terms of reference. You would have known that you were going to do that and you started setting up to your convenience the number of witnesses. You never asked what about our convenience, what about a sole practitioner who has to put things aside to come to an inquiry on a matter which they know they are going to change because they have changed it from version 2 to version 3 within a day.

HER HONOUR: You have made that point. Move along.

MR PETROULIAS: Okay, fine. That was on a balance of convenience question. I am not saying here is anything about stopping their investigation. All I am simply saying is that it is just a public inquiry matter.

HER HONOUR: You have indicated that your challenge in relation to the prayers for relief concerning the holding of the public hearing you make clear is confined to the public hearing. You have no complaint respecting the investigation of Operation Skyline continuing other than in a public forum.

MR PETROULIAS: That is correct.

HER HONOUR: That does not deal with your asserted challenge to the validity of the Commission’s entire Act.

MR PETROULIAS: Or to the offending provisions being the public hearing and the ability to include the judiciary.

HER HONOUR: All right. Mr Petroulias, is there – Mr Robertson suggested at the conclusion of some submissions that he made - and I will come back to Mr Robertson in a moment but I just wanted to take this up with you - that the appropriate course in his submission is for me to dismiss your claim for interim relief and to stand the balance of the proceeding over remitting it to the Supreme Court of New South Wales. Do you have anything to say in relation to that order?

MR PETROULIAS: No, I am opposed to that.

HER HONOUR: What is the basis of your opposition to me remitting a matter to the Supreme Court?

MR PETROULIAS: I have brought this in this jurisdiction.

HER HONOUR: I understand you have but you would appreciate that this Court has a power under the Judiciary Act to remit matters that this Court, as the final court of appeal for Australia needs to husband its resources and so matters that may fall within its original jurisdiction but in respect of which the Supreme Courts of the States have jurisdiction, too, commonly a matter such as this would be remitted and determined by the Supreme Court, subject, of course, always to the possibility in the event that the proceeding failed to an appeal by special leave to this Court. You understand that scheme of things, Mr Petroulias?

MR PETROULIAS: Certainly, but the other course that was contemplated by this side was that there would be a section 40 referral to this Court of that matter as well so we would not be running - - -

HER HONOUR: All right. Is there anything further you wish to - - -

MR PETROULIAS: No.

HER HONOUR: Yes. Anything, Mr Robertson?

MR ROBERTSON: Just very briefly. My submission that proceedings as have just been explained are so weak that your Honour would be entitled to even come to the view that the case raises no reasonable prospect of success and thus could be dismissed under section 25A of the Judiciary Act. Alternatively, your Honour would at least be satisfied that they were not of sufficient merit to justify any interim relief.

Can I add one further reference to - the question of delay. If your Honour has Ms Caristo’s first affidavit, page 15, using the numbers in the bottom right-hand page, your Honour sees a letter from Knightsbridge North Lawyers on 19 March 2018. At about point 8 of the page, your Honour notes that Ms Bakis indicates that she is ready to file a summons for judicial review and your Honour will see that paragraph 1 is strikingly similar to the point which is sought to be raised in this Court.

So, to the extent that it was suggested that one needs research time or something of that sort, it was, at least, clear as at 19 March 2018 that a point of that sort was at least in play. For whatever reason a decision was made in the common law. Proceedings were not raised in the capital “C” constitutional point but instead only what I will call the lower case “c” constitutional point. But, in any event, it was in play, at least, at that point in time.

MR PETROULIAS: They were talking about four days.

MR ROBERTSON: Could your Honour do with some assistance from the Aboriginal Land Rights Act and the provisions that have been referred to? If so, I am happy to, otherwise I am happy to rest on what is otherwise apparent.

HER HONOUR: I have access to it, thank you, Mr Robertson.

MR ROBERTSON: The short point in answer to that aspect of the case, both as run in the Common Law Division and said to be here, is that, even though it is correct to say that a local Aboriginal land council cannot participate in a land dealing without the approval of what I will describe as

the peak body, the New South Wales Aboriginal Land Council, that does not mean that there cannot be any corrupt conduct focused at the local Aboriginal land council level.

To take an obvious example, if one was to give a bribe to a ministerial adviser who in and of themselves has no power under relevant legislation to stick a document under the Minister’s nose, that could still amount to corrupt conduct. In a similar way, corrupt conduct could be engaged in or directed to a local Aboriginal land council, even though one ultimately requires the approval of the peak body.

HER HONOUR: By summons filed on 23 March 2018, the plaintiff commenced proceedings by writ of summons seeking declaratory and constitutional writ relief against the defendant, the Independent Commission Against Corruption (“the Commission”). On the same date, the plaintiff filed a summons claiming an interlocutory order restraining the Commission from conducting a public inquiry pursuant to section 31 of the Independent Commission Against Corruption Act 1988 (NSW) (“the ICAC Act”) into allegations respecting property proposals made to the Awabakal Local Aboriginal Land Council (“the ALALC”) between May 2015 and September 2016.

An affidavit sworn by the plaintiff’s solicitor, Despina Bakis of Knightsbridge North Lawyers Pty Ltd (“Knightsbridge”), was filed in support of the relief claimed in the summons. Despite the circumstance that the plaintiff is represented by Knightsbridge, he has appeared in person to present arguments in support of the grant of interim relief. As will appear, Knightsbridge is itself interested in the subject matter of the Commission’s public hearing.

The Commission relies on two affidavits sworn by Megan Frances Caristo, a solicitor employed in the office of the Crown Solicitor. From these it appears that the Commission has been investigating allegations of corrupt conduct concerning the directors of the board of the ALALC and others in relation to a scheme involving proposals for the sale and development of properties (“the sale and development scheme”) owned by the ALALC (“the investigation”).

As part of the investigation, the Commission is also investigating whether any ALALC board director acted dishonestly and/or in breach of his or her duty as a board member in purporting to retain or retaining Knightsbridge to act for the ALALC in respect of the sale and development scheme. The Commission’s investigation commenced in June 2017. It has been given the name “Operation Skyline”.

On 6 March 2018, the Commission announced a public inquiry under section 31 of its Act, to be convened in Sydney for the purposes of Operation Skyline and to commence at 10.00 am on 26 March 2018. On the same day, the Commission served a summons on the plaintiff, requiring him to appear and give evidence at the public inquiry.

On 19 March 2018, Knightsbridge advised the Commission of its readiness to file a summons for judicial review seeking, inter alia, a declaration that the ICAC Act is invalid as repugnant to Chapter III of the Constitution; particularised by one assertion that the real and apparent independence and impartiality of the judiciary necessary to the Supreme Court of New South Wales as a court within Chapter III of the Constitution is impaired in a respect not further identified. Other allegations, proposed to be the subject of the foreshadowed judicial review proceedings, bear notable similarity to the prayers for final relief in the present proceedings.

On 21 March 2018, Knightsbridge commenced proceedings on its own behalf in the Supreme Court of New South Wales seeking similar relief to that claimed in these proceedings on similar grounds.

On Thursday, 22 and Friday, 23 March 2018, a final hearing of the Knightsbridge judicial review proceedings took place before Justice Fagan in the Supreme Court of New South Wales. On 23 March 2018, his Honour dismissed the Knightsbridge summons with costs.

Today, at around 9.40 am, Justice White commenced hearing an application by Knightsbridge for an interim injunction. Around 11.50 am, his Honour gave judgment dismissing that application. The parties in those proceedings were informed that Knightsbridge’s application for leave to appeal from the orders of Justice Fagan would be heard concurrently with any appeal on 29 March 2018.

The announced public hearing into Operation Skyline did not commence today. It appears that it has been rescheduled to commence at 10.00 am tomorrow. Ms Caristo states her instructions that the Commission does not intend to call the plaintiff to give evidence before the week beginning Tuesday, 3 April 2018.

Ms Caristo deposes to her instructions that the investigation and the public inquiry concern matters considered by the Commission to be of significant public interest, namely, dealings affecting Aboriginal land and the possible exploitation of a local Aboriginal land council for financial gain, together with consideration of the governance of local Aboriginal land councils.

In addition to the plaintiff, a further 32 witnesses have been summonsed to attend the public inquiry and some of those witnesses will need to travel from or near Newcastle to Sydney in order to attend the hearing. Senior and junior counsel assisting the Commission have been engaged on the basis that the public inquiry would take three weeks from 26 March 2018.

The public inquiry into Operation Skyline forms part of a program of public inquiries planned by the Commission. Consistent with that program, a further, unrelated public inquiry is scheduled to commence on Monday, 16 April 2018, and summonses for some 39 witnesses have been issued by the Commission in relation to that further inquiry.

It is central to the argument that the plaintiff seeks to advance in support of the relief claimed that the impact of the public hearing into Operation Skyline will affect certain proceedings pending in the Equity Division of the Supreme Court of New South Wales. Knightsbridge is a party to those proceedings. Some of the factual substratum of the proceedings in the Equity Division (“the Equity proceedings”) is thought to be common to matters that are to be touched on in the public hearing of Operation Skyline.

The Commission draws attention to correspondence by Ms Bakis of Knightsbridge dated 7 March 2018, requesting reasons for the decision to conduct a public inquiry into Operation Skyline. In that letter, Ms Bakis and the plaintiff are named, among other individuals, as persons having an interest in the proposed public hearing.

Against this background, the Commission submits that the parallel proceedings in the New South Wales Supreme Court, and the delay in bringing the present proceedings, together provide powerful reasons for this Court to dismiss the application for interim relief. The plaintiff submits that the delay is partly explained by the circumstance that the Knightsbridge file concerning the matter was made available to the Commission and that it took some time for Knightsbridge to obtain a USB containing scanned copies of the file. In the circumstances, the plaintiff submits that he moved with reasonable promptness to seek the relief claimed.

The first claim for final relief is a declaration that the ICAC Act in its entirety is repugnant to Chapter III of the Constitution and, for that reason, wholly invalid. The remaining claims focus on the lawfulness of the Commission’s decision to hold a public inquiry into Operation Skyline, a decision said to be vitiated by jurisdictional error and to be contrary to section 21 of the Public Interest Disclosures Act 1994 (NSW).

The plaintiff claims to have a special interest giving him standing to claim the relief sought. That is so notwithstanding that central to the argument that he seeks to advance is the impact of the conduct of the public hearing on the Equity proceedings. The plaintiff is not a party to those proceedings, and the identification of his special interest[1]is unclear.

In written submissions filed by the plaintiff, it is asserted that the plaintiff is “the real target of the investigation”. There is no evidence before me to support that assertion.

I propose for present purposes to proceed upon acceptance that the service on the plaintiff of the summons to give evidence before the public hearing is a sufficient special interest. The principles governing the grant or refusal of interlocutory injunctions, including in public law cases on constitutional grounds, are as stated by Acting Chief Justice Mason in Castlemaine Tooheys Ltd v South Australia[2]. The plaintiff must show, first, that there is a serious question to be tried or that the plaintiff has made out a prima facie case in the sense that, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be entitled to the relief claimed; secondly, that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless the injunction is granted; and, thirdly, that the balance of convenience favours the granting of an injunction.

In cases in which the public interest might be adversely affected by the grant of an injunction, Acting Chief Justice Mason observed that the plaintiff may need to show a probability, even a distinct probability, of success in order to obtain an interlocutory injunction. In this respect, his Honour made reference to the view taken by Canadian courts that only in exceptional circumstances would an interlocutory injunction be granted to restrain enforcement of a statute challenged on constitutional grounds[3]. While there are circumstances in which this Court, on a proper balance of convenience, will restrain enforcement of a statute in aid of a plaintiff’s constitutional right, absent what his Honour characterised as “compelling grounds”, it was said to be the duty of the court to respect the enactment until it is adjudged to be ultra vires.

The grounds on which the ICAC Act and, less ambitiously, the Commission’s decision to hold a public inquiry are impugned, all are linked to the pending Equity proceedings. It appears that the subject matter of the public hearing of Operation Skyline and the Equity proceedings may have some degree of overlap.

The plaintiff challenges the validity of the ICAC Act on Kable grounds[4]. For reasons that are not developed with clarity, it is baldly asserted that the ICAC Act offends against the “real and apparent independence and impartiality of the judiciary necessary to the Supreme Court of New South Wales being a ‘Court’ within Chapter III of the Constitution” and offends against an implied constitutional right articulated in these terms: “once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function that an impartial court judiciary free of distractions to decide it apply judicial processes according to law.”

Turning to the prayers for relief that challenge the decision to hold the public inquiry, it is contended that the Commission failed to take into account relevant considerations. The nub of this ground is the suggestion that the subject matter of Operation Skyline does not concern “serious or systemic corrupt conduct” within the meaning of sections 8 and 12A of the ICAC Act.

Shortly put, it is argued that since the Aboriginal Land Rights Act 1983 (NSW) operates in defined circumstances to make void a purported land dealing by an Aboriginal land council[5], persons cannot affect adversely, directly or indirectly, any member of the board of an Aboriginal land council to approve a land dealing. As the Commission observes, the circumstance that a land dealing requires approval under the statutory scheme does not mean that there cannot be “corrupt conduct”, as that expression is defined in the ICAC Act, directed towards directors or others of a local Aboriginal land council. The palpable strength of that assertion need only be stated to accept it.

None of the arguments that seek to enlist the Kable doctrine arising out of the circumstance that the Equity proceedings and the public hearing of Operation Skyline provides an arguable basis of successful challenge to the ICAC Act.

Section 21 of the Public Interest Disclosures Act 1994 (NSW) protects a person from liability from making a public interest disclosure. No arguable basis is made out to suggest that the holding of a public inquiry contravenes the provision. The plaintiff’s submissions are principally directed to the proposition that the holding of a public hearing into matters that may, in some respect, overlap with the Equity proceedings will trench on the independence and impartiality of the Court. It is asserted that the Supreme Court’s decision “will be influenced or at least distracted by the public findings of [the Commission]” and that “when [the Commission] decides to superimpose itself on Supreme Court proceedings on foot has all the recognised features of repugnancy to the judicial function (a) it risks having the Supreme Court look as implementing the political decisions of the Executive and (b) makes a ‘mockery of the judicial system contemplated by Chapter III.’”

The proposition that a judge of the Supreme Court will be influenced or distracted by the Commission’s public hearing into Operation Skyline does not present as a tenable one. Nor does the contention that the holding of the public hearing will risk the Supreme Court appearing to implement decisions of the Executive. As noted, the contention that an investigation into the possible exploitation of a local Aboriginal land council for financial gain falls outside section 12A of the ICAC Act does not impress as having any reasonable prospect of success.

It is necessary for the plaintiff to establish a, if not the, compelling grounds to which acting Chief Justice Mason referred in Castlemaine Tooheys, at least that there is a serious question to be tried in the way that expression has been explained and, for the reasons briefly given, I am not persuaded that he has made out such a case.

Shortly put, nothing in the prolix submissions filed by the plaintiff shows sufficient colour of a right to the final relief to warrant the grant of the interlocutory injunction sought. The summons claiming an interim order restraining the Commission is dismissed with costs.

The Commission proposes that the balance of the proceeding be remitted to the Supreme Court of New South Wales. That application is opposed by the plaintiff. The plaintiff foreshadowed an application to remove the Equity proceedings into this Court. In my view, the appropriate course is to remit the proceedings to the Supreme Court of New South Wales and to direct that the steps taken thus far in the proceedings be steps in the proceedings in the New South Wales Supreme Court.

MR ROBERTSON: May it please the Court.

HER HONOUR: Are there any further orders required?

MR ROBERTSON: I do not think so, your Honour.

MR PETROULIAS: Your Honour, just the issue of costs - we raised the Hardiman application, the costs should be limited to those strictly necessary for attendance, not necessarily the whole application.

HER HONOUR: Mr Robertson?

MR ROBERTSON: I seek costs and for it not to be limited on that basis. As your Honour will recall from the Hardiman decision, this Court indicated that at least submissions as to the powers and procedures of a public body were appropriately made and those are the nature of the submissions that I have made to your Honour today.

MR PETROULIAS: They were a little bit more substantial than that, your Honour.

HER HONOUR: Mr Petroulias, I have heard your submission. I do not propose to vary the order. In the usual course, costs will follow the event. The order remains that the summons is dismissed with costs.

MR ROBERTSON: If the Court pleases.

HER HONOUR: The Court will adjourn.

AT 4.22 PM THE MATTER WAS CONCLUDED

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[1] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 527.
[2] [1986] HCA 58; (1986) 161 CLR 148.
[3] Castlemaine Tooheys Ltd at 155 citing (1983) 42 OR(2d) 659 at 668.
[4] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
[5] Aboriginal Land Rights Act 1983 (NSW) s 42C(1).