NSW Government Bulletin - 16 December 2015

The Supreme Court of NSW recently handed down its decision in McCloy v Latham [2015] NSWSC 1879 dismissing Jeff McCloy's summons seeking to restrain the Independent Commission Against Corruption (Commission) from continuing with, or reporting upon, an investigation conducted by it known as "Operation Spicer", at least while the first defendant (the Commissioner) was presiding over that investigation. Mr McCloy, a property developer and former mayor of Newcastle, alleged that there were reasonable grounds for apprehending that the Commissioner might not bring an open mind to the resolution of the question of what, if any, findings to make in respect of him.

"Operation Spicer", an inquiry into illegal political donations by property developers in NSW, was conducted from 28 April to 12 September 2014. It was particularly heated, and at times intensely confrontational. These matters, it was said by His Honour Justice McDougal, "must be assessed, in deciding whether the matters upon which Mr McCloy relies are capable of founding the necessary reasonable apprehension of bias".

The nature of Mr McCloy's allegations, broadly speaking, included adverse treatment of a number of witnesses, influenced by what was called a "predetermined case theory" implicating Mr McCloy, failure to put matters to Mr McCloy with a proper factual or legal basis, indications of political bias by both Counsel assisting and the Commissioner, lack of even-handed treatment and lack of procedural fairness.

At a general level, His Honour noted numerous structural flaws in the articulation of Mr McCloy's case, which from the outset made his case difficult to succeed. Firstly, Mr McCloy's case was not that any one, or indeed any one group, of the grounds on which he relied was of itself sufficient to give rise to a reasonable apprehension of bias. Rather, it was the cumulative effect of all the matters alleged that had this result. His Honour noted if, among the grounds, "something alleged is inherently incapable of creating a reasonable apprehension of bias, then the fact that it is combined with other matters that may contribute towards that apprehension does not add anything". Secondly, His Honour noted that the nature or content of the alleged "predetermined case theory" was "unilluminating". To allege that an investigative body such as the Commission had a "case theory" at the stage when it decided to conduct a public hearing was, in His Honour's eyes, to do no more than...