Page:AB (a pseudonym) v Independent Broad-based Anti-corruption Commission.pdf/9

Gageler CJ Gordon J Edelman J Steward J Gleeson J Jagot J Beech-Jones J

The decisions below

9 Before the primary judge, Ginnane J, the appellants contended, inter alia, that IBAC had contravened s 162(3) of the IBAC Act by failing to provide them with a reasonable opportunity to respond to the adverse findings in the Draft Report. His Honour construed the reference to "adverse material" in s 162(3) as meaning "the material upon which IBAC's adverse comments or opinions contained in the Draft Report were based". However, his Honour did not accept that, to comply with s 162(3), IBAC had to provide that evidentiary material to the appellants, but instead found it was sufficient if IBAC provided "the substance or gravamen of the adverse material". His Honour concluded that the redacted version of the Draft Report contained the "substance of the adverse material upon which the adverse comments or opinions about the [appellants] … were based". His Honour also found that, by providing the appellants an opportunity to respond to the Draft Report, IBAC afforded them the reasonable opportunity referred to in s 162(3).

10 The appellants sought leave to appeal from the primary judge's decision. Their application for leave to appeal to the Court of Appeal raised various grounds that invoked s 162(3), including a contention that, even if s 162(3) could be complied with by providing the "substance and gravamen of the adverse material", the primary judge erred in concluding that was included in the Draft Report. This contention was confined to adverse comments or opinions set out in five passages in Pt 5 of the Draft Report.