against the Commission on this issue (referring to Hartnett t/as Hartnett Lawyers v Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 at [153]–[154], and the cases there cited).
323 The applicant contends that, by continuing to prepare the (draft) Report after the expiration of her appointment as an Assistant Commissioner, Ms McColl exceeded the authority conferred upon her under the Act; and that this amounts to jurisdictional error (citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163], quoted with approval in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [66]), which affects the Report furnished to Parliament, having regard to the Commission's adoption of the Report prepared by Ms McColl outside the limits of her authority.
324 In oral submissions, Senior Counsel for the applicant made clear that there is no issue taken with the proposition that the Commission may enlist the assistance of persons in connection with the preparation and making of a report (see at AT 4.5-12) but the applicant's position, as I understand it, is that, insofar as the Commission 'adopted' the findings or opinions by Ms McColl as to witness credibility assessments, this amounted to jurisdictional error, as the making of such assessments by Ms McColl at the time that she was merely a consultant was beyond power.
325 In that regard, it is important to note that the Commission expressly noted that it had adopted assessments made by Ms McColl (see [2.37] of the Report, reproduced in the majority judgment at [63]) and that the Commission emphasised that assessments as to witness credibility and reliability were important factors for the Commission to consider in properly weighing the evidence and making findings of fact available on that evidence (see at [2.38] of the Report, also reproduced in the majority judgment).
326 The Commission, in its written submissions, contends that the applicant has not established that the Commission 'adopted' a report prepared (in the statutory sense) by Ms McColl or adopted any findings and opinions made by by Ms McColl. However, at least in relation to the assessment of witness credibility, that is squarely contradicted by the Report itself (and, in particular, the statement at [2.37] that has been reproduced in the majority judgment). While the Report does not record particular findings by Ms McColl contained in her draft Report, it cannot be gainsaid that the Commission did adopt Ms McColl's assessments. That is exactly what the Report says it did.
327 The Commission argues that [2.37] should be understood, in context, as meaning that it took the benefit of Ms McColl's assessment of factors of the kind set out at [2.37] (such as the responsiveness of otherwise of answers and the like) to assist it in making (its own) findings, including as to credibility. Further, the Commission points to the fact that
