Australia: NSW Government Bulletin - 12 October 2016

Last Updated: 19 October 2016
Article by Christine Jones and Kim Nguyen
Most Read Contributor in Australia, September 2018

Obeid & Ors v Ipp & Ors [2016] NSWSC 1376

On 27 September 2016, Justice Hammerschlag of the Supreme Court of NSW handed down the decision of Obeid & Ors v Ipp & Ors [2016] NSWSC 1376.

The proceedings were brought by Edward Obeid Snr, Moses Obeid, Paul Obeid and Edward Obeid Jnr against the Independent Commission Against Corruption (ICAC), former ICAC Commissioner, Counsel assisting the Commissioner and two ICAC investigators, in relation to 'Operation Jasper'. The plaintiffs alleged that they were denied procedural fairness from ICAC and that the defendants engaged in the tort of public misfeasance. However, the plaintiffs were ultimately unsuccessful on all counts.

No interest in proceedings

Firstly, Edward Obeid Jnr's claims were dismissed because the ICAC report did not make any findings against him. The Court noted he had no interest in the proceedings and no attempt was made to identify his interest in the proceedings.

Procedural fairness

As a finding of corrupt conduct may have devastating effects on a person and their reputation, ICAC must afford procedural fairness to persons who may be adversely affected by ICAC's findings.

The plaintiffs claimed they were denied procedural fairness on multiple grounds, one being because ICAC did not disclose certain matters to them and accordingly, the plaintiffs were denied the opportunity of leading evidence, making submissions and changing the outcome of the inquiry.

The Court held that the failure to disclose to the plaintiffs certain matters did not deny the plaintiffs an adequate opportunity to be heard or a possibility of a successful outcome for the following reasons:

  • the plaintiffs were provided with sufficient opportunity to be heard and to deal with the issue;
  • even if the matters were disclosed, the plaintiffs would not have taken a different course; and
  • there was no alternative course practically open to the plaintiffs which could have led to different outcome.

Public misfeasance

The plaintiffs claimed damages from ICAC, the former Commissioner, Counsel assisting ICAC and the two ICAC investigators for public misfeasance in public office. Misfeasance in public office is when damage is suffered, caused by an act done by a public officer in excess of authority, with the intention of causing harm to a plaintiff. Alternatively, it is when the public officer knows (or ought to know) the act is beyond power and involves a foreseeable risk of harm.

The plaintiffs' claims for public misfeasance failed against all of the defendants for the following reasons:

  • In relation to ICAC, the Court found that because the plaintiffs were not denied procedural fairness, ICAC did not engage in public misfeasance. The Court also stated that there was a live question about whether ICAC (as it is not an individual) could commit a tort and noted that this may turn on the particular power being exercised by it. Furthermore, given the personal nature of the tort, there was difficulty in accepting the plaintiffs' submission that the state of mind of ICAC employees or Counsel assisting ICAC should be attributed to ICAC.
  • In relation to the Commissioner, the plaintiffs could not establish that the Commissioner, in making a suppression order, acted beyond power or was recklessly indifferent as to whether he was in excess of power.
  • In relation to Counsel assisting, the Court found amongst other things that he did not hold public office and did not hold any public power.
  • In relation to the ICAC investigators, the Court found that they did not hold public office. Furthermore and although it was unnecessary to consider, whilst the investigators knowingly acted in excess of their powers, the plaintiffs did not prove that they suffered any damage.

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In the media

NSW Premier Mike Baird admits he 'got it wrong' after backflip on greyhound racing ban
New South Wales Premier Mike Baird says he ditched a ban on greyhounds because he "got it wrong" and believes the majority of the community wants the industry to have a second chance (11 October 2016). More...

Greyhound racing given one final chance under toughest regulations in the country
The NSW Government will give in principle support for greyhound racing to have one final chance in NSW, subject to industry agreeing to the strictest regulations that exist anywhere in the country to clamp down on animal cruelty (11 October 2016). More...

NSW rural councils lose merger case, pay costs
NSW rural councils have been dealt a serious blow to their hopes of preventing the state government forcibly merging them with their neighbours and they have been ordered to pay the state government's court costs (07 October 2016). More...

Relaxation of Drone Regulation in Australia
On 29 September 2016, changes to the regulation of "remote piloted aircraft systems", brought about by the provisions of the Civil Aviation Legislation Amendment (Part 101) Regulation 2016 [CTH] (the Regulations), came into effect, leading to increased privacy concerns and collision (04 October 2016). Relaxation of Drone Regulation in Australia

Judges admit to emotion in court but say they avoid bias
Australian judges and magistrates admit to experiencing strong personal feelings toward cases they have presided over, new research finds (29 September 2016). Judges admit to emotion in court but say they avoid bias

Appointment of Australian Information Commissioner and Privacy Commissioner
The Government will recommend to His Excellency the Governor-General of Australia, General the Honourable Sir Peter Cosgrove AK MC (Ret'd), the appointment of Timothy Pilgrim PSM as Australian Information Commissioner and his reappointment as Australian Privacy Commissioner (28 September 2016). Appointment of Australian Information Commissioner and Privacy Commissioner

The impact of the NSW Bail Act 2013 on trends in bail
The NSW Bail Act (2013) and subsequent amendments have had only a modest effect on the percentage of defendants refused bail, according to BOCSAR. The Act replaced a complex set of presumptions concerning bail with a single 'unacceptable risk' test (26 September 2016). The impact of the NSW Bail Act 2013 on trends in bail

In practice and courts

NSW IPC: revised learning module to assist compliance with contract registers under the GIPA Act - 05 October 2016
The Acting NSW Information Commissioner has updated the learning module on contract registers to provide guidance to entities regulated by the Government Information (Public Access) Act 2009 (GIPA Act). This resource has been revised in consultation with our stakeholders to assist agencies in understanding how to comply with their contracts register obligations under the GIPA Act. Click here to register to complete Contracts Registers under the GIPA Act.

NSW IPC: new Open Data resource launched – 28 September 2016
the Open Data: Opening our World infographic to provide users with a simple explanation of Open Data and how it can be used to enhance the way we live and work. Click here to view the Open Data: Opening our World infographic featuring case studies and examples of how Open Data has been used to enhance the way we live and work.

ICAC: Prosecution briefs with the DPP and outcomes
Tables showing outcomes of ICAC-related prosecutions and briefs with the Director of Public Prosecutions, updated 7 October 2016. Prosecution briefs with the DPP and outcomes

ICAC: Register now for Australia's premier investigators and complaint handlers forum
Registration is now open for the 11th National Investigations Symposium to be held 9 to 11 November 2016 at the Four Seasons, Sydney. Register now for Australia's premier investigators and complaint handlers forum

NSW IPC: Australia's Information Commissioners commend citizens' Right to Know
This year, Australia's State and Commonwealth Information Commissioners have joined together to promote their commitment to the importance of Open Government and the right to access government-held information and data on International Right to Know Day, 28 September 2016. More...

Have your say: revenge porn offence in NSW
The NSW Government has started consultation on plans to criminalise "revenge porn", the distribution of intimate or sexually explicit images without consent. The NSW Government invites interested individuals and organisations to respond to the issues raised in this discussion paper. A discussion paper will be available until 21 October 2016 at http://www.haveyoursay.nsw.gov.au.

Published – articles, papers, reports

Impacts of changes to trading hours of liquor licences on alcohol-related harm: a systematic review 2005–2015
Public Health Research & Practice: 30 September 2016 - Claire Wilkinson, Michael Livingston, Robin Room. This paper outlines a systematic review of the literature to examine recent (2005–2015) research about the impact of changing the hours of sale of alcohol on alcohol-related harms. More...

The revised group risk assessment model (GRAM 2): assessing risk of reoffending among adults given non-custodial sanctions
Efty Stavrou, Suzanne Poynton; NSW Bureau of Crime Statistics and Research: 29 September 2016. Out of 81,199 adult offenders, 26% reoffended within two years of the index appearance. More...

What's causing the growth in Indigenous imprisonment in NSW?
NSW Bureau of Crime Statistics and Research: 28 September 2016 Examines the rise in the NSW Indigenous prison population. More...

A follow-up on the impact of the Bail Act 2013 (NSW) on trends in bail
NSW Bureau of Crime Statistics and Research: 26 September 2016
The Bail Act 2013 (NSW) and subsequent amendments appeared to have an effect on the number and proportion of bail eligible defendants refused bail. More...

Cases

Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 222
ADMINISTRATIVE LAW – access to government information – access application – previous request – decision to refuse to deal with application.
https://www.caselaw.nsw.gov.au/decision/57f590c8e4b058596cba035a

CCC v Department of Family and Community Services [2016] NSWCATAD 225
ADMINISTRATIVE REVIEW – review of decision of the respondent to remove three foster children from the day-to-day care of authorised carers and to cancel the authorisation of those carers.
https://www.caselaw.nsw.gov.au/decision/57f6cbf6e4b058596cba03db

Oberon Council v Minister for Local Government; Cabonne Shire Council v Minister for Local Government; McAlister and Graham v Minister for Local Government [2016] NSWLEC 131
JUDICIAL REVIEW – proposals for amalgamation of local government areas – whether proposals made in accordance with Local Government Act 1993 – whether proposals made by Minister – whether decision to make proposals manifestly unreasonable – referral of proposals to Departmental Chief Executive for examination and report – whether referral of proposals manifestly unreasonable – inquiries required to be held – whether reasonable public notice given of the holding of inquiries – whether inquiries held in accordance with Act – whether examination and report on proposals in accordance with Act – whether Departmental Chief Executive had regard to relevant considerations in s 263(3) of Act – whether affected councils denied procedural fairness by Departmental Chief Executive – review and comment on Departmental Chief Executive's reports by Boundaries Commission – whether review conducted in accordance with Act – whether affected councils denied procedural fairness by Boundaries Commission – publicly accessible material in support of proposals represented that analysis and modelling of consultant was independent – whether representations misleading – whether allegedly misleading representations invalidated statutory process of amalgamation – whether Minister made decisions under Act to recommend implementation of proposals to Governor – whether Minister's decision to recommend to Governor that a proposal be implemented was invalid.
https://www.caselaw.nsw.gov.au/decision/57f3004ae4b0e71e17f547cf

Spice v Mosman Council [2016] NSWCATAD 215
ADMINISTRATIVE LAW –– access to government information – deliberative process of government or agency – overriding public interest against disclosure.
https://www.caselaw.nsw.gov.au/decision/57e9bceae4b058596cb9feab

Edward Moses Obeid Snr -v- David Andrew Ipp [2016] NSWSC 1376
ADMINISTRATIVE LAW — STATUTES — Independent Commission Against Corruption Act 1988 (NSW) ("the Act") — inquiry into allegations of corruption — requirement to provide procedural fairness to potentially affected persons — claim by the plaintiffs for declaratory relief that they were denied procedural fairness by reason of the non-disclosure of a number of specified matters — HELD: denial of procedural fairness not established — the plaintiffs had an adequate opportunity to deal with the relevant subject matter — the plaintiffs were not deprived of the possibility of a successful outcome. TORT — Misfeasance in public office — requirements for liability — whether defendants held public office — whether they knowingly or recklessly exceeded powers — whether they were reckless as to whether plaintiffs would suffer damage — whether plaintiffs suffered damage — CLAIM that ICAC committed misfeasance by knowingly denying procedural fairness — HELD: plaintiffs not denied procedural fairness — damage not established — CLAIM that Commissioner committed misfeasance in public office by making a suppression order which he knew he had no power to make — HELD: not established that the Commissioner had no power — not established that the Commissioner knew he had no power — no damage established — CLAIM that Counsel Assisting committed misfeasance in public office by cross-examining on a knowingly false premise — HELD: Counsel Assisting did not occupy public office — existence of false premise not established — no damage established — Counsel Assisting entitled to barristers' immunity — CLAIM that ICAC investigators who executed search warrant committed misfeasance in public office by causing videotaping of documents outside search warrant — HELD: investigators executing search warrant did not hold public office — held they did knowingly engage in conduct beyond power — knowledge or recklessness of damage to be suffered not established — no damage established. https://www.caselaw.nsw.gov.au/decision/57e9cbe1e4b058596cb9fedb

Legislation

Bills assented to
Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Act 2016 No 44 — Assented to 28 September 2016.

Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—Amendment No 2) Order 2016 (2016-611) — published LW 7 October 2016.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Christine Jones
Kim Nguyen
 
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