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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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.
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