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 2016

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.

NSW Government Lawyers Linkedin Group

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to those employed in the public sector.

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

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...


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.

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.

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.

Spice v Mosman Council [2016] NSWCATAD 215
ADMINISTRATIVE LAW –– access to government information – deliberative process of government or agency – overriding public interest against disclosure.

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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Christine Jones
Kim Nguyen
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.