Obeid & Ors v Ipp & Ors  NSWSC 1376
On 27 September 2016, Justice Hammerschlag of the Supreme Court of NSW handed down the decision of Obeid & Ors v Ipp & Ors  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.
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.
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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Edward Moses Obeid Snr -v- David Andrew Ipp
 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
Bills assented to
Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Act 2016 No 44 — Assented to 28 September 2016.
Regulations and other miscellaneous
Administrative Arrangements (Administration of Acts—Amendment No 2) Order 2016 (2016-611) — published LW 7 October 2016.
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