Kaldas v Barbour [2017] NSWCA 275

Kaldas v Barbour [2017] NSWCA 275

Section 35A of the Ombudsman Act 1974 (NSW) operates to preclude all proceedings, including judicial review for jurisdictional error, in respect of acts or omissions for the purpose of executing the Act, save for acts done in bad faith (which require leave of the Supreme Court). None of the claims fall within s 35B(1). Section 35A is not unconstitutional in this respect, as the power to grant declarations is not a defining characteristic of the Supreme Court for the purposes of Ch III of the Constitution. Notices to produce are precluded by s 35(1) of the Ombudsman Act and s 165(1) of the Police Act. Neither s 35(1) nor s 165(1) is invalid.

Parties
Plaintiff: Naguib (Nick) Kaldas; First Defendant: Bruce Barbour; Second Defendant: Ombudsman NSW; Third Defendant: Linda Waugh; Intervener: New South Wales Attorney General
Jurisdiction
Australia
Judgment Date
24 October 2017
Procedural Posture
Appeal (special Case Questions of Law) / Determination of Referred Questions Prior to Merits
Outcome
Applicant's claims are wholly precluded by s 35A of the Ombudsman Act. Notices to produce are to be set aside. Neither s 35 nor s 165 is invalid. Applicant (Kaldas) to pay costs of all respondents.
Legal Topics
Judicial Review, Statutory Privative Clauses, Ombudsman Act 1974 (nsw), Constitution S 73, Ch III, Doctrine of Kirk V Industrial Relations Commission, Immunity Provisions, Procedural Fairness, Injunctions and Declarations by State Supreme Courts
Administrative Law Constitutional Law Statutory Interpretation Judicial Review Statutory Privative Clauses Ombudsman Act 1974 (nsw) Constitution S 73, Ch III Doctrine of Kirk V Industrial Relations Commission +3 more

Case Brief

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Parties

Naguib (Nick) Kaldas

Plaintiff

Bruce Barbour

First Defendant

Ombudsman NSW

Second Defendant

Linda Waugh

Third Defendant

New South Wales Attorney General

Intervener

Procedural Posture

Appeal (special Case Questions of Law) / Determination of Referred Questions Prior to Merits

Legal Issues

  1. 1 Whether s 35A of the Ombudsman Act 1974 (NSW) precludes judicial review of the Ombudsman's actions including on the ground of jurisdictional error;
  2. 2 Whether the Court can grant leave under s 35A(2) nunc pro tunc;
  3. 3 Whether s 35A is invalid on constitutional grounds (Kirk v Industrial Relations Commission);

Ratio Decidendi

Section 35A of the Ombudsman Act 1974 (NSW) operates to preclude all proceedings, including judicial review for jurisdictional error, in respect of acts or omissions for the purpose of executing the Act, save for acts done in bad faith (which require leave of the Supreme Court). None of the claims fall within s 35B(1). Section 35A is not unconstitutional in this respect, as the power to grant declarations is not a defining characteristic of the Supreme Court for the purposes of Ch III of the Constitution. Notices to produce are precluded by s 35(1) of the Ombudsman Act and s 165(1) of the Police Act. Neither s 35(1) nor s 165(1) is invalid.

Court Disposition

Applicant's claims are wholly precluded by s 35A of the Ombudsman Act. Notices to produce are to be set aside. Neither s 35 nor s 165 is invalid. Applicant (Kaldas) to pay costs of all respondents.

Orders

  • The claims in the Further Amended Summons are wholly precluded by s 35A(1) of the Ombudsman Act 1974 (NSW).
  • The Court has no power to grant leave under s 35A(2) nunc pro tunc.