Kaldas v Barbour - [2017] NSWCA 275

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kaldas v Barbour [2017] NSWCA 275
Hearing dates: 8-9 June 2017
Date of orders: 24 October 2017
Decision date: 24 October 2017
Before: Bathurst CJ at [1]; Basten JA at [205]; Macfarlan JA at [380]
Decision:
1.   The questions referred for determination by the Court should be answered as follows:

Question 1: Assuming s 35A of the Ombudsman Act 1974 is valid:
(a) are the claims in the Further Amended Summons filed 13/2/2017 precluded in whole or in part by s 35A(1)?
(b) does this Court have power to grant leave pursuant to s 35A(2) nunc pro tunc following a hearing on the merits of the Further Amended Summons?

Answer: On the basis that s 35A is valid,
(a) the claims in the further amended summons are wholly precluded by s 35A(1);
(b)   no.

Question 2: If the claims in the Further Amended Summons are precluded, in whole or in part, by s 35A(1):
(a) is s 35A invalid on the grounds of the doctrine in Kirk v Industrial Relations Commission (2010) 239 CLR 531?
(b)   if so can any invalid part of s 35A be severed and/or read down and, if so, in what way?

Answer: In respect of (a) – Section 35A is not invalid on the ground that it exceeds the power of the State Parliament as constrained by Chapter III of the Constitution.
In respect of (b) – The question does not arise.

Question 3: Which, if any, claims in the Further Amended Summons are made pursuant to s 35B(1) of the Ombudsman Act?

Answer: No claims are made pursuant to s 35B(1).

Question 4: Assuming s 35 of the Ombudsman Act and/or s 165 of the Police Act 1990 are valid:
(a) should the Notice to Produce issued to the 2nd defendant dated 6/12/2016 be set aside on the ground of s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act?
(b) should the plaintiff’s Notices to Produce to the 1st and 2nd defendants dated 17/1/2017 be set aside on the grounds of s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act?

Answer:   In respect of (a) – Yes, on the basis of both provisions.
In respect of (b) – Yes, on the basis of both provisions.

Question 5: If the Notices to Produce, or any of them, are precluded by s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act:
(a)   are either or both of the sections invalid in whole or in part?
(b)   if so, can any invalid part of either section be severed and/or read down and, if so, in what way?”

Answer:   In respect of (a) – Neither is invalid either in whole or in part.
In respect of (b) – Does not arise.
2.   The applicant (Naguib Kaldas) should pay the costs of the proceedings in this Court of the first and second respondents (Bruce Barbour and the Ombudsman) and of the third respondent (Linda Waugh).
Catchwords:
ADMINISTRATIVE LAW – Ombudsman – review of Ombudsman's findings and report – scope of s 35A of Ombudsman Act 1974 (NSW) – whether power to grant leave nunc pro tunc after claim determined – whether claims fall under s 35B – whether notices to produce liable to be set aside based on s 35 of the Ombudsman Act 1974 (NSW) and s 165 of the Police Act 1990 (NSW)

CONSTITUTIONAL LAW – validity of s 35A of Ombudsman Act 1974, if it precludes review of findings of Ombudsman – whether s 35A limits the constitutionally protected jurisdiction of the Supreme Court – validity of s 35 of the Ombudsman Act 1974 and s 165 of the Police Act 1990, if they preclude issue of notices to produce – whether those provisions intrude upon the constitutionally protected jurisdiction of the Supreme Court

STATUTORY INTERPRETATION – determining questions of construction before constitutional issues – construing to full extent of power, pursuant to Interpretation Act 1987 (NSW), s 31 – privative provision – use of legislative history
WORDS AND PHRASES – “want of jurisdiction” – “thing done … for the purpose of executing this or any other Act” – Ombudsman Act 1974 (NSW), s35A
Legislation Cited: Administration of Justice Act 1924 (NSW), s 18
Australian Courts Act 1828 (Imp) (9 Geo 4 c 83), ss 3, 11
Constitution Act 1975 (Vic), s 94E
Constitution, s 73; Ch III
Chancery Procedure Act 1852 (UK), s 50
Court of Chancery Act 1841, (UK)
Criminal Justice Act 1989 (Qld), s 101
Equity Act 1880 (NSW), s 50
Equity Act 1901 (NSW), s 10
Felons (Civil Proceedings) Act 1981 (NSW), s 4
Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 20
Income Tax Assessment Act 1936 (Cth), ss 175, 177
Independent Commission Against Corruption Act 1988 (NSW), s 111
Industrial Relations Act 1996 (NSW), s 179
Interpretation Act 1897 (NSW), s 3
Interpretation Act 1987 (NSW), s 31
Law Enforcement Conduct Commission Act 2016 (NSW), s 133; Sch 1, item 13; Sch 5.1; Sch 6, item 6.35
Local Government Act 1999 (SA), s 273
Migration Act 1958 (Cth), s 474
Ombudsman (Amendment) Act 1983 (NSW)
Ombudsman (Northern Territory) Act 1980 (NT), s 31
Ombudsman Act 1974 (NSW), ss 5, 6, 6A, 7, 8, 11, 12, 13, 13AA, 15, 16, 17, 18, 19, 19A, 19B, 20, 21, 21A, 24, 25AA, 26, 26A, 27, 28, 29, 31, 31AA, 31AB, 31B, 31BA, 31A, 31B, 32, 34, 35, 35A, 35B, 35C, 37; Pt 3, Pt 3A, Pt 3B, Pt 3C, Pt 4, Pt 4A, Pt 5; Sch 1
Ombudsman Act 2001 (Qld), s 93
Ombudsman and Public Interest Disclosures Legislation Amendment Act 2014 (NSW), Sch 1
Parliamentary Commissioner (Ombudsman) Act 1962 (NZ), s 21
Parliamentary Commissioner Act 1971 (WA), ss 29, 30
Parliamentary Commissioner Amendment Act 1984 (WA), s 10
Police Integrity Act 2008 (Vic), s 109
Police Act 1990 (NSW), ss 26, 121, 122, 126, 127, 130, 132, 139, 140, 156, 157, 159, 160, 161, 165, 170, 213; Pt 8, Divs 4, 5, 6, 7, 8; Pt 8A
Privacy and Personal Information Protection Act 1998 (NSW), s 55
Public Interest Disclosures Act 1994 (NSW), ss 3, 20
Public Service Management Act 1988 (NSW)
Royal Commissions Act 1923 (NSW), Pt 2, Div 1; Pt 3, s 21
Serious and Organised Crime (Control) Act 2008 (SA)
Statute Law (Miscellaneous Provisions) Act (No 3) 1989 (NSW), Sch 1
Supreme Court Act 1970 (NSW), ss 23, 63, 69, 75
Supreme Court Act 1981 (UK), s 42(1A)
Supreme Court Rules of 1883, Order 25, r 5
Cases Cited: A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414
A1 and A2 v Brouwer (2007) 16 VR 612; [2007] VSCA 139
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Ainsworth v The Ombudsman (1988) 17 NSWLR 276
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41
Alice Springs Town Council v Watts (1982) 18 NTR 1
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; 139 ALR 663
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129; [2015] VSCA 197
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49
Batterham v QSR Limited (2006) 225 CLR 237; [2006] HCA 23
Board of Education v Rice [1911] AC 179
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961] HCA 71
Botany Council v The Ombudsman (1995) 37 NSWLR 357
Botany Council v The Ombudsman (unreported, NSWSC, Spender AJ, 16 June 1995)
Boyd v The Ombudsman [1981] 2 NSWLR 308
Boyd v The Ombudsman [1983] 1 NSWLR 620
Brown v Rezitis (1970) 127 CLR 157; [1970] HCA 56
CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2
City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1; [2014] SASC 36
Clough v Ratcliffe (1847) 1 De. G. & Sim 164
Commissioner of Police v Ombudsman (unreported, NSWSC, Sackville AJ, 9 September 1994)
Commissioner of Taxation (Cth) v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32
Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180
Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135; [2000] HCA 5
Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602; [1997] HCA 11
Dyson v Attorney General [1911] 1 KB 410; [1912] 1 Ch 158
Ellis v Duke of Bedford [1899] 1 Ch 494
Esquimalt and Nanaimo Railway Co v Wilson [1920] AC 358
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61
Gouriet v Union of Post Office Workers [1978] AC 435
Graham v Minister for Immigration and Border Protection [2017] HCA 33
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
Heery v Criminal Justice Commission [2001] 2 Qd R 610; [2000] QCA 511
Hot Holdings Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44
In the matter of an application by JR55 for Judicial Review (Northern Ireland) [2016] UKSC 22; [2016] 4 All ER 779
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
Kerr v Commissioner of Police [1977] 2 NSWLR 721
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; 341 ALR 483
Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64
Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506; [2011] FCA 787
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Moroney v The Ombudsman [1982] 2 NSWLR 591
North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595; [1996] HCA 2
Offin v Rochford Rural Council [1906] 1 Ch 342
Parker v Anti-Corruption Commission (unreported, Supreme Court of Western Australia Full Court, 31 March 1999)
Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307
Pawlett v Attorney-General (1668) Hardres 465
Plaintiff M61/201E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Public Service Association (SA) v Federated Clerks’ Union of Australia (1991) 173 CLR 132; [1991] HCA 33
Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398; [2012] HCA 25
R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53
R v Local Government Board (1882) 10 QBD 309
Re Alberta Ombudsman Act (1970) 10 DLR (3d) 47
Rooke v Lord Kensington (1856) K. & J. 753
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
State of South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39
Tavitian v Commissioner of Highways [2010] SASC 206
The King v Hibble; ex parte the Broken Hill Proprietary Company Limited (1920) 28 CLR 456; [1920] HCA 83
The King v Murray; Ex parte Proctor (1949) 77 CLR 387; [1949] HCA 10
The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCA 277
The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339
The Ombudsman v Moroney [1983] 1 NSWLR 317
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46
Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12
Tito v Waddell (No 2) [1977] Ch 106
Trives v Hornsby Shire Council (2015) 89 NSWLR 269; [2015] NSWCA 158
Walsh v Alexander (1913) 16 CLR 293; [1913] HCA 24
West v Lord Sackville [1903] 2 Ch 378
Williams v North’s Navigation Collieries [1904] 2 KB 44; [1906] AC 136
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited:
Aronson M, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017)

Borchard E, Declaratory Judgments (Hein, 2nd ed, 1941)

Commonwealth Ombudsman, First Annual Report 1978

Creyke R, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 4th ed, 2015)

Heydon J D, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015)

Holdsworth W S, History of English Law (Metheun & Co, 6th ed, 1938)

International Commission of Jurists, The Citizen and the Administration: The Redress of Grievances (1961)

Legislative Assembly (WA), Hansard, 18 November 1971

Legislative Assembly (WA), Hansard, 23 October 1984

Legislative Assembly (WA), Parliamentary Debates (Hansard), 23 September 1971

Maitland, Constitutional History of England (1955 reprint)

New Zealand Legislative Assembly, Parliamentary Debates (Hansard (NZ)), 25 July 1962

Spigelman J J, “The Integrity Branch of Government” (2004) 78 ALJ 724

Tasmanian Ombudsman, Annual Report 2003/2004, Appendix C

The Oxford History of the Laws of England, Vol 11, Pt 2 – Public Law

Wade H W R & C F Forsyth, Administrative Law (Oxford UP, 11th ed, 2014)

Woolf and Woolf, Zamir and Woolf – The Declaratory Judgment (Street & Maxwell, 2nd ed, 1993)
Woolf and Woolf, Zamir and Woolf – The Declaratory Judgment (Sweet & Maxwell, 3rd ed, 2002)
Category: Principal judgment
Parties: Naguib (Nick) Kaldas (Plaintiff)
Bruce Barbour (First Defendant)
Ombudsman NSW (Second Defendant)
Linda Waugh (Third Defendant)
New South Wales Attorney General (Intervener)
Representation:
Counsel:
A R Moses SC / R L Gall (Plaintiff)
J K Kirk SC / P Herzfeld / C Winnett (First and Second Defendants)
R P Lancaster SC / J E Taylor (Third Defendant)
M G Sexton SC / B K Lim (New South Wales Attorney General)
Solicitors:
William Roberts Lawyers (Plaintiff)
Ashurst Australia (First and Second Defendants)
Addisons (Third Defendant)
Solicitor General (New South Wales Attorney General)

File Number(s): 2016/365973

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiff, Naguib (Nick) Kaldas, sought declaratory and injunctive relief against the defendants arising out of a report of the NSW Ombudsman. The defendants challenged the jurisdiction of the Court to hear the claims made by the plaintiff. Section 35A(1) of the Ombudsman Act 1974 (NSW) provided that the Ombudsman was not liable to any civil or criminal proceedings except in cases involving bad faith. Section 35A(2) provided that proceedings could not be brought without the leave of the Supreme Court. Section 35(1) provided that the Ombudsman was not competent or compellable to give evidence or produce any document in any legal proceedings in respect of any information obtained in the course of their office. Section 165(1) of the Police Act 1990 (NSW) was in similar terms to s 35(1) of the Ombudsman Act.

Five questions were referred to the Court of Appeal for its consideration:

1. Whether the plaintiff’s claims were precluded by s 35A(1) of the Ombudsman Act and whether the Court had power to grant leave pursuant to s 35A(2) nunc pro tunc following a hearing on the merits under s 35A(1).

2. Whether, if the plaintiff’s claims were precluded by s 35A, it was invalid because of the doctrine in Kirk v Industrial Relations Commission (2010) 239 CLR 531, and if so, whether any invalid part could be severed and/or read down.

3. Whether any of the plaintiff’s claims were made pursuant to s 35B of the Ombudsman Act.

4. Whether the plaintiff’s Notices to Produce should be set aside on the grounds of s 35(1) of the Ombudsman Act and/or s 165 of the Police Act.

5. If the Notices to Produce were precluded by s 35(1) and/or s 165, whether the sections were invalid and if any invalid part could be severed and/or read down.

The Court held (Bathurst CJ; Basten JA; Macfarlan JA):

Question 1:

(i) The plaintiff’s claims are wholly precluded by s 35A(1) of the Ombudsman Act: [204] (Bathurst CJ); [379] (Basten JA); [380] (Macfarlan JA).

a. The immunity granted by s 35A extends to proceedings in the supervisory jurisdiction of the Court. The term “want of jurisdiction” does not readily identify the basis of any civil claim other than one made in the context of judicial review. If s 35A did not extend to proceedings in the supervisory jurisdiction, s 35B would be unnecessary: [314]-[320] (Basten JA); [380] (Macfarlan JA).

b. The supervisory jurisdiction of the Court cannot be invoked after the Ombudsman has completed the statutory functions of investigation and reporting, to set aside specific findings in a report: [345] (Basten JA); [380] (Macfarlan JA).

Ainsworth v The Ombudsman (1988) 17 NSWLR 276; Commissioner of Police v Ombudsman (unreported, NSWSC, Sackville AJ, 9 September 1994) applied.

c. The term “liable” in s 35A means liable to suit. The words “want of jurisdiction” demonstrate an intention by the legislature to exclude public law remedies. The language of the section does not permit it to be read down so as not to apply to judicial review for jurisdictional error: [115]-[144] (Bathurst CJ).

Ainsworth v The Ombudsman (1988) 17 NSWLR 276; Commissioner of Police v Ombudsman (unreported, NSWSC, Sackville AJ, 9 September 1994); Botany Council v The Ombudsman (unreported, NSWSC, Spender AJ, 16 June 1995) applied.

d. The section is not capable of being read as expanding the scope of non-jurisdictional error, so as to limit jurisdictional error to acts or omissions in bad faith. It would require clear words to construe a statutory provision as providing that errors except those in bad faith are not jurisdictional: [145] (Bathurst CJ).

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 applied.

(ii) (per Bathurst CJ) It is unnecessary to answer the question of whether the Court has power to grant leave nunc pro tunc: [204].

(iii) The Court does not have the power to grant leave nunc pro tunc: [379] (Basten JA); [380] (Macfarlan JA).

Question 2:

(iv) (per Bathurst CJ) Section 35A is not invalid to the extent it precludes the plaintiff’s claims. The power to grant a declaration in aid of its supervisory jurisdiction is not a defining characteristic of the Supreme Court in the sense described in Kirk: [152]-[197].

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 considered.

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 distinguished.

(v) Section 35A is not invalid on the ground that it exceeds the power of the State Parliament as constrained by Chapter III of the Constitution: [379] (Basten JA); [380] (Macfarlan JA). Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 identified an irreducible characteristic of State Supreme Courts by reference to what was understood to be the scope of the supervisory jurisdiction in 1901. Further restraints on the legislative power of State Parliaments can only be imposed on a similar principled basis and none were identified in the present case. The impugned provisions are not invalid: [346]-[361] (Basten JA); [308] (Macfarlan JA).

Trives v Hornsby Shire Council (2015) 89 NSWLR 269; [2015] NSWCA 158 applied.

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 distinguished.

Question 3:

(vi) None of the plaintiff’s claims is made pursuant to s 35B: [204] (Bathurst CJ); [379] (Basten JA); [380] (Macfarlan JA).

a. Section 35B is not subject to a temporal limitation. However, it is confined in terms to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation. The section does not confer a right to challenge decisions made during the course of an investigation such as a denial of procedural fairness: [147]-[149] (Bathurst CJ); [380] (Macfarlan JA).

b. (per Basten JA) It may have been open to the applicant to challenge the jurisdiction of the Ombudsman pursuant to s 35B during the course of the investigation. Section 35B does not envisage a challenge after the completion of an investigation: [367].

Question 4:

(vii) (per Bathurst CJ) It is unnecessary to answer this question: [204].

(viii) The Notices to Produce should be set aside on the basis of both s 35(1) of the Ombudsman Act and s 165(1) of the Police Act: [379] (Basten JA); [380] (Macfarlan JA).

Question 5:

(ix) (per Bathurst CJ) It is unnecessary to answer this question: [204].

(x) Neither s 35(1) of the Ombudsman Act nor s 165(1) of the Police Act are invalid: [379] (Basten JA); [380] (Macfarlan JA). It is difficult to see how the control imposed by s 35 could be said to prevent the Court exercising the presumptively available supervisory jurisdiction: [377] (Basten JA); [380] (Macfarlan JA).

A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414 applied.

Judgment

BATHURST CJ: By a further amended summons dated 13 February 2017, the plaintiff, Mr Naguib (Nick) Kaldas, sought certain declaratory and injunctive relief against the defendants arising out of a report by the NSW Ombudsman (the Report), resulting from an investigation known as “Operation Prospect”.
The defendants challenged the jurisdiction of the Court to hear the claims made by the plaintiff. In the circumstances, Garling J referred five questions to this Court for its consideration. The questions are set out in [10] below.

Background

Operation Prospect commenced in October 2012, and culminated after four years in the Report the subject of the current proceedings. The investigation was the single largest of its kind undertaken by an Ombudsman in Australia. Essentially, the Operation investigated allegations concerning a broad range of conduct connected to operations of the NSW Crime Commission (NSWCC), known as Mascot I and Mascot II, and an operation of the Police Integrity Commission, known as Florida. The breadth of the investigation included inquiries in relation to: the use of false and misleading information in warrant applications and supporting affidavits, improper targeting or investigation of individuals, mishandling of informants/undercover operatives, unlawful and/or improper dissemination of material from hardcopy files and/or the computer systems of the NSW Police Force, the NSW Crime Commission and/or the Inspector of the Police Integrity Commission, improper interference, the provision of misinformation and/or making false statements and other wrong conduct.
The complaints of the plaintiff in relation to the Report relate to three findings made in relation to the plaintiff. These were as follows. The first related to the plaintiff’s conduct in requesting or receiving NSW Police Force information on three occasions, which the Ombudsman found was unreasonable conduct in terms of s 122(1)(d)(i) of the Police Act 1990 (NSW), and that the plaintiff should have recognised that his request for and receipt of information in the manner that occurred did not comply with the requirements of the NSW Police Force Code of Conduct and Conflict of Interests Policy. The second related to a finding that the plaintiff’s failure to record and report that he anonymously received confidential NSWCC and NSW Police Force documents in August to September 2012, was unreasonable conduct in terms of s 122(1)(d)(i) of the Police Act, and that he should have reacted in a more formal and considered manner to having received confidential law enforcement information that had “quite clearly” been disseminated in an unauthorised manner. The third related to the plaintiff’s evidence to Operation Prospect, which the Ombudsman found may be conduct that constitutes an offence in terms of s 122(1)(a) of the Police Act, the relevant offence being giving false and misleading testimony under s 21(1) of the Royal Commissions Act 1923 (NSW).
The first finding related to requests made by the plaintiff to access material about inquiries undertaken by the NSW Police Force into the operations of Special Crime and Internal Affairs, as reported in a media article appearing in the Sun Herald newspaper on 29 August 2010. The second finding related to the plaintiff’s disclosure that he had received documents anonymously. Receipt of these documents was mentioned in a public interest disclosure made by the plaintiff on 13 September 2002, in the form of a formal complaint of illegal actions by members of the former Special Crime and Internal Affairs division, and a request for an independent judicial inquiry. That disclosure, inter alia, alleged there was “systemic, widespread false swearing of affidavits to obtain listening device and telephone intercept warrants” for the plaintiff and those associated with him. The disclosure stated that the plaintiff had received “material from an anonymous source” which proved, inter alia, that false information was used in swearing affidavits, clear conflicts of interest were ignored, the plaintiff was inappropriately bugged and complaints made by the plaintiff were conveyed to those complained about. Written submissions on the same issues were made to the Ombudsman on 9 July 2013. The third finding related to evidence given by the plaintiff to the Ombudsman pursuant to a summons served on 18 August 2014. The relevant portion of that evidence involved an initial denial that the plaintiff had received NSWCC documents from a NSWCC officer. However, that evidence was then altered to the effect that the plaintiff stated he had been shown and given documents when visiting that officer’s home.
It should be noted the first defendant was the Ombudsman at the time Operation Prospect was initiated in August 2012. He was responsible for the investigation until August 2015. Thereafter, the second defendant was responsible for the conclusion of the investigation, the preparation of the Report and its delivery to Parliament pursuant to s 31 of the Ombudsman Act 1974 (NSW) and s 161 of the Police Act.
The third defendant was the Deputy Ombudsman at the date of the Report and undertook certain tasks relating to Operation Prospect in that capacity. She ceased to hold the office of Deputy Ombudsman on 6 January 2017.

The claims made by Mr Kaldas

The further amended summons made 20 claims for relief. The ones relevant to these proceedings may be summarised for present purposes as follows:

A declaration that the Report on Operation Prospect was ultra vires so far as it included any findings about the plaintiff (Prayer 1). The basis of this claim and that made in Prayer 2 (see (b) below) was that the investigation, so far as it concerned the plaintiff, was in respect of police conduct and on the proper construction of the Ombudsman Act and the Police Act the only power conferred on the Ombudsman to make findings and issue a report in those circumstances was that conferred by s 26 of the Ombudsman Act, which could only be made to persons specified in s 26(3) and s 26(4) of that Act and, in particular, there was no power to provide a report to the presiding officer of each House of Parliament other than pursuant to s 161 of the Police Act, or make findings in a report under s 161 including, in particular, findings of guilt.

A declaration that the Report so far as it included the findings referred to in Prayer 1 was a nullity (Prayer 2).

A declaration that the plaintiff was denied natural justice in relation to the adverse findings made against him (Prayer 9).

A declaration that the decision of the first defendant to convene a hearing held on 5 September 2014, and to take evidence from the plaintiff, was invalid because it might reasonably be apprehended the first defendant might have been biased against the plaintiff when the decision was taken, and the hearing was a reprisal against the plaintiff for the plaintiff having made a protected disclosure within the meaning of the Public Interest Disclosures Act 1994 (NSW) (Prayer 10).

A declaration that so much of the questioning of the plaintiff at a hearing convened pursuant to s 19 of the Ombudsman Act and held on 5 September 2014, to take evidence about the plaintiff’s contact with journalists and the provision of documents to the plaintiff referred to in [5] above, was not supported by any valid decision to conduct an investigation for the purpose of which a hearing could be held (Prayer 11). The particulars of this claim stated the matters in question were not relevant to any investigation.

A declaration that the plaintiff had no jurisdiction to make a finding the plaintiff had given false evidence in a hearing held pursuant to s 19 of the Ombudsman Act (Prayer 12).

A declaration that the first defendant was biased against the plaintiff or that there was a reasonable apprehension he was so biased (Prayer 12A, 13).

A declaration that there was a reasonable apprehension that the third defendant was biased against the plaintiff (Prayer 14).

A declaration that the decision of the second defendant which failed to conclude that the third defendant should have no involvement with the investigation because of her apprehended bias was manifestly unreasonable (Prayer 15).

An order restraining the second defendant from making any findings or report concerning or in relation to the plaintiff in respect of Operation Prospect (Prayer 16).

An order directing the second defendant to remove the Report from the Ombudsman’s website (Prayer 16A).

The further amended summons contains a number of other claims for relief but it is unnecessary to refer to them.

The questions referred to the Court of Appeal

As I indicated, the defendants dispute the Court’s jurisdiction. In those circumstances, Garling J referred the following questions to the Court of Appeal:

“1. Assuming s 35A of the Ombudsman Act 1974 is valid:
(a) are the claims in the Further Amended Summons filed 13/2/2017 precluded in whole or in part by s 35A(1)?
(b) does this Court have power to grant leave pursuant to s 35A(2) nunc pro tunc following a hearing on the merits of the Further Amended Summons?

2. If the claims in the Further Amended Summons are precluded, in whole or in part, by s 35A(1):
(a) is s35A invalid on the grounds of the doctrine in Kirk v Industrial Relations Commission (2010) 239 CLR 531?;
(b) if so can any invalid part of s35(A) [sic: s35A] be severed and/or read down and, if so, in what way?

3. Which, if any, claims in the Further Amended Summons are made pursuant to s35B(1) of the Ombudsman Act?
4. Assuming s35 of the Ombudsman Act and /or s165 of the Police Act 1990 are valid:
(a) should the Notice to Produce issued to the 2nd defendant dated 6/12/2016 be set aside on the ground of s35(1) of the Ombudsman Act and/or s165(1) of the Police Act?
(b) should the plaintiff’s Notices to Produce to the 1st and 2nd defendants dated 17/1/2017 be set aside on the grounds of s 35(1) of the Ombudsman Act and /or s165(1) of the Police Act?

5. If the Notices to Produce, or any of them, are precluded by s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act:
(a) are either or both of the sections invalid in whole or in part?
(b) if so, can any invalid part of either section be severed and/or read down and, if so, in what way?”

The first Notice to Produce referred to in Question 4 is a Notice to Produce addressed to the second defendant seeking documents including a report from a Dr Vivienne Thom into any complaint regarding the relationship between the second defendant and a Mr John Pritchard, documents concerning a relationship between the third defendant and Mr Pritchard, documents relating to an allegation of misconduct of the third defendant in relation to the plaintiff, and transcripts of evidence given by Mr Andrew Scipione and Mr Malcolm Brammer for the purpose of Operation Prospect.
The second Notice to Produce called on the first defendant to produce documents relating to meetings between him and Mr Scipione on specified dates and all documents recording communications between him and Mr Scipione concerning Operation Prospect and/or the plaintiff.
The third Notice to Produce addressed to the second defendant required production of the documents referred to in the second Notice to Produce as well as a large number of other documents relating to findings or comments made in certain sections of the Operation Prospect Report.
It should be noted that none of the questions referred to the Court of Appeal involved consideration of the substantive merits of any of the claims or, whether even if Question 4 is answered in the negative, the Notices to Produce should otherwise be set aside.

The relevant legislation

It is convenient to set out the relevant legislation prior to dealing with the referred questions.

a The Ombudsman Act

Section 6(1) of the Ombudsman Act provides that the Governor may on the recommendation of the Minister appoint an Ombudsman. Section 6(2) provides that he or she may hold office for a period not exceeding seven years. Section 6(8) provides that the Ombudsman may exercise the functions conferred or imposed on the Ombudsman by the Ombudsman Act or any other Act.
Section 6A of the Ombudsman Act provides a person is not to be appointed unless the person has been referred to the Parliamentary Joint Committee established under Pt 4A of the Act. The Committee has the power under s 31BA to veto the appointment.
Section 7 of the Act provides for the appointment of an Acting Ombudsman, while s 8 provides for a Deputy Ombudsman.
Section 12 of the Act gives any person (including a public authority) the right to complain to the Ombudsman about the conduct of a public authority, subject to certain exceptions which are not relevant for present purposes.
The expression “public authority” is defined in s 5 of the Act in the following terms:

“public authority means:
(a)   any person appointed to an office by the Governor,
(b)   any statutory body representing the Crown,
(c)   any Public Service agency or any person employed in a Public Service agency,
(d)   any person in the service of the Crown or of any statutory body representing the Crown,
(d1) any person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013.
…”

Section 13 empowers the Ombudsman to conduct investigations under the Act. Section 13(1) provides as follows:

“(1) Where it appears to the Ombudsman that any conduct of a public authority about which a complaint may be made under section 12 may be conduct referred to in section 26, the Ombudsman may, whether or not any person has complained to the Ombudsman about the conduct, make the conduct the subject of an investigation under this Act.”

Section 13AA empowers the Ombudsman to make preliminary inquiries for the purpose of deciding whether to make particular conduct of a public authority the subject of an investigation, whilst s 13A empowers the Ombudsman to attempt to deal with a complaint by conciliation.
Sections 16-24 confer certain powers and obligations in connection with the conduct of an investigation. So far as relevant they provide as follows:

“16    Notice of investigation
(1)   Upon the Ombudsman deciding to make the conduct or police conduct of a public authority the subject of an investigation under this Act, the Ombudsman shall give notice of the decision:
(a)   where there is a complainant, to the complainant,
(b)   to the head of the public authority and, if practicable, to the public authority, and
(c)   as prescribed.

(2)   A notice under this section must be in writing, must describe the conduct or police conduct the subject of the investigation and must, so far as practicable, identify the public authority.
17   Privacy
An investigation under this Act shall be made in the absence of the public.
18   Public authority to give information etc
(1)   For the purposes of an investigation under this Act, the Ombudsman may require a public authority:
(a)   to give the Ombudsman a statement of information,
(b)   to produce to the Ombudsman any document or other thing, or
(c)   to give the Ombudsman a copy of any document.

(2)   A requirement under this section must be in writing, must specify or describe the information, document or thing required, and must fix a time and specify a place for compliance.
19    Inquiries
(1)   In an investigation under this Act, the Ombudsman may make or hold inquiries.
(2) For the purposes of any inquiry under this section, the Ombudsman has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and that Act (section 13 and Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before the Ombudsman in the same way as it applies to a witness summoned by or appearing before a commissioner, but section 11 (2) of that Act shall have effect subject to section 21 of this Act.
…
19A   Restriction on publication of evidence
(1)   Direction regarding publication
The Ombudsman may direct that:
(a)   any evidence given before an inquiry held by the Ombudsman, or
(b)   the contents of any document, or a description of any thing, produced to the Ombudsman, or
(c)   any information that might enable a person who has given or may be about to give evidence before an inquiry to be identified or located, or
(d)   the fact that any person has given or may be about to give evidence before an inquiry,

must not be published, or must not be published except in such manner, and to such persons, as the Ombudsman specifies.
(2)   Public interest
The Ombudsman is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest.
(3)   Offence
A person must not make a publication in contravention of a direction given under this section.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(4)    Definition
In this section and sections 19B and 19C, inquiry means an inquiry held under section 19.
19B   Publication of evidence given at inquiry
(1)   A person who was present at an inquiry must not publish, or permit to be published, any evidence given before the inquiry or any of the contents of a document produced at the inquiry, except to the Ombudsman, an officer of the Ombudsman or an Australian legal practitioner appointed under section 19 (4) or as permitted by the Ombudsman or the regulations.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
…
21   Limits on secrecy and privilege
(1)   This section applies if, in an investigation under this Act or an inquiry under section 19, the Ombudsman requires any person:
(a)   to give any statement of information, or
(b)   to produce any document or other thing, or
(c)   to give a copy of any document, or
(d)   to answer any question.

(2)   The Ombudsman must set aside the requirement if it appears to the Ombudsman that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist a like requirement and it does not appear to the Ombudsman that that person consents to compliance with the requirement.
(3)   The requirement may however be made despite, and is not required to be set aside because of:
(a)   any rule of law which, in proceedings in a court of law, might justify an objection to compliance with a like requirement on grounds of public interest, or
(b)   any privilege of a public authority which the public authority might claim in a court of law, or
(c)   any duty of secrecy or other restriction on disclosure applying to a public authority or a former public authority.

21A    Privilege as regards entry and inspections on public premises
(1)   The Ombudsman must not exercise powers under section 20 if it appears to the Ombudsman that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist inspection of the premises or document or thing or production of the document or thing and it does not appear to the Ombudsman that that person consents to the inspection or production.
(2)   The powers may however be exercised despite:

(a)   any rule of law which, in proceedings in a court of law, might justify an objection to an inspection of the premises or document or thing or to production of the document or thing on grounds of public interest, or
(b)   any privilege of a public authority which the public authority might claim in a court of law, or
(c)   any duty of secrecy or other restriction on disclosure applying to a public authority.

…
24    Persons to be heard
(1)   In an investigation under this Act, the Ombudsman shall give an opportunity to make submissions on the conduct or police conduct the subject of the investigation:
(a)   if practicable, to the public authority whose conduct or police conduct it is, and
(b) to any other person given notice under section 16.

(2)   Where, in an investigation under this Act, the Ombudsman considers that there are grounds for adverse comment in respect of any person, the Ombudsman, before making any such comment in any report, shall, so far as practicable:
(a)   inform that person of the substance of the grounds of the adverse comment, and
(b)   give the person an opportunity to make submissions.

(3) Subsection (2) does not apply in relation to a report under section 28.”

Part 4 of the Act deals with reports. Section 25AA provides that Pt 4 with the exception of s 29 does not apply to an investigation under the Act of police conduct. Police conduct is defined as conduct of a police officer within the meaning of Pt 8A of the Police Act.
Section 26 deals with the report of an investigation. It is in the following terms:

“26   Report of investigation
(1)   Where, in an investigation under this Act, the Ombudsman finds that the conduct the subject of the investigation, or any part of the conduct, is of any one or more of the following kinds:
(a)   contrary to law,
(b)   unreasonable, unjust, oppressive or improperly discriminatory,
(c)   in accordance with any law or established practice but the law or practice is, or may be, unreasonable, unjust, oppressive or improperly discriminatory,
(d)   based wholly or partly on improper motives, irrelevant grounds or irrelevant consideration,
(e)   based wholly or partly on a mistake of law or fact,
(f)   conduct for which reasons should be given but are not given,
(g)   otherwise wrong,

the Ombudsman is to make a report accordingly, giving his or her reasons.
(2)   In a report under this section, the Ombudsman may recommend:
(a)   that the conduct be considered or reconsidered by the public authority whose conduct it is, or by any person in a position to supervise or direct the public authority in relation to the conduct, or to review, rectify, mitigate or change the conduct or its consequences,
(b)   that action be taken to rectify, mitigate or change the conduct or its consequences,
(c)   that reasons be given for the conduct,
(d)   that any law or practice relating to the conduct be changed,
(d1)   that compensation be paid to any person, or
(e)   that any other step be taken.

(3)   The Ombudsman shall give a report under this section:
(a)   to the responsible Minister,
(b)   to the head of the public authority whose conduct is the subject of the report, and
(c)   where the public authority is a Public Service employee, to the Department of Premier and Cabinet.

(4)   The Ombudsman may give a copy of a report under this section:
(a)   where the investigation arises out of a complaint to the Ombudsman, to the complainant,
(b)   to the public authority to whose conduct the report relates.

(5) The person to whom a report is given under subsection (3) (b) may, and on request by the Ombudsman shall, notify the Ombudsman of any action taken or proposed in consequence of a report under this section.”

Section 26A deals with recommendations to pay compensation. So far as relevant it provides as follows:

“26A    Authority to pay compensation
(1)   If the Ombudsman recommends in a report under section 26 that compensation be paid to a person by a person other than a local government authority, the responsible Minister:
(a)   at the request of the head of the public authority whose conduct is the subject of the report, and
(b)   with the concurrence of the Treasurer,

may authorise the payment of compensation to the person out of the appropriate fund.”

Section 27 deals with a situation where the Ombudsman is dissatisfied with the steps taken as a consequence of his or her report. It is in the following terms:

“27    Default in consequent action
(1)   Where the Ombudsman is not satisfied that sufficient steps have been taken in due time in consequence of a report under section 26, the Ombudsman may make a report to the Presiding Officer of each House of Parliament and must also provide the responsible Minister with a copy of the report.
(2)   The responsible Minister must make a statement to the House of Parliament in which the Minister sits in response to the report not more than 12 sitting days after the report is made to the Presiding Officer.”

Section 28 deals with serious misconduct. It is in the following terms:

“28   Serious misconduct
Where the Ombudsman is of the opinion that a public authority is or may be guilty of misconduct in the course of his or her functions to such an extent as, in the opinion of the Ombudsman, may warrant dismissal, removal or punishment, the Ombudsman shall report the opinion:
(a)   to the responsible Minister,
(b)   to the head of the public authority, and
(c)   where the public authority is a Public Service employee, to the Department of Premier and Cabinet,

giving reasons for the opinion.”

Section 31 empowers the Ombudsman to make a special report to Parliament. Relevantly it provides as follows:

“31 Special report to Parliament
(1) The Ombudsman may, at any time, make a special report to the Presiding Officer of each House of Parliament and must also provide the Minister with a copy of the report on any matter arising in connection with the discharge of the Ombudsman’s functions.”

Section 31AA provides that a copy of a report made to the Presiding Officer of a House of Parliament must be laid before the House on the next sitting day after it is received, whilst s 31AB provides that the Ombudsman may at any time furnish information obtained in discharging his or her function to the Director of Public Prosecutions or to the Independent Commission Against Corruption (ICAC).
Part 4A deals with the Parliamentary Joint Committee. I have already referred to its power to veto appointments contained in s 31BA. Section 31B provides for its functions which might be described as supervising the activities of the Ombudsman. So far as relevant it provides as follows:

“31B    Functions
(1)   The Joint Committee has the following functions under this Act:
(a)   to monitor and to review the exercise by the Ombudsman of the Ombudsman’s functions under this or any other Act,
(b)   to report to both Houses of Parliament, with such comments as it thinks fit, on any matter appertaining to the Ombudsman or connected with the exercise of the Ombudsman’s functions to which, in the opinion of the Joint Committee, the attention of Parliament should be directed,
(c)   to examine each annual and other report made by the Ombudsman, and presented to Parliament, under this or any other Act and to report to both Houses of Parliament on any matter appearing in, or arising out of, any such report,
(d)   to report to both Houses of Parliament any change that the Joint Committee considers desirable to the functions, structures and procedures of the Office of the Ombudsman,
(e)   to inquire into any question in connection with the Joint Committee’s functions which is referred to it by both Houses of Parliament, and to report to both Houses on that question.”

Sections 35 to 35C are critical to the issues raised by the separate questions. They provide as follows:

“35    Ombudsman, officer or expert as witness
(1)   The Ombudsman shall not, nor shall an officer of the Ombudsman who is not a member of the Police Force, be competent or compellable to give evidence or produce any document in any legal proceedings in respect of any information obtained by the Ombudsman or officer in the course of the Ombudsman’s or officer’s office.
(2)   Subsection (1) does not apply to any of the following:
(a) proceedings under section 21A, 35A, 35B or 37,
(b) proceedings under Part 3 of the Royal Commissions Act 1923
(c) proceedings under Part 4 of the Special Commissions of Inquiry Act 1983,
(d) proceedings under Part 5 of the Government Information (Public Access) Act 2009 arising as a consequence of a decision made by the Ombudsman in respect of an access application under that Act,
(e) proceedings under section 167A of the Police Act 1990,
(f) proceedings under section 20 or 20B of the Public Interest Disclosures Act 1994,
(g)   criminal proceedings resulting from an investigation under this Act, but only if the investigation related (whether or not entirely) to a matter referred by the Inspector of the Police Integrity Commission, or the Inspector of the Crime Commission, to the Ombudsman for investigation.

(3)   Subsection (1) applies to the following persons in the same way as it applies to the Ombudsman and officers of the Ombudsman:
(a)   a former Ombudsman,
(b)   a former officer of the Ombudsman,
(c)   an Australian legal practitioner who is or was appointed under section 19 (4) to assist the Ombudsman,
(d) a person whose services are or were engaged under section 23.

(4)   Subsection (3) extends to information obtained by those persons before its substitution by the Ombudsman and Public Interest Disclosures Legislation Amendment Act 2014.
(5)   The Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission is to review the operation of subsections (3) and (4) as soon as possible after 5 March 2016.
35A   Immunity of Ombudsman and others
(1)   The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.
(2)   Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.
(3)   The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.
(4)   An Australian legal practitioner assisting the Ombudsman or representing a person at an inquiry held by the Ombudsman has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.
35B   Application to Supreme Court
(1)   Where any question arises as to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation (whether under this or any other Act), the Ombudsman, or any interested party, may apply to the Supreme Court for a determination of that question.
(2)   On an application made under subsection (1) the Supreme Court may make such order as it considers appropriate.
(3)   For the purposes of subsection (1), the following persons are interested parties:
(a)   the public authority the conduct of which is the subject of the investigation or proposed investigation,
(b)   the head of that public authority,
(c) if the investigation arises from the making of a complaint under section 12 (1), the complainant.

(3A) For the purposes of subsection (1), the following persons are interested parties in relation to the investigation of a community services complaint within the meaning of Part 4 of the Community Services (Complaints, Reviews and Monitoring) Act 1993:
(a)   a service provider or a provider of a visitable service that is the subject of the investigation or proposed investigation,
(b)   the chief executive or principal officer of that service provider or service,
(c)   if the investigation arises from the making of a complaint under that Act, the complainant.

(4)   This section has effect notwithstanding section 35A.
35C   Referral of legal question to Civil and Administrative Tribunal for advisory opinion
(1)   The Ombudsman may refer to the Civil and Administrative Tribunal for the opinion of the Tribunal any legal question arising out of any decision made in the exercise of any of the functions of an agency that the Ombudsman is investigating, but only if the exercise of the function is an administratively reviewable decision within the meaning of the Administrative Decisions Review Act 1997.
(2)   On any such referral (and despite any contrary provisions of the Civil and Administrative Tribunal Act 2013), the Tribunal may hold such hearings (if any) and inform itself in such manner as it thinks appropriate for the purpose of determining the proceedings for an opinion.
(3)   The decision of the Tribunal on any such referral does not operate as a binding declaration of right.
(4)   In this section:
agency includes a service provider or a provider of a visitable service within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993.”

b Legislative history

In the Second Reading Speech for the Ombudsman Bill 1974 (NSW), the relevant Minister made the following remarks:

“It is necessary for governments in 1974 to give due recognition to the uniqueness of the individual citizen’s problem in a modern complex and largely urbanized society. It is not possible for the same government official always to deal with the same type of problem. Thus people of differing quality will be making decisions. Moreover, it seems to me that perhaps one of the great hang-ups in administration is reliance on the concept of precedent. Certainly, no two cases could be said to be identical. What is hoped for is that each decision will be, and will be seen to be, a just and fair one in the total circumstances. Because of the factors to which I have been referring there is a need for an independent official who will approach in a consistent way, having regard to justice and the merits of each individual case, complaints made to him on administrative decisions.
Let me emphasize, if emphasis is needed, that the Ombudsman proposed for New South Wales, as with ombudsmen in other parts of the world, does not reverse administrative decisions of public authorities. He makes no executive decisions but if he believes the decision was wrong, seeks to persuade the decision-maker that the decision should be changed. The concept of ministerial responsibility is not denied and if, despite the reasons advanced by the Ombudsman, the decision is affirmed by the original decision maker, then that remains the decision. The responsible Minister may however, in the light of a subsequent report to Parliament, feel obliged to justify the original decision. Doubtless on many occasions he would be in a position to justify that decision.”

Sections 35A and 35B were introduced into the Act by the Ombudsman (Amendment) Act 1983 (NSW). Prior to that amendment, two cases raised the question of whether the Court had power to grant declaratory relief against the Ombudsman. In Boyd v The Ombudsman [1981] 2 NSWLR 308 a declaration was sought that in the circumstances of that case the Ombudsman had no power to require or request the Commissioner for Police to carry out a further investigation into a police officer. Rogers J decided the case on the merits. Rogers J referred (at 312) to the reasoning of Stephen J in R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 475, that the report of a Royal Commission to the Minister neither directly affected nor subjected a right of the applicant to a new hazard, and that the prospect of ministerial intervention as a result of the report was not sufficient to justify curial intervention by way of certiorari. Rogers J then noted that the fact that the Ombudsman’s report may not, of its own force, affect the rights of a member of the police force, may in an analogous way affect the standing of the plaintiff to seek a declaration.
On appeal, in Boyd v The Ombudsman [1983] 1 NSWLR 620, Rogers J’s decision on the merits was affirmed by the majority. Street CJ who formed part of the majority, stated however (at 627-8) that he saw no reason why the police officer did not have the requisite standing to bring the proceedings. Hutley JA who dissented, would have made the declaration sought (at 634).
In Moroney v The Ombudsman [1982] 2 NSWLR 591, Lee J made an order in the nature of mandamus on the application of a police officer requiring the Ombudsman to furnish a report that a complaint had not been substantiated, and related declarations. The Ombudsman had originally furnished a report stating that he was unable to determine whether or not the complaint was sustained. On appeal (The Ombudsman v Moroney [1983] 1 NSWLR 317), the decision of Lee J was reversed on the merits. The majority in those circumstances did not consider the question of the Court’s power to grant such relief. However, Hutley JA in dissent was prepared to set aside the report and grant declaratory relief: at 340, 341.
In that context, ss 35A and 35B were enacted. In the Second Reading Speech the Premier made the following remarks:

“Item (10) makes it clear that the Ombudsman is generally exempt from producing documents as well as being exempt from giving evidence in legal proceedings. This will eliminate the anomaly that, though the Ombudsman and officers are immune from being required to give evidence in legal proceedings, they may be compelled to produce documents. Again in this item there is a machinery reference to special commissions of inquiry. The result is that the Ombudsman will be authorized to disclose information and give evidence in proceedings under the Special Commissions of Inquiry Act just as in similar proceedings under the Royal Commissions Act. Item (11) inserts a new section 35A and 35B. New section 35A will confer on the Ombudsman immunity from civil and criminal proceedings except in respect of acts or omissions done in bad faith. The conferment on the Ombudsman of protection from legal actions will bring New South Wales into line with the law in other States and the Commonwealth. Section 35B provides that applications may be made to the Supreme Court by the Ombudsman or an interested party to determine questions of the Ombudsman’s jurisdiction to conduct an investigation.”

b The Police Act

Part 8A of the Police Act deals with complaints concerning police officers. The following definitions contained in s 121 of that Act are of relevance:

“conduct of a police officer means any action or inaction (or alleged action or inaction) of a police officer:
(a)   whether or not it also involves non-police participants, and
(b)   whether or not it occurs while the police officer is officially on duty, and
(c)   whether or not it occurs outside the State or outside Australia.

investigating authority means the Commissioner, the Police Integrity Commission or the Ombudsman.
notifiable complaint means any complaint that (in accordance with guidelines agreed between the Police Integrity Commission and the Ombudsman after consultation with the Commissioner) is required to be notified to the Ombudsman.
Ombudsman’s special report means a special report referred to in section 160.”

Division 2 of Pt 8A sets out the procedure for making complaints. Section 126 gives any person the right to complain about the conduct of a police officer, whilst s 127(4) provides for a complaint to be made to the Ombudsman. Sections 130 and 132 deal with the interrelationship between the Ombudsman and the Police Commissioner on receipt of a complaint. Section 130 requires the Commissioner, as soon as practicable after receiving a notifiable complaint, to cause a copy of the complaint to be sent to the Ombudsman, while s 132 provides that as soon as practicable after receiving a complaint, the Ombudsman must refer the complaint to the Commissioner unless he or she is of the view that it is not in the public interest to do so.

Division 5 of Pt 8A provides for the investigation of complaints by the Police Commissioner. Section 139 of the Police Act provides as follows:

“139 Decision of Commissioner as to investigation of complaint
(1)   This section applies to and in respect of complaints received by the Commissioner, including complaints referred to the Commissioner by some other person or body (other than the Ombudsman), but does not apply to or in respect of complaints that (in accordance with guidelines agreed between the Police Integrity Commission and the Ombudsman after consultation with the Commissioner) do not need to be investigated.
(2)   The Commissioner may decide that the complaint should be, or does not need to be, investigated.
(3)   If the Commissioner decides that the complaint should be investigated, the Commissioner:
(a)   must notify the Ombudsman and the complainant of the decision, and
(b)   must cause the complaint to be investigated.

(4)   If the Commissioner decides that the complaint does not need to be investigated, the Commissioner:
(a)   must notify the Ombudsman and the complainant of the decision, and
(b)   may, if of the opinion that it is appropriate to do so, notify the police officer whose conduct is the subject of the complaint of the decision.

(5)   If the Ombudsman disagrees with the Commissioner’s decision that the complaint does not need to be investigated:
(a)   the Ombudsman must notify the Commissioner and the complainant of that fact, and
(b)   the Commissioner must cause the complaint to be investigated.”

Section 140 deals with investigations by the Ombudsman. It is in the following terms:

“140 Decision of Ombudsman as to investigation of complaint
(1)   This section applies to and in respect of complaints received by the Ombudsman, including complaints referred to the Ombudsman by some other person or body, but does not apply to or in respect of complaints that (in accordance with guidelines agreed between the Police Integrity Commission and the Ombudsman after consultation with the Commissioner) do not need to be investigated.
(2)   The Ombudsman may decide that the complaint should be, or does not need to be, investigated.
(3)   If the Ombudsman decides that the complaint should be investigated:
(a)   the Ombudsman must notify the Commissioner and the complainant of the decision, and
(b)   the Commissioner must cause the complaint to be investigated.

(4)   If the Ombudsman decides that the complaint does not need to be investigated:
(a)   the Ombudsman:
(i)   must notify the complainant of the decision and of the Ombudsman’s reasons for the decision, and
(ii)   must send to the Commissioner a copy of the notification, and

(b) the Commissioner may, if of the opinion that it is appropriate to do so, notify the police officer whose conduct is the subject of the complaint of the decision.”

Division 6 of Pt 8A deals with procedures following investigation by the Commissioner. The Ombudsman has power under s 153 to request a further investigation and under s 154 to request the Commissioner to review any decision concerning any action to be taken as a result of an investigation. The Commissioner is not obliged to comply with such requests.
Division 7 of Pt 8A deals with investigations by the Ombudsman of complaints about police conduct under the Ombudsman Act. Of relevance are ss 156, 157 and 158. They are in the following terms:

“156 Investigation of complaint under Ombudsman Act 1974
(1)   If of the opinion that it is in the public interest to do so, the Ombudsman may make a complaint, together with any investigation of the complaint and any related issues, the subject of an investigation under the Ombudsman Act 1974.
(2)   The Ombudsman may take action under this section before the commencement of an investigation under Division 5, during the progress of such an investigation or after the conclusion of such an investigation.
(3)   The Ombudsman must notify the Commissioner of any action taken by the Ombudsman under this section.
(4)   On being so notified, the Commissioner is to discontinue any investigation under Division 5.
(5)   This section has effect despite anything to the contrary in this Part.
157 Report following Ombudsman’s investigation
(1)   At the conclusion of an investigation under the Ombudsman Act 1974 of a complaint referred to in section 156, the Ombudsman must prepare a report on the investigation.
(2)   The report may include such comments and recommendations as the Ombudsman considers appropriate.
(3)   The Ombudsman is to provide a copy of the report to the complainant, to the Minister and to the Commissioner.
(4)   The Commissioner is then to provide a copy of the report to the police officer whose conduct was the subject of the complaint.
158 Notification of proposed action on reports
(1) As soon as practicable after receiving a report under section 157, the Commissioner must notify the Ombudsman of the nature of the action taken, or to be taken, as a result of the report.
(2)   If the Ombudsman has provided a copy of the report to the Commissioner and the Ombudsman is of the opinion:
(a)   that the Commissioner has unreasonably delayed notifying the Ombudsman of the nature of the action taken, or to be taken, as a result of the report, or
(b)   that the nature of the action taken, or to be taken, as a result of the report is, in the circumstances of the case, unreasonable or inadequate, or
(c)   that the Commissioner has unreasonably delayed taking action as a result of the report,

the Ombudsman is to advise the Commissioner accordingly by notice in writing served on the Commissioner.
(3) If the Ombudsman and the Commissioner do not, within 28 days, resolve any issue the subject of a notice under subsection (2), either or both of them may notify the Minister that the issue is unresolved.
(4) The issue may be the subject of an Ombudsman’s special report.”

Section 160 provides that the Ombudsman must inspect the records of the NSW Police Force annually to ensure that the requirements of Pt 8A are being complied with. Section 161 empowers the Ombudsman to make a special report to the Presiding Officer of each House of Parliament on any matter arising in connection with the exercise of his or her functions under Pt 8A. Section 161 is in the following terms:

“161 Special reports by Ombudsman
(1)   The Ombudsman:
(a)   may, at any time, make a special report to the Presiding Officer of each House of Parliament on any matter arising in connection with the exercise of his or her functions under this Part, and
(b)   in that event, must provide the Minister with a copy of the report.

(2) The Ombudsman may include in such a report a recommendation that the report be made public as soon as practicable.”

Section 165 of the Police Act is in somewhat similar terms to s 35 of the Ombudsman Act. It provides as follows:

“165 Ombudsman and officers of Ombudsman not competent or compellable witnesses in respect of certain matters
(1)   Neither the Ombudsman, nor an officer or special officer of the Ombudsman who is not a police officer, is competent or compellable, in any legal proceedings, to give evidence or produce documents in respect of any matter in which he or she is or was involved in the course of the administration or execution of this Part.
(2)   Subsection (1) does not apply to or in respect of any of the following proceedings:
(a) proceedings under section 37 of the Ombudsman Act 1974,
(b) proceedings under Part 3 of the Royal Commissions Act 1923,
(c) proceedings under section 167A of this Act,
(d) proceedings under section 20 or 20B of the Public Interest Disclosures Act 1994,
(e)   criminal proceedings resulting from an investigation conducted, pursuant to this Part, by the Ombudsman under the Ombudsman Act 1974, but only if the investigation related (whether or not entirely) to a matter referred by the Inspector of the Police Integrity Commission, or the Inspector of the Crime Commission, to the Ombudsman for investigation.

(3) Subsections (1) and (2) do not prejudice or affect the operation of section 35 of the Ombudsman Act 1974 in relation to the administration and execution of this Act.”

With that legislative background it is convenient to turn to the question of the construction of ss 35, 35A and 35B. Because the approach by the plaintiff on this question is based in large part on the contention that if s 35A operates to preclude review for jurisdictional error it is invalid, it is convenient to deal with that aspect of the case at the same time as the issue of construction. It should be noted that the plaintiff did not contend that his claims fell within the bad faith exception in s 35A.

The plaintiff’s submissions on construction

The plaintiff contended that the words “liable” and “civil or criminal proceedings” in s 35A of the Ombudsman Act do not encompass proceedings for judicial review for (at least) jurisdictional error. He contended that the cases which had considered this issue, Ainsworth v The Ombudsman (1988) 17 NSWLR 276 (“Ainsworth v The Ombudsman”), Commissioner of Police v Ombudsman (unreported, NSWSC, Sackville AJ, 9 September 1994) (“CoP v Ombudsman”), Botany Council v The Ombudsman (1995) 37 NSWLR 357 (“Botany Council”), The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCCA 277 (“Ombudsman v Koopman”) and The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 (“Ombudsman v Laughton”), had not determined to the contrary, or if they had, they should not be followed as a result of the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”). Senior counsel for the plaintiff submitted that the decision of Jagot J in Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506; [2011] FCA 787 (“Micro Focus”) established that s 35A does not confer immunity for acts or omissions that are not authorised by the Act, or acts or omissions that were merely preparatory or incidental to the exercise of a statutory power by the Ombudsman.
The plaintiff submitted that the notion of being liable ordinarily involves a liability for a personal remedy to redress an injury and does not extend to proceedings for judicial review by way of certiorari or declaration. He submitted that support for this approach could be found in the decision of the English Court of Appeal in Ex parte Waldron [1986] 1 QB 824 at 848, 851 (“Ex parte Waldron”), and in the tentative view expressed by Basten JA in Ombudsman v Laughton (at [45]) to the effect that an appeal to a tribunal in relation to an appointment was not a civil proceeding to which the Ombudsman is “liable”.
The plaintiff also submitted that proceedings for judicial review are not civil proceedings within the meaning of that expression in s 35A. He referred to the decision of this Court in Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 (“Patsalis”), where it was held that s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) did not require a person to whom the section applied to seek leave to commence proceedings for judicial review. He noted in particular what was said by Basten JA (at [44], [55]) that the term “civil proceedings” takes its meaning from its context, and in that case did not extend to proceedings for judicial review.
The plaintiff submitted that further support for this construction could be found in considering the Act as a whole. He contrasted the use of the words “any legal proceedings” in s 35 of the Act with the words “civil or criminal proceedings” in s 35A, submitting that if Parliament had intended to exclude proceedings for judicial review in s 35A, it would have adopted the same words as used in s 35.
The plaintiff also submitted that the words “in respect of any matter or thing done or omitted to be done for the purpose of executing this or any other act” in s 35A do not extend to a report containing matters on which the Ombudsman was not authorised to report, or a report infected by jurisdictional error by virtue of a denial of procedural fairness, as neither of those matters are required or authorised by the Ombudsman Act or the Police Act.
The plaintiff submitted that privative clauses must be construed strictly. He submitted that s 35A could only be engaged in the present case if it was read to include acts, matters or things that were ultra vires to a relevant Act. He submitted that this was neither the natural or ordinary meaning of the words, nor the meaning on a strict interpretation of those words.
The plaintiff also submitted that the courts are reluctant to find that procedural fairness has been excluded and that there are no words of irresistible clearness in the Ombudsman Act (or the Police Act) to suggest an intention on the part of the legislature to exclude compliance with both the hearing rule and the bias rule. He submitted that if s 24 of the Ombudsman Act could be construed as an exhaustive statement of the obligation to afford procedural fairness, it did not exclude the bias rule.
The plaintiff put at the forefront of his argument that the privative clauses in s 35A of the Ombudsman Act and s 165 of the Police Act must be interpreted in light of the constitutional limits on State legislative power and particularly the principles derived from Kirk. In his written submissions, the plaintiff contended that the effect of the decision in Kirk was that legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. The plaintiff submitted that the various claims made by him were in respect of jurisdictional error and that s 35A, properly construed, does not give the Ombudsman immunity from proceedings for such error. He submitted that the decisions which had previously construed s 35A of the Ombudsman Act were decided prior to the decision in Kirk, and should not be followed.
The plaintiff submitted the principles in Kirk can apply where what is sought is declaratory relief as distinct from relief in the nature of prerogative writs and that the Ombudsman’s activities do affect legal rights and obligations so as to attract the supervisory jurisdiction of the Court.
In relation to the question of declaratory relief the plaintiff first pointed to the broad conferral of jurisdiction on the Court in s 23 of the Supreme Court Act 1970 (NSW), the power obtained in s 69 of that Act to grant relief in lieu of the prerogative writs and the power conferred by s 75 empowering the Court to make binding declarations of right, whether or not consequential relief could be claimed. He referred in that context to the decision of the Queensland Court of Appeal in Heery v Criminal Justice Commission [2001] 2 Qd R 610; [2000] QCA 511, in which declarations had been made by the primary judge against the respondent that the use of listening devices at the appellant’s house was done in breach of confidence together with orders that the records retained as a result should be destroyed. Section 101 of the Criminal Justice Act 1989 (Qld) relevantly provided that an act done or omission made by the Commission did not render the Commission liable for any claim, demand or action if the act was done or the omission made in good faith and without negligence for the purpose of the discharge of the functions and responsibilities of the Commission. In that case Thomas JA, with whom Davies JA and Douglas J agreed, made the following remarks (at [23]-[25]):

“[23] A measure such as s 101 has the effect of destroying rights recognised by the common law, and of limiting the legal accountability of a body (along with its officers) which plays an important part in public life and in the administration of the criminal law. It should be strictly construed. The heading to s 101 is ‘Protection from liability’ and the word ‘liable’ is central to the text of the provision. It is true that protection is granted against liability to any ‘claim, demand or action’, and more than one construction of this provision is open. Mr Sofronoff however did not submit that the section renders the CJC immune from suit or action, and readily conceded that it could be successfully sued to the end that orders such as those in Ainsworth v Criminal Justice Commission might be made.
[24] The point at issue is whether the court's jurisdiction to make declarations has been ousted. Whilst it is possible for such a result to be achieved courts do not lightly infer that such jurisdiction has been excluded, and clear words are necessary. The breadth and utility of this remedy and its important role in the shaping of modern administrative law is well recognised. It has been observed that at the time of its origin, declaratory relief was about the only relief available to a subject against the Crown as the courts were unable to make coercive orders against the Crown. This supervisory jurisdiction, as it has now developed, remains one of the critical tools by which courts protect individual rights and maintain the rule of law.
[25] I do not think that the present section ousts the court's power to grant a remedy of this kind. In being made the subject of a declaration of right neither the CJC nor its officers are rendered subject to personal or direct liability. Nor do I think that the CJC or its officers would be deterred from the proper pursuit of their functions through being subject to supervision and declaration by the courts as to the lawfulness of their actions.” [Footnotes omitted].

The plaintiff also relied on the decision of the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 (“Ainsworth v CJC”), which he submitted demonstrated that declaratory relief could be given even where certiorari could not, including in circumstances where the publication of a report had damaged the applicant’s reputation. The plaintiff pointed in particular to the statement of the plurality (at 581) that it was accepted that superior courts had inherent power to grant declaratory relief.
The plaintiff submitted that declaratory relief was part of the supervisory jurisdiction of the Supreme Court at Federation because historically declarations against the Crown in favour of private parties were made in the supervisory jurisdiction. Alternatively he stated the principle that there be a body fitting the description of a Supreme Court of a State should be read in light of the current powers of the Supreme Court, as the Constitution ought to be interpreted as a living instrument, referring to what was said by Deane J in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 at 171, 174.
He also referred to Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129; [2015] VSCA 197 (“Bare v IBAC”) where, in respect of persons who were described in the Police Integrity Act 2008 (Vic) as protected persons, s 109 provided that such persons were not “liable, whether on the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which they would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith”. The majority in that case held that the section did not preclude judicial review of a decision not to conduct an investigation. Tate JA expressed her conclusion in the following terms (at [373]):

“[373] In my view, s 109 should be read as having a narrow operation which does not extend to preclude review of the decision. The presence of the specific immunity in s 51B(1) indicates that s 109(1) should not be read as being of unlimited or general application. The basic rule guiding the statutory construction of ouster clauses, supported by the principle of legality, dictates that, where available, a narrow construction should be adopted. Section 52, on its terms, appears to indicate that the provisions of Part 4 (including s 109) apply only for ‘the purposes of an investigation by the Director under Part 3’. This would restrict the application of the immunity under s 109 to acts done for the purposes of an investigation. A refusal to investigate is not an act done for the purposes of an investigation. Nor is it an essential step taken for the purposes of an investigation. It rather prevents, and is aimed at preventing, an investigation taking place. Its purpose is to impede or exclude an investigation. As the decision was not an act done for the purpose of an investigation, it falls outside s 109 and is susceptible to judicial review. The decision is subject to the supervisory jurisdiction of this Court.”

No caselaw was relied upon for the proposition that a declaration would have been available in those circumstances. Indeed, even in relation to established private rights and interests, there is no acceptance of the proposition that a bare declaration was available in circumstances where no other relief could be sought. [142] Rather, the availability of bare declaratory relief in support of private interests is best understood as dependent upon statutory intervention. [143]
142. Aronson, Groves and Weeks at [15.20]-[15.50]; JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) at [19.010]-[19.110].
143. Court of Chancery (England) Act 1850 (13 & 14 Vict c 35); Court of Chancery Procedure Act 1852 (15 & 16 Vict c 86); Supreme Court Rules of 1883, Order 25, r 5; E Borchard, Declaratory Judgments (Hein, 2nd ed, 1941), pp 215-221.
The turning point heralding a new willingness to grant bare declarations was Dyson v Attorney General,[144] decided in 1911. Declaratory relief was seen as the proper method of testing the validity of the power of the tax office to require detailed information from individuals as to their property and business interests. This case disposed of the reluctance to grant relief against the Crown, otherwise than pursuant to a petition of right (a procedural concern), but also the separate reluctance to provide what could be seen as in the nature of an advisory opinion in circumstances where no right or obligation had crystallised. [145] In Gouriet v Union of Post Office Workers [146] Lord Wilberforce said that “there is no support in authority for the proposition that declaratory relief can be granted unless the plaintiff, in proper proceedings, in which there is a dispute between the plaintiff and the defendant concerning their legal respective rights or liabilities either asserts a legal right which is denied or threatened, or claims immunity from some claim of the defendant against him or claims that the defendant is infringing or threatens to infringe some public right so as to inflict special damage on the plaintiff.” [147] The present case is concerned with private, not public, rights.
144. [1911] 1 KB 410; [1912] 1 Ch 158.
145. Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 at 670-671 (Lockhart J); Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [48].
146. [1978] AC 435.
147. Gouriet at 483.
Zamir and Woolf conveniently identify a number of cases involving public law in which declarations were granted. [148] The authors note that at 1901 there were many authorities asserting that a declaration could only be made in respect of a legal right, [149] or where there was a cause of action. [150]
148. Woolf and Woolf, Zamir and Woolf – The Declaratory Judgment (Sweet & Maxwell, 3rd ed, 2002) at pars 2.14-2.15.
149. Williams v North’s Navigation Collieries [1904] 2 KB 44 at 49; [1906] AC 136.
150. Offin v Rochford Rural Council [1906] 1 Ch 342 at 358.
Although in Ainsworth v Criminal Justice Commission, the High Court stated that the power to grant declaratory relief formed part of the “inherent jurisdiction” of the High Court (and presumably the Queensland Supreme Court), [151] no authority was identified in support of the proposition that such a jurisdiction existed in 1901 to deal with any breach of procedural fairness by a body with no power to make a decision affecting legal rights and interests.
151. Ainsworth v Criminal Justice Commission
A more nuanced approach is required than that adopted by the applicant in relation to this issue. In Futuris, dealing with the Income Tax Assessment Act 1936 (Cth), the joint reasons in the High Court noted that the significance of a conclusive evidence provision (s 177), read in the context of a privative provision (s 175), lay in the approach explained in Project Blue Sky. [152] Thus, the issue was to determine “whether it is a purpose of the Act that a failure by the Commissioner in the process of assessment to comply with provisions of the Act renders the assessment invalid; in determining that question of legislative purpose regard must be had to the language of the relevant provisions and the scope and purpose of the statute.” [153] Adopting that approach, the joint judgment continued: [154]

“If that be done, the result is that the validity of an assessment is not affected by failure to comply with any provision of the Act, but a dissatisfied taxpayer may object to the assessment in the manner set out in Pt IVC of the Administration Act. … Where s 175 applies, errors in the process of assessment do not go to jurisdiction and so do not attract the remedy of a constitutional writ under s 75(v) of the Constitution or under s 39B of the Judiciary Act.”
152. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
153. Futuris at [23].
154. Futuris at [24].

Section 175 was held not to encompass “deliberate failures to administer the law according to its terms.” [155] Such failures manifested jurisdictional error and therefore attracted relief by way of the constitutional writs. [156]
155. Futuris at [55].
156. Futuris at [56].
In the present case, the construction adopted above has a similar effect; namely, that failure to comply with procedural requirements, falling short of deliberate failures to administer the statutes conferring powers on the Ombudsman, will not constitute jurisdictional error and will therefore not attract the constitutionally protected jurisdiction of this Court. In Futuris, it may be inferred that the analogous finding was acceptable because the taxpayer was not left without a remedy, which might ultimately find its way to a Chapter III court, in seeking to challenge a liability to pay tax, which the Commissioner sought to impose by an assessment. In the present case, no report or recommendation of the Ombudsman, nor a finding of maladministration, can impose legal liabilities on any member of the public or any employee in the public service. The conclusion reached below, that there is no constitutional invalidity, arrives at the same result by a different, but consistent, approach.
As this Court noted in Trives v Hornsby Shire Council,[157] any expansion of the principle established in Kirk beyond its sphere of operation should be undertaken with caution. That is because Kirk identified an irreducible characteristic of State Supreme Courts by reference to what was understood to be the scope of the supervisory jurisdiction in 1901. Further restraints on the legislative power of State Parliaments can only be imposed on a similar principled basis. None was identified in the present case. The impugned provisions are not invalid.

Application under s 35B of the Ombudsman Act

157. (2015) 89 NSWLR 268; [2015] NSWCA 158 at [46].

In the event that the Court upheld the immunity of the Ombudsman from proceedings by reason of s 35A(1), the applicant relied in the alternative on the power to raise a question as to the jurisdiction of the Ombudsman to conduct an investigation pursuant to s 35B. It is not in doubt that that provision has effect notwithstanding s 35A. [158] The applicant is a person interested for the purposes of s 35B(3) and therefore entitled to bring proceedings under s 35B(1).
158. Ombudsman Act, s 35B(4).
In its further amended summons, the applicant relied upon this basis for an application to the Supreme Court only with respect to the following relief:

“11 A declaration that so much of the questioning of the [applicant] at the hearing convened (or purportedly convened) pursuant to section 19 of the Ombudsman Act …. and held on 5 September 2014 to take evidence from the [applicant] as was about:
a. the [applicant’s] contact with journalists; or
b. the provision of documents to the [applicant] by:
[three named individuals]
was not supported by any valid decision to conduct an investigation for the purposes of which a hearing could be held.”

That claim was said to fall within the scope of s 35B because it squarely raised the issue as to whether it was within the Ombudsman’s power “to embark upon such an investigation”. [159] However, little more was said in support of that submission.
159. Applicant’s written submissions, 24 March 2017, par 7.3.
The Ombudsman challenged reliance on s 35B for that purpose in circumstances where, before the application was made, the investigation had been completed and, in any event, the investigation was well underway when the conduct complained of was undertaken. If the first ground of objection is good (as it is) it is not necessary to determine the second ground.
The language of ss 35A and 35B reveal how they were intended to fit together. As has been noted, s 35A is concerned with proceedings in respect of an act, matter or thing “done, or omitted to be done” whereas s 35B is concerned with conduct “which is the subject of the investigation or proposed investigation” (s 35B(3)(a)); s 35B also refers in the present tense to the circumstance where “any question arises” (s 35B(1)) and where “the investigation arises” (s 35B(3)(c)). The present tense is consistently used throughout s 35B. While s 35B(1) suggests that the raising of the question for the consideration of the Court should precede the conduct of the investigation, other language suggests that an investigation may already be on foot.
Accordingly, it may have been open to the applicant to challenge the jurisdiction of the Ombudsman in the course of the investigation, for example when he became aware of the scope of the proposed investigation so far as it concerned his conduct. However, it is clear that s 35B does not envisage a challenge to jurisdiction after the completion of an investigation. Such a reading would not only be inconsistent with the language of the two sections, but would make it difficult, if not impossible, to reconcile the two provisions. Section 35B would effectively demolish the preceding provision.
The applicant’s attempt to rely upon s 35B to justify the claim in par 11 of the summons (or indeed in any other part of the summons) must be rejected.

The notices to produce documents

If the proceedings fall within the immunity conferred by s 35A, they will, presumably, in due course be dismissed as incompetent. In that circumstance, the issues raised with respect to the notices to produce fall away. As that is the conclusion reached above in respect of the operation of s 35A (and its validity) little need be said about the question with respect to production of documents, particularly as the terms of s 35 have already been considered.

(a) statutory protection from production

Section 35 of the Ombudsman Act and s 165 of the Police Act (prior to 1 July 2017) were relevantly in similar (though not identical) terms; it is sufficient to consider the language of s 35. That section renders both the Ombudsman and officers in the office of the Ombudsman (other than members of the Police Force) incompetent and non-compellable to give evidence or produce documents in any legal proceeding. There are two qualifications. The first is that the subject matter of any subpoena or notice must be in respect of any information obtained by the person “in the course of the … office”, which must mean in the course of exercising the functions of the office. Although it was submitted that certain limited categories of documents fell outside that limitation, that raised an issue of fact which cannot properly be dealt with in answering the stated questions. (Arguably the reference to information obtained in the Ombudsman’s office has the same operation as the limitation in s 35A to things done for the purpose of executing the Ombudsman’s statutory functions.)
The second limitation arises from the statement in s 35(2) that subs (1) “does not apply to any … proceedings under section … 35A, 35B or 37”. The applicant submitted that the exclusion of proceedings “under” s 35A allowed for the production of documents with respect to any proceeding which did not fall within the scope of the immunity. However, that is a strained reading of s 35(2)(a) and should not be accepted. Section 35A expressly envisages proceedings being brought against the Ombudsman, with leave of the Supreme Court, in reliance upon the bad faith exception. That was not invoked in the present case and accordingly the limitation in s 35(2) was not engaged.
The result is that, unless the present proceedings are available under s 35A, the Ombudsman will not be compellable to produce the documents sought.

(b) validity of ss 35 and 165

The applicant asserted that if s 35 (and s 165 of the Police Act) had the effect identified above, they were invalid because they impermissibly curtailed the Court’s ability to determine whether the Ombudsman had “committed jurisdictional error”, with the consequence that the provisions “offend the institutional integrity of the Supreme Court in contravention of the principle in Kirk.” [160] (Kirk was concerned with protecting the essential jurisdiction of a State Supreme Court; the language of “institutional integrity” is usually associated with Kable v Director of Public Prosecutions (NSW). [161] )
160. Applicant’s written submissions, 24 March 2017, par 8.26.
161. (1996) 189 CLR 51; [1996] HCA 24.
In A v Independent Commission Against Corruption [162] the Court considered a similar provision in the Independent Commission Against Corruption Act 1988 (NSW), s 111(3) which provided that an officer of the Commission shall not be required:

(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions under this Act, or
(b) to divulge or communicate to any court any matter or thing that has come to the person’s notice in the exercise of the person’s functions under this Act.
162. (2014) 88 NSWLR 240; [2014] NSWCA 414 (Bathurst CJ, Basten and Ward JJA).

There were exceptions, but not in relation to proceedings in the supervisory jurisdiction of the Court. After referring to the principles underlying Kirk, I said: [163]

“These underlying principles provide some, though limited, assistance in identifying the restraint thus imposed on legislative power. There is no bright line standard which can be applied. No doubt a statute which so diminishes the opportunity for a Supreme Court to exercise its supervisory jurisdiction over a particular tribunal may constitute an effective removal of the jurisdiction, equivalent to that achieved by a strong privative clause. However, it is difficult to see that such a conclusion could be drawn in the present circumstances.”
163. A v Independent Commission Against Corruption at [50].

In circumstances where it could not be said that the Court would be deprived of all relevant information, the applicant “failed to demonstrate a level of constraint on the supervisory jurisdiction of the court sufficient to establish that s 111 intrudes impermissibly on the constitutionally guaranteed jurisdiction of the court.” [164] In the present case, the applicant complains of procedural unfairness in relation to specific aspects of the Ombudsman’s investigation. One would expect his case to depend upon his own evidence as to what he was or was not told in the course of the investigation and as to the questions he was asked and the information he supplied. To the extent that the Ombudsman would not be able to respond with relevant material, that is not something about which the applicant seeks to complain. (As noted above, it may however be an indication that the present proceedings were not envisaged by the drafter of the legislation.)
164. A v Independent Commission Against Corruption at [52].
Similarly, unless the applicant has independent evidence of bias, a challenge based on that ground will not succeed; a notice to produce seeking to establish that ground would have the hallmarks of a fishing expedition. Even if it did not, it is difficult to see how the control imposed by s 35 could be said to prevent the Court exercising the presumptively available supervisory jurisdiction.
Question 4, dealing with the notices to produce, addresses separately the notices issued to the Ombudsman on 6 December 2016 and to both the Ombudsman and the former Ombudsman on 17 January 2017. If some point arises because s 35(1) refers only to the Ombudsman and an officer of the Ombudsman, it may be noted that, from 5 March 2015, s 35(3) was amended so that subs (1) thereafter applied to a former Ombudsman and a former officer of the Ombudsman. [165]
165. Ombudsman and Public Interest Disclosures Legislation Amendment Act 2014 (NSW), Sch 1.

Conclusions

On the basis of the reasoning set out above, I would make the following orders:

The questions referred for determination by the Court should be answered as follows:

Question 1: Assuming s 35A of the Ombudsman Act 1974 is valid:

(a) are the claims in the Further Amended Summons filed 13/2/2017 precluded in whole or in part by s 35A(1)?

(b) does this Court have power to grant leave pursuant to s 35A(2) nunc pro tunc following a hearing on the merits of the Further Amended Summons?

Answer: On the basis that s 35A is valid,

(a) the claims in the further amended summons are wholly precluded by s 35A(1);

(b) no.

Question 2: If the claims in the Further Amended Summons are precluded, in whole or in part, by s 35A(1):

(a) is s 35A invalid on the grounds of the doctrine in Kirk v Industrial Relations Commission (2010) 239 CLR 531?

(b) if so can any invalid part of s 35A be severed and/or read down and, if so, in … what way?

Answer: In respect of (a) – Section 35A is not invalid on the ground that it exceeds the power of the State Parliament as constrained by Chapter III of the Constitution.

In respect of (b) – The question does not arise.

Question 3: Which, if any, claims in the Further Amended Summons are made pursuant to s 35B(1) of the Ombudsman Act?

Answer: No claims are made pursuant to s 35B(1).

Question 4: Assuming s 35 of the Ombudsman Act and/or s 165 of the Police Act 1990 are valid:

(a) should the Notice to Produce issued to the 2nd defendant dated 6/12/2016 be set aside on the ground of s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act?

(b) should the plaintiff’s Notices to Produce to the 1st and 2nd defendants dated 17/1/2017 be set aside on the grounds of s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act?

Answer: In respect of (a) – Yes, on the basis of both provisions.

In respect of (b) – Yes, on the basis of both provisions.

Question 5: If the Notices to Produce, or any of them, are precluded by s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act:

(a) are either or both of the sections invalid in whole or in part?

(b) if so, can any invalid part of either section be severed and/or read down and, if so, in what way?”

Answer: In respect of (a) – Neither is invalid either in whole or in part.

In respect of (b) – Does not arise.

The applicant (Naguib Kaldas) should pay the costs of the proceedings in this Court of the first and second respondents (Bruce Barbour and the Ombudsman) and of the third respondent (Linda Waugh).

MACFARLAN JA: I agree with the judgment of Basten JA, save in relation to his Honour’s construction of s 35B of the Ombudsman Act (see [362]-[368]) above. On that issue, I agree with Bathurst CJ’s reasoning (see [147]-[149] above). I agree also with the orders proposed by Basten JA.

**********

Endnotes

Amendments

27 October 2017 - Typographical errors

Decision last updated: 27 October 2017

Medium Neutral Citation:	Kaldas v Barbour [2017] NSWCA 275
Hearing dates:	8-9 June 2017
Date of orders:	24 October 2017
Decision date:	24 October 2017
Before:	Bathurst CJ at [1]; Basten JA at [205]; Macfarlan JA at [380]
Decision:	1. The questions referred for determination by the Court should be answered as follows: Question 1: Assuming s 35A of the Ombudsman Act 1974 is valid: (a) are the claims in the Further Amended Summons filed 13/2/2017 precluded in whole or in part by s 35A(1)? (b) does this Court have power to grant leave pursuant to s 35A(2) nunc pro tunc following a hearing on the merits of the Further Amended Summons? Answer: On the basis that s 35A is valid, (a) the claims in the further amended summons are wholly precluded by s 35A(1); (b) no. Question 2: If the claims in the Further Amended Summons are precluded, in whole or in part, by s 35A(1): (a) is s 35A invalid on the grounds of the doctrine in Kirk v Industrial Relations Commission (2010) 239 CLR 531? (b) if so can any invalid part of s 35A be severed and/or read down and, if so, in what way? Answer: In respect of (a) – Section 35A is not invalid on the ground that it exceeds the power of the State Parliament as constrained by Chapter III of the Constitution. In respect of (b) – The question does not arise. Question 3: Which, if any, claims in the Further Amended Summons are made pursuant to s 35B(1) of the Ombudsman Act? Answer: No claims are made pursuant to s 35B(1). Question 4: Assuming s 35 of the Ombudsman Act and/or s 165 of the Police Act 1990 are valid: (a) should the Notice to Produce issued to the 2nd defendant dated 6/12/2016 be set aside on the ground of s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act? (b) should the plaintiff’s Notices to Produce to the 1st and 2nd defendants dated 17/1/2017 be set aside on the grounds of s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act? Answer: In respect of (a) – Yes, on the basis of both provisions. In respect of (b) – Yes, on the basis of both provisions. Question 5: If the Notices to Produce, or any of them, are precluded by s 35(1) of the Ombudsman Act and/or s 165(1) of the Police Act: (a) are either or both of the sections invalid in whole or in part? (b) if so, can any invalid part of either section be severed and/or read down and, if so, in what way?” Answer: In respect of (a) – Neither is invalid either in whole or in part. In respect of (b) – Does not arise. 2. The applicant (Naguib Kaldas) should pay the costs of the proceedings in this Court of the first and second respondents (Bruce Barbour and the Ombudsman) and of the third respondent (Linda Waugh).
Catchwords:	ADMINISTRATIVE LAW – Ombudsman – review of Ombudsman's findings and report – scope of s 35A of Ombudsman Act 1974 (NSW) – whether power to grant leave nunc pro tunc after claim determined – whether claims fall under s 35B – whether notices to produce liable to be set aside based on s 35 of the Ombudsman Act 1974 (NSW) and s 165 of the Police Act 1990 (NSW) CONSTITUTIONAL LAW – validity of s 35A of Ombudsman Act 1974, if it precludes review of findings of Ombudsman – whether s 35A limits the constitutionally protected jurisdiction of the Supreme Court – validity of s 35 of the Ombudsman Act 1974 and s 165 of the Police Act 1990, if they preclude issue of notices to produce – whether those provisions intrude upon the constitutionally protected jurisdiction of the Supreme Court STATUTORY INTERPRETATION – determining questions of construction before constitutional issues – construing to full extent of power, pursuant to Interpretation Act 1987 (NSW), s 31 – privative provision – use of legislative history WORDS AND PHRASES – “want of jurisdiction” – “thing done … for the purpose of executing this or any other Act” – Ombudsman Act 1974 (NSW), s35A
Legislation Cited:	Administration of Justice Act 1924 (NSW), s 18 Australian Courts Act 1828 (Imp) (9 Geo 4 c 83), ss 3, 11 Constitution Act 1975 (Vic), s 94E Constitution, s 73; Ch III Chancery Procedure Act 1852 (UK), s 50 Court of Chancery Act 1841, (UK) Criminal Justice Act 1989 (Qld), s 101 Equity Act 1880 (NSW), s 50 Equity Act 1901 (NSW), s 10 Felons (Civil Proceedings) Act 1981 (NSW), s 4 Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 20 Income Tax Assessment Act 1936 (Cth), ss 175, 177 Independent Commission Against Corruption Act 1988 (NSW), s 111 Industrial Relations Act 1996 (NSW), s 179 Interpretation Act 1897 (NSW), s 3 Interpretation Act 1987 (NSW), s 31 Law Enforcement Conduct Commission Act 2016 (NSW), s 133; Sch 1, item 13; Sch 5.1; Sch 6, item 6.35 Local Government Act 1999 (SA), s 273 Migration Act 1958 (Cth), s 474 Ombudsman (Amendment) Act 1983 (NSW) Ombudsman (Northern Territory) Act 1980 (NT), s 31 Ombudsman Act 1974 (NSW), ss 5, 6, 6A, 7, 8, 11, 12, 13, 13AA, 15, 16, 17, 18, 19, 19A, 19B, 20, 21, 21A, 24, 25AA, 26, 26A, 27, 28, 29, 31, 31AA, 31AB, 31B, 31BA, 31A, 31B, 32, 34, 35, 35A, 35B, 35C, 37; Pt 3, Pt 3A, Pt 3B, Pt 3C, Pt 4, Pt 4A, Pt 5; Sch 1 Ombudsman Act 2001 (Qld), s 93 Ombudsman and Public Interest Disclosures Legislation Amendment Act 2014 (NSW), Sch 1 Parliamentary Commissioner (Ombudsman) Act 1962 (NZ), s 21 Parliamentary Commissioner Act 1971 (WA), ss 29, 30 Parliamentary Commissioner Amendment Act 1984 (WA), s 10 Police Integrity Act 2008 (Vic), s 109 Police Act 1990 (NSW), ss 26, 121, 122, 126, 127, 130, 132, 139, 140, 156, 157, 159, 160, 161, 165, 170, 213; Pt 8, Divs 4, 5, 6, 7, 8; Pt 8A Privacy and Personal Information Protection Act 1998 (NSW), s 55 Public Interest Disclosures Act 1994 (NSW), ss 3, 20 Public Service Management Act 1988 (NSW) Royal Commissions Act 1923 (NSW), Pt 2, Div 1; Pt 3, s 21 Serious and Organised Crime (Control) Act 2008 (SA) Statute Law (Miscellaneous Provisions) Act (No 3) 1989 (NSW), Sch 1 Supreme Court Act 1970 (NSW), ss 23, 63, 69, 75 Supreme Court Act 1981 (UK), s 42(1A) Supreme Court Rules of 1883, Order 25, r 5
Cases Cited:	A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414 A1 and A2 v Brouwer (2007) 16 VR 612; [2007] VSCA 139 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Ainsworth v The Ombudsman (1988) 17 NSWLR 276 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 Alice Springs Town Council v Watts (1982) 18 NTR 1 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; 139 ALR 663 Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129; [2015] VSCA 197 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 Batterham v QSR Limited (2006) 225 CLR 237; [2006] HCA 23 Board of Education v Rice [1911] AC 179 Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961] HCA 71 Botany Council v The Ombudsman (1995) 37 NSWLR 357 Botany Council v The Ombudsman (unreported, NSWSC, Spender AJ, 16 June 1995) Boyd v The Ombudsman [1981] 2 NSWLR 308 Boyd v The Ombudsman [1983] 1 NSWLR 620 Brown v Rezitis (1970) 127 CLR 157; [1970] HCA 56 CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2 City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1; [2014] SASC 36 Clough v Ratcliffe (1847) 1 De. G. & Sim 164 Commissioner of Police v Ombudsman (unreported, NSWSC, Sackville AJ, 9 September 1994) Commissioner of Taxation (Cth) v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135; [2000] HCA 5 Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602; [1997] HCA 11 Dyson v Attorney General [1911] 1 KB 410; [1912] 1 Ch 158 Ellis v Duke of Bedford [1899] 1 Ch 494 Esquimalt and Nanaimo Railway Co v Wilson [1920] AC 358 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 Gouriet v Union of Post Office Workers [1978] AC 435 Graham v Minister for Immigration and Border Protection [2017] HCA 33 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Heery v Criminal Justice Commission [2001] 2 Qd R 610; [2000] QCA 511 Hot Holdings Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 In the matter of an application by JR55 for Judicial Review (Northern Ireland) [2016] UKSC 22; [2016] 4 All ER 779 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 Kerr v Commissioner of Police [1977] 2 NSWLR 721 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; 341 ALR 483 Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64 Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506; [2011] FCA 787 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 Moroney v The Ombudsman [1982] 2 NSWLR 591 North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595; [1996] HCA 2 Offin v Rochford Rural Council [1906] 1 Ch 342 Parker v Anti-Corruption Commission (unreported, Supreme Court of Western Australia Full Court, 31 March 1999) Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Pawlett v Attorney-General (1668) Hardres 465 Plaintiff M61/201E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Public Service Association (SA) v Federated Clerks’ Union of Australia (1991) 173 CLR 132; [1991] HCA 33 Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398; [2012] HCA 25 R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 R v Local Government Board (1882) 10 QBD 309 Re Alberta Ombudsman Act (1970) 10 DLR (3d) 47 Rooke v Lord Kensington (1856) K. & J. 753 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 State of South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 Tavitian v Commissioner of Highways [2010] SASC 206 The King v Hibble; ex parte the Broken Hill Proprietary Company Limited (1920) 28 CLR 456; [1920] HCA 83 The King v Murray; Ex parte Proctor (1949) 77 CLR 387; [1949] HCA 10 The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCA 277 The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 The Ombudsman v Moroney [1983] 1 NSWLR 317 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 Tito v Waddell (No 2) [1977] Ch 106 Trives v Hornsby Shire Council (2015) 89 NSWLR 269; [2015] NSWCA 158 Walsh v Alexander (1913) 16 CLR 293; [1913] HCA 24 West v Lord Sackville [1903] 2 Ch 378 Williams v North’s Navigation Collieries [1904] 2 KB 44; [1906] AC 136 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited:	Aronson M, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) Borchard E, Declaratory Judgments (Hein, 2nd ed, 1941) Commonwealth Ombudsman, First Annual Report 1978 Creyke R, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 4th ed, 2015) Heydon J D, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) Holdsworth W S, History of English Law (Metheun & Co, 6th ed, 1938) International Commission of Jurists, The Citizen and the Administration: The Redress of Grievances (1961) Legislative Assembly (WA), Hansard, 18 November 1971 Legislative Assembly (WA), Hansard, 23 October 1984 Legislative Assembly (WA), Parliamentary Debates (Hansard), 23 September 1971 Maitland, Constitutional History of England (1955 reprint) New Zealand Legislative Assembly, Parliamentary Debates (Hansard (NZ)), 25 July 1962 Spigelman J J, “The Integrity Branch of Government” (2004) 78 ALJ 724 Tasmanian Ombudsman, Annual Report 2003/2004, Appendix C The Oxford History of the Laws of England, Vol 11, Pt 2 – Public Law Wade H W R & C F Forsyth, Administrative Law (Oxford UP, 11th ed, 2014) Woolf and Woolf, Zamir and Woolf – The Declaratory Judgment (Street & Maxwell, 2nd ed, 1993) Woolf and Woolf, Zamir and Woolf – The Declaratory Judgment (Sweet & Maxwell, 3rd ed, 2002)
Category:	Principal judgment
Parties:	Naguib (Nick) Kaldas (Plaintiff) Bruce Barbour (First Defendant) Ombudsman NSW (Second Defendant) Linda Waugh (Third Defendant) New South Wales Attorney General (Intervener)
Representation:	Counsel: A R Moses SC / R L Gall (Plaintiff) J K Kirk SC / P Herzfeld / C Winnett (First and Second Defendants) R P Lancaster SC / J E Taylor (Third Defendant) M G Sexton SC / B K Lim (New South Wales Attorney General) Solicitors: William Roberts Lawyers (Plaintiff) Ashurst Australia (First and Second Defendants) Addisons (Third Defendant) Solicitor General (New South Wales Attorney General)
File Number(s):	2016/365973