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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kaldas v Barbour [2017] NSWCA 275
Case
[2017] NSWCA 275
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Court of Appeal of New South Wales, brought by the applicant, Naguib Kaldas, against the first and second respondents, Bruce Barbour and the Ombudsman, and the third respondent, Linda Waugh. The dispute involved a review of findings and a report made by the Ombudsman, and the validity of certain notices to produce issued in connection with these proceedings. The applicant sought to challenge the Ombudsman's actions and the validity of the notices.
The primary legal issues before the Court were the scope and validity of section 35A of the *Ombudsman Act 1974* (NSW), particularly whether it precluded the applicant's claims and whether the Court had the power to grant leave *nunc pro tunc* after a hearing on the merits. The Court was also required to determine if claims fell under section 35B of the *Ombudsman Act 1974* and whether notices to produce were liable to be set aside based on section 35 of the *Ombudsman Act 1974* and section 165 of the *Police Act 1990* (NSW). Constitutional questions arose regarding the validity of these provisions if they were found to preclude the Supreme Court's jurisdiction.
The Court's reasoning involved construing the relevant statutory provisions, applying principles of statutory interpretation, and considering the constitutional implications of privative clauses. The Court determined that, assuming section 35A of the *Ombudsman Act 1974* was valid, the applicant's claims were wholly precluded by section 35A(1), and the Court did not have the power to grant leave *nunc pro tunc* under section 35A(2). It was also found that no claims were made pursuant to section 35B(1). Furthermore, the Court held that the notices to produce issued to the defendants should be set aside on the grounds of sections 35(1) of the *Ombudsman Act 1974* and 165(1) of the *Police Act 1990*. However, neither of these sections was found to be invalid, either in whole or in part.
Consequently, the Court answered the referred questions. The applicant was ordered to pay the costs of the proceedings in the Court of Appeal of the first, second, and third respondents.
Orders
Orders of the court
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).