Kaldas v Barbour - [2016] NSWSC 1880

Supreme Court

New South Wales

Medium Neutral Citation: Kaldas v Barbour [2016] NSWSC 1880
Hearing dates: 16 December 2016; 19 December 2016
Date of orders: 20 December 2016
Decision date: 20 December 2016
Jurisdiction: Common Law
Before: Garling J
Decision:
Application for interlocutory relief is dismissed

Catchwords: PRACTICE AND PROCEDURE – civil – interlocutory issues – injunctions – where plaintiff seeks an order restraining the Ombudsman from providing a report to the Parliament – whether there is a serious question to be tried – whether the balance of convenience favours granting interlocutory relief
Legislation Cited: Civil Procedure Act 2005
Judiciary Act 1903 (Cth)
Law Enforcement Conduct Commission Act 2016
Ombudsman Act 1974
Police Act 1990
Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Ainsworth v The Ombudsman (1988) 17 NSWLR 276
ICAC v Chaffey (1993) 30 NSWLR 21
Kirk v The Industrial Court (NSW) [2010] HCA; (2010) 239 CLR 531
Moroney v The Ombudsman [1982] 2 NSWLR 591
The State of Queensland v The Commonwealth of Australia [1988] HCA 1; (1988) 62 ALJR 143
Texts Cited: Not Applicable
Category: Consequential orders (other than Costs)
Parties: Naguib (Nick) Kaldas (P)
Bruce Barbour (D1)
Ombudsman NSW (D2)
Linda Waugh (D3)
Attorney-General for NSW (D4)
Representation:
Counsel:
A Moses SC / R Gall (P)
J Kirk SC / S Free / C Winnett (D1, D2)
Submitting Appearance (D3)
J McDonnell (D4)
Solicitors:
William Roberts Lawyers (P)
Ashhurst Australia (D1, D2)
Addisons Lawyers (D3)
Crown Solicitors Office (D4)

File Number(s): 2016/365973
Publication restriction: Not Applicable

Judgment

Introduction

This judgment determines an urgent application for interlocutory relief sought by Mr Nick Kaldas, formerly a Deputy Commissioner of Police in New South Wales, by way of a notice of motion filed on 6 December 2016. Mr Kaldas seeks the following interlocutory relief:

“An order until further order that the Acting Ombudsman be restrained from giving or providing a report or special report under the Ombudsman Act 1974 or the Police Act 1990 in relation to Operation Prospect."

In the facts and circumstances which have occurred this relief relates most directly to the provision of the Report prepared by the Acting Ombudsman into Operation Prospect to the Presiding Officers of the two Houses of the Parliament of New South Wales.
The proceedings generally are the subject of an Amended Summons filed on Friday 16 December 2016. It seeks relief against four defendants: Mr Bruce Barbour, the former Ombudsman who retired from office on 30 June 2015, who is the first defendant; Professor John McMillan, who was appointed the Acting Ombudsman for a two year period on 1 August 2015, who is the second defendant; Ms Linda Waugh, the Deputy Ombudsman (Police), who is the third defendant; and the Attorney General of New South Wales, who is the fourth defendant.
The only defendant who has been an active contradictor on the Notice of Motion has been the second defendant. It will be convenient to refer to him as the Ombudsman…

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.

Continue reading Kaldas v Barbour

Details

AGLC: Kaldas v Barbour [2016] NSWSC 1880
Case: [2016] NSWSC 1880
Decision Date: 20 December 2016

CaseChat Overview and Summary

The case of Kaldas v Barbour involved a dispute where the plaintiff sought to restrain the Ombudsman from providing a report to the Parliament. The legal issue at the heart of the case was whether there existed a serious question to be tried, and if the balance of convenience favoured granting interlocutory relief. The Federal Court was tasked with determining these questions in an interlocutory application.

The central legal issue before the Court was whether the plaintiff could demonstrate a serious question to be tried in relation to the Ombudsman's report, and if the balance of convenience favoured the plaintiff in seeking an interlocutory injunction. This required the Court to assess the merits of the plaintiff's case, including the likelihood of success and the potential for irreparable harm if the injunction were not granted. The Court also needed to weigh the potential prejudice to the public interest and the Ombudsman's duties if the injunction were granted.

The Court considered the evidence and arguments presented by both parties. It held that the plaintiff had not established a serious question to be tried, as the evidence did not support the likelihood of success on the merits. Furthermore, the Court found that the balance of convenience did not favour the plaintiff, as granting the injunction would significantly prejudice the public interest and the Ombudsman's role in ensuring transparency and accountability. Consequently, the Court dismissed the plaintiff's application for an interlocutory injunction.

In light of its findings, the Court dismissed the plaintiff's application and made no orders for costs. The decision underscores the high threshold that must be met for interlocutory relief to be granted, particularly in matters involving the Ombudsman and potential interference with parliamentary processes.

Orders