Kaldas v Barbour

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.