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Kazal v Independent Commission Against Corruption

Kazal v Independent Commission Against Corruption

Case [2019] NSWSC 556 24 May 2019

Summary Judgment

Misfeasance in Public Office

Res Judicata

Causation

Civil Litigation & Procedure

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kazal v Independent Commission Against Corruption [2019] NSWSC 556
Hearing dates: 8 February 2019
Decision date: 24 May 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The proceedings are dismissed summarily under Uniform Civil Procedure Rules 2005 (NSW) r 13.4.

(2) The plaintiff is to pay the defendants’ costs.
(3) The question of whether the costs are to be paid on an indemnity basis is reserved.
Catchwords:
CIVIL PROCEDURE – summary dismissal – striking out of statement of claim – where Independent Commission Against Corruption made findings plaintiff acted corruptly – where findings were referred to Director of Public Prosecutions but no charges laid – where plaintiff brought judicial review proceedings against those findings and lost – whether Independent Commission Against Corruption’s report ultra vires – whether statement possessed by the Independent Commission Against Commission when it made findings exculpatory and/or improperly withheld – whether proceedings have no prospect of success – whether claim improperly pleaded and inadequately particularised – Uniform Civil Procedure Rules 2005 (NSW) rr 13. 4, 14.28
TORTS – misfeasance in public office – where plaintiff seeks declaration that defendants engaged in misfeasance in public office – whether Independent Commission Against Corruption’s correspondence with the DPP malicious, or reckless with intent to cause injury, reputational and financial harm – whether conduct beyond power – whether foreseeable risk of harm
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Crown Proceedings Act 1988 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Place Management NSW Act 1998 (NSW)
Sydney Harbour Foreshore Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32
Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929
Dainford Ltd v ICAC (1990) 20 ALD 207
Dainford Ltd v Independent Commission Against Corruption (ICAC) (1990) 20 ALD 233
Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1
Duncan v Independent Commission Against Corruption [2014] NSWSC 1018; (2014) 311 ALR 750
Edward Moses Obeid Snr v David Andrew Ipp [2016] NSWSC 1376; (2016) 338 ALR 234
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Glynn v ICAC (1990) 20 ALD 214
Kazal v Independent Commission Against Corruption [2013] NSWSC 53
Kazal v Independent Commission Against Corruption [2018] NSWSC 1370
Obeid v Lockley [2018] NSWCA 71; (2018) 355 ALR 615
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Category: Principal judgment
Parties: Charif Kazal (Plaintiff)
Independent Commission Against Corruption (First Defendant)
The Honourable David Ipp QC (Second Defendant)
Representation:
Counsel:
In person (Plaintiff)
Zelie Heger (First Defendant)
Stephen Free SC with Perry Herzfeld (Second Defendant)
Solicitors:
In person (Plaintiff)
Crown Solicitors Office (First…

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 Kazal v Independent Commission Against Corruption

Details

AGLC: Kazal v Independent Commission Against Corruption [2019] NSWSC 556
Case: [2019] NSWSC 556
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the matter of Kazal v Independent Commission Against Corruption, the plaintiff sought a declaration that the Independent Commission Against Corruption (ICAC) had engaged in misfeasance in public office by maliciously or recklessly causing harm to the plaintiff’s reputation and finances. The High Court of Australia was tasked with determining the propriety of the ICAC's actions and the merits of the plaintiff's claims.

The court considered several legal issues, including whether the ICAC's report was ultra vires, whether certain exculpatory documents were improperly withheld, and whether the plaintiff's claims were adequately pleaded and particularised. Furthermore, the court assessed whether the proceedings had any prospect of success and whether the plaintiff's claims were improperly pleaded and inadequately particularised under the Uniform Civil Procedure Rules 2005 (NSW). The court also examined the tort of misfeasance in public office, focusing on whether the ICAC's actions were malicious, reckless, or beyond their statutory powers.

The court found that the ICAC's report was not ultra vires, and the plaintiff had not demonstrated that any exculpatory documents were improperly withheld. The court concluded that the plaintiff's claims were improperly pleaded and inadequately particularised, leading to the summary dismissal of the proceedings under the Uniform Civil Procedure Rules. The court also held that the plaintiff's claims for misfeasance in public office lacked sufficient evidence of malice or recklessness on the part of the ICAC, and that the ICAC's conduct was within their statutory powers. Therefore, the plaintiff's claims were dismissed.

The court ordered that the plaintiff pay the defendants' costs of the proceedings. This included the costs of the application for summary dismissal, as well as any other costs incurred by the defendants in defending the proceedings. The dismissal of the plaintiff's claims and the awarding of costs to the defendants concluded the matter, with the court affirming the propriety of the ICAC's actions and the inadequacy of the plaintiff's claims.

Orders