State of New South Wales v Malek Fahd Islamic School Limited

The case of State of New South Wales v Malek Fahd Islamic School Limited involves the Malek Fahd Islamic School Limited (the school) seeking judicial review of a decision by the New South Wales government to refuse it funding. The school alleges that the decision was made on the basis that it was operating for profit, which the Education Act prohibits. The dispute was heard in the Supreme Court of New South Wales. The state of New South Wales applied for leave to file a cross-claim and to strike out an existing cross-claim filed by the school. The court needed to determine whether the school's cross-claim had arguable merit, specifically whether it raised questions of statutory construction, and whether the challenge lacked utility due to subsequent legislative changes.

The primary legal issues before the court were whether the school's cross-claim raised arguable questions of statutory construction and whether the challenge was futile due to subsequent legislative amendments. The court also considered whether the fact that a non-government school is operating for profit is a jurisdictional fact or merely an opinion that it is operating for profit. The court concluded that the school's cross-claim raised arguable questions of statutory construction, which were not resolved on the application for leave or the application to strike out. The court found that the issue of whether the school was operating for profit was a matter of statutory construction rather than merely an opinion. Consequently, the court held that the cross-claim was not futile despite the legislative changes, as the core issues of statutory interpretation remained.

The Supreme Court of New South Wales granted the school leave to file its cross-claim and denied the state's application to strike out the existing cross-claim. The court found that the school's cross-claim had arguable merit because it raised questions of statutory construction that had not been resolved. The court also found that the issue of whether the school was operating for profit was a matter of statutory interpretation, not merely an opinion, and that the cross-claim was not futile despite subsequent legislative changes. The court held that the core issues of statutory interpretation remained, and therefore, the challenge was not without utility. The final orders of the court were to grant the school leave to file its cross-claim and to deny the state's application to strike out the existing cross-claim.