Kazal v Independent Commission Against Corruption [2013] NSWSC 53

Supreme Court New South Wales

Medium Neutral Citation: Kazal v Independent Commission Against Corruption [2013] NSWSC 53 Hearing dates: 5 February 2013 Decision date: 07 February 2013 Jurisdiction: Common Law Before: Harrison J Decision: Summons dismissed with costs Catchwords: ADMINISTRATIVE LAW - Independent Commission Against Corruption - finding of corrupt conduct - Independent Commission Against Corruption Act 1988 s 9(1)(a) - "could constitute or involve...a criminal offence" - whether necessary for Commission to be satisfied of facts to the criminal standard - whether necessary for Commission to make findings based only upon evidence admissible at a criminal trial Legislation Cited: Crimes Act 1900 Independent Commission Against Corruption Act 1988 Cases Cited: Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Category: Principal judgment Parties: Charif Kazal (Plaintiff) Independent Commission Against Corruption (Defendant) Representation: Counsel: R F Sutherland SC and M Castle (Plaintiff) T Alexis SC and A Mitchelmore (Defendant) Solicitors: Mitry Lawyers (Plaintiff) Crown Solicitor (Defendant) File Number(s): 2012/95312

Judgment 1HIS HONOUR: By his summons filed on 26 March 2012, Charif Kazal originally sought the following orders: 1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid or unlawful the report of the defendant, made in December 2011 purportedly pursuant to section 74 of the Independent Commission Against Corruption Act 1988 styled "Investigation into the Undisclosed Conflict of Interest of A Senior Executive of the Sydney Harbour Foreshore Authority". 2. A declaration that the report was made without jurisdiction or in excess of jurisdiction and was a nullity. 3. A declaration that on the facts as found in the report the determinations or findings were wrong in law. 4. An order in the nature of prohibition or, alternatively, an injunction preventing the defendant or any of its officers, servants or agents from acting on or taking any further step in reliance upon the report. 2By the time that this matter came before me for hearing, Mr Kazal had abandoned the first and fourth prayers for relief sought in his summons. Only the second and third prayers for relief were pressed. 3Mr Kazal claims that he is entitled to this relief because he contends that the Commission's report delivered to the NSW Parliament in December 2011 purportedly pursuant to s 74 of the Independent Commission Against Corruption Act 1988 contains a number of jurisdictional errors or errors of law on the face of the record. Alternatively, Mr Kazal says that the Commission constructively failed to exercise its statutory power in making the report. He also says that the Commission made a number of errors in its reasons for decision and in the findings that it made. These are all referred to below in more detail.