Edward Moses Obeid Snr -v- David Andrew Ipp [2016] NSWSC 1376

Supreme Court New South Wales

Medium Neutral Citation: Edward Moses Obeid Snr -v- David Andrew Ipp [2016] NSWSC 1376 Hearing dates: 2, 3, 4, 8, 9, 10, 11, 15, 16, 17 August 2016 Decision date: 27 September 2016 Jurisdiction: Common Law Before: Hammerschlag J Decision: Plaintiffs' claims dismissed. Catchwords: ADMINISTRATIVE LAW — STATUTES — Independent Commission Against Corruption Act 1988 (NSW) ("the Act") — inquiry into allegations of corruption — requirement to provide procedural fairness to potentially affected persons — claim by the plaintiffs for declaratory relief that they were denied procedural fairness by reason of the non-disclosure of a number of specified matters — HELD: denial of procedural fairness not established — the plaintiffs had an adequate opportunity to deal with the relevant subject matter — the plaintiffs were not deprived of the possibility of a successful outcome.

TORT — Misfeasance in public office — requirements for liability — whether defendants held public office — whether they knowingly or recklessly exceeded powers — whether they were reckless as to whether plaintiffs would suffer damage — whether plaintiffs suffered damage — CLAIM that ICAC committed misfeasance by knowingly denying procedural fairness — HELD: plaintiffs not denied procedural fairness — damage not established — CLAIM that Commissioner committed misfeasance in public office by making a suppression order which he knew he had no power to make — HELD: not established that the Commissioner had no power — not established that the Commissioner knew he had no power — no damage established — CLAIM that Counsel Assisting committed misfeasance in public office by cross-examining on a knowingly false premise — HELD: Counsel Assisting did not occupy public office — existence of false premise not established — no damage established — Counsel Assisting entitled to barristers' immunity — CLAIM that ICAC investigators who executed search warrant committed misfeasance in public office by causing videotaping of documents outside search warrant — HELD: investigators executing search warrant did not hold public office — held they did knowingly engage in conduct beyond power — knowledge or recklessness of damage to be suffered not established — no damage established. Legislation Cited: Barristers Rules 2011 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Legal Profession Uniform Law (NSW) Uniform Civil Procedure Rules 2005 (NSW) Victorian Police Regulation Act 1958 (Vic) Cases Cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 Australian Competition and Consumer Commission v Radio Rentals Ltd (2005) 146 FCR 292 Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd (2015) 323 ALR 570 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 Cannon v Tahche (2002) 5 VR 317 Chappel v Hart (1998) 195 CLR 232 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Cornwall v Rowan (2004) 90 SASR 269 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Ex parte Aala (2000) 204 CLR 82 Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229 Frank Davies Pty Ltd v Container Haulage Group Pty Ltd (No 2) (1989) 98 FLR 324 Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202 Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 Jones v Dunkel (1959) 101 CLR 298 Kioa v West (1985) 159 CLR 550 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 Leerdam v Noori (2009) 227 FLR 210 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 (2003) 211 CLR 441 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1 Moder v Commonwealth of Australia (2012) 261 FLR 396 Northern Territory v Mengel (1995) 185 CLR 307 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 Porter v OAMPS Ltd (2005) 215 ALR 327 Poynder v Kent [2008] VSCA 245 Rosenberg v Percival (2001) 205 CLR 434 Ruddock v Taylor (2005) 222 CLR 612 Sanders v Snell (1998) 196 CLR 329 Shields v Overland (2009) 26 VR 303 Slaveski v Victoria [2010] VSC 441 South Australia v Lampard Trevorrow (2010) 106 SASR 331 Stead v SGIO (1986) 161 CLR 141 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Tampion v Anderson (No 2) [1973] VR 715 Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 WZARH v Minister for Immigration and Border Protection (2015) 90 ALJR 25 Texts Cited: C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, 2011, Thompson Reuters) R P Balkin and J L R Davis, Law of Torts (5th ed, 2013, Lexis Nexis) Category: Principal judgment Parties: Edward Moses Obeid Snr - First Plaintiff Moses Edward Obeid - Second Plaintiff Paul Edward Obeid - Third Plaintiff Edward Joseph Obeid Jnr - Fourth Plaintiff David Andrew Ipp - First Defendant Geoffrey Maurice Watson - Second Defendant Grant Lockley - Third Defendant Paul Anthony Grainger - Fourth Defendant The Independent Commission Against Corruption - Seventh Defendant Representation: Counsel: C R C Newlinds SC with D R Sulan and A J O'Brien - Plaintiffs B Walker SC with S Free and P Herzfeld - First Defendant D A McLure SC with P G Sharp - Second Defendant P Braham SC with R Scruby - Third Defendant E Cheeseman SC with J Hutton and Ms S Patterson - Fourth Defendant J K Kirk SC with A M Mitchelmore and C G Winnett - Seventh Defendant