State of New South Wales v Malek Fahd Islamic School Limited [2016] NSWSC 1529

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Malek Fahd Islamic School Limited [2016] NSWSC 1529 Hearing dates: 18 October 2016 Date of orders: 31 October 2016 Decision date: 31 October 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) On or before 14 November 2016, the cross-claimant serve a further draft cross-claim on the cross-defendants.

(2) The parties confer in relation to the orders necessary to dispose of the cross-claimant's Notice of Motion filed 29 September 2016 and the cross-defendant's Notice of Motion filed 11 October 2016.

(3) The proceedings stand over for directions at 9:30am on 28 November 2016 before Beech-Jones J. Catchwords: PLEADINGS – application for leave to file cross-claim – application to strike out existing cross claim – Education Act – prohibition on provision of assistance to non-government school operating for profit – cross-claim seeks judicial review of decision to refuse funding – whether challenge lacks utility because of later decisions – whether school operating for profit is jurisdictional fact or only opinion that school is operating for profit is a jurisdictional fact – arguable questions of statutory construction not decided on application for leave or application to strike out pleading Legislation Cited: Education Act 1990 (NSW) Education Amendment (Not-for-profit Non-Government School Funding) Act 2014 (NSW) Cases Cited: Auckland Harbour Board v The King [1924] AC 318 Comptroller‑General of Customs v ACI PET Operations Pty Ltd (1994) 49 FCR 56 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 Plaintiff M70/2011 v Minister for Immigration and Citizenship; ("the Malaysian Declaration case") [2011] HCA 32; (2011) 244 CLR 144 Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Malek Fahd Islamic School Limited (Defendant/Cross Claimant) Minister for Education (Cross Defendant) Representation: Counsel: Ms J Davidson (Plaintiff) Mr A Cheshire SC (Defendant)