NSW Caselaw
Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kaldas v Barbour [2017] NSWCA 275 Hearing dates: 8-9 June 2017 Date of orders: 24 October 2017 Decision date: 24 October 2017 Before: Bathurst CJ at [1]; Basten JA at [205]; Macfarlan JA at [380] Decision: 1. The questions referred for determination by the Court should be answered as follows:
Question 1: Assuming s 35A of the Ombudsman Act 1974 is valid: (a) are the claims in the Further Amended Summons filed 13/2/2017 precluded in whole or in part by s 35A(1)? (b) does this Court have power to grant leave pursuant to s 35A(2) nunc pro tunc following a hearing on the merits of the Further Amended Summons?
Answer: On the basis that s 35A is valid, (a) the claims in the further amended summons are wholly precluded by s 35A(1); (b) no.
Question 2: If the claims in the Further Amended Summons are precluded, in whole or in part, by s 35A(1): (a) is s 35A invalid on the grounds of the doctrine in Kirk v Industrial Relations Commission (2010) 239 CLR 531? (b) if so can any invalid part of s 35A be severed and/or read down and, if so, in what way?
Answer: In respect of (a) – Section 35A is not invalid on the ground that it exceeds the power of the State Parliament as constrained by Chapter III of the Constitution. In respect of (b) – The question does not arise.
Question 3: Which, if any, claims in the Further Amended Summons are made pursuant to s 35B(1) of the Ombudsman Act?
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