Kazal v Independent Commission Against Corruption [2019] NSWSC 556

Supreme Court New South Wales

Medium Neutral Citation: Kazal v Independent Commission Against Corruption [2019] NSWSC 556 Hearing dates: 8 February 2019 Decision date: 24 May 2019 Jurisdiction: Common Law Before: N Adams J Decision: (1) The proceedings are dismissed summarily under Uniform Civil Procedure Rules 2005 (NSW) r 13.4.

(2) The plaintiff is to pay the defendants' costs.

(3) The question of whether the costs are to be paid on an indemnity basis is reserved. Catchwords: CIVIL PROCEDURE – summary dismissal – striking out of statement of claim – where Independent Commission Against Corruption made findings plaintiff acted corruptly – where findings were referred to Director of Public Prosecutions but no charges laid – where plaintiff brought judicial review proceedings against those findings and lost – whether Independent Commission Against Corruption's report ultra vires – whether statement possessed by the Independent Commission Against Commission when it made findings exculpatory and/or improperly withheld – whether proceedings have no prospect of success – whether claim improperly pleaded and inadequately particularised – Uniform Civil Procedure Rules 2005 (NSW) rr 13. 4, 14.28

TORTS – misfeasance in public office – where plaintiff seeks declaration that defendants engaged in misfeasance in public office – whether Independent Commission Against Corruption's correspondence with the DPP malicious, or reckless with intent to cause injury, reputational and financial harm – whether conduct beyond power – whether foreseeable risk of harm Legislation Cited: Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Crown Proceedings Act 1988 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Place Management NSW Act 1998 (NSW) Sydney Harbour Foreshore Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929 Dainford Ltd v ICAC (1990) 20 ALD 207 Dainford Ltd v Independent Commission Against Corruption (ICAC) (1990) 20 ALD 233 Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 Duncan v Independent Commission Against Corruption [2014] NSWSC 1018; (2014) 311 ALR 750 Edward Moses Obeid Snr v David Andrew Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Glynn v ICAC (1990) 20 ALD 214 Kazal v Independent Commission Against Corruption [2013] NSWSC 53 Kazal v Independent Commission Against Corruption [2018] NSWSC 1370 Obeid v Lockley [2018] NSWCA 71; (2018) 355 ALR 615 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Category: Principal judgment Parties: Charif Kazal (Plaintiff) Independent Commission Against Corruption (First Defendant) The Honourable David Ipp QC (Second Defendant) Representation: Counsel: In person (Plaintiff) Zelie Heger (First Defendant) Stephen Free SC with Perry Herzfeld (Second Defendant)