Kaldas v Barbour

This judgment determines an urgent application for interlocutory relief sought by Mr Nick Kaldas, formerly a Deputy Commissioner of Police in New South Wales, by way of a notice of motion filed on 6 December 2016. Mr Kaldas seeks the following interlocutory relief:

In the facts and circumstances which have occurred this relief relates most directly to the provision of the Report prepared by the Acting Ombudsman into Operation Prospect to the Presiding Officers of the two Houses of the Parliament of New South Wales.

The proceedings generally are the subject of an Amended Summons filed on Friday 16 December 2016. It seeks relief against four defendants: Mr Bruce Barbour, the former Ombudsman who retired from office on 30 June 2015, who is the first defendant; Professor John McMillan, who was appointed the Acting Ombudsman for a two year period on 1 August 2015, who is the second defendant; Ms Linda Waugh, the Deputy Ombudsman (Police), who is the third defendant; and the Attorney General of New South Wales, who is the fourth defendant.

The only defendant who has been an active contradictor on the Notice of Motion has been the second defendant. It will be convenient to refer to him as the Ombudsman or the defendant.

Ordinarily, a plaintiff seeking interlocutory relief must satisfy the Court of two matters. First, that he has a prima facie case, that is, he has a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending a final hearing. This is often referred to as the demonstration of a serious question to be tried.

Secondly, an applicant for interlocutory relief needs to show that the balance of convenience favours the granting of interlocutory relief. On this second matter the Court, is required to undertake an evaluative exercise which weighs up various discretionary considerations going to the justice of the grant of relief. This may include such matters as: whether damages would or would not be adequate compensation for any injury or damage which may be suffered if the interlocutory relief is not granted; the effect of a grant of relief upon the interests of third parties or the public generally; the availability of alternative remedies and the extent to which those alternative remedies would achieve the same or substantially similar results as the claimed relief; and any delay or other conduct which would tell against a party.

Because these are proceedings seeking to restrain a public officer from undertaking a public duty, the public interest is a relevant consideration for this Court to consider on the balance of convenience. The underlying statute is usually a good source from which an understanding of the public interest can be obtained.

One complication in terms of the grant of interlocutory relief in these proceedings is the existence of s 35A(1) of the Ombudsman Act 1974. It is in the following terms:

Section 35A(2) provides that civil proceedings cannot be brought against the Ombudsman without the leave of this Court.

At face value and in accordance with existing authorities which are either binding upon me or which I should follow unless persuaded they are clearly wrong, a plaintiff must be able to demonstrate before obtaining leave to proceed against the Ombudsman that he has acted or failed to act in bad faith.

On 13 December 2016, the plaintiff filed and served a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth). It raises the issue of whether, in light of the decision of the High Court of Australia in Kirk v The Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531, s 35A is a valid and lawful fetter on the supervisory jurisdiction of the Supreme Court of New South Wales.

The defendant accepts that the Notice was appropriately issued and that it raises a matter arising under the Constitution. He also accepts that the matter is one of substance. However, he submits that the point cannot succeed and that there is no reason to doubt the validity of the privative provision.

Both parties agree that although the substantive issue cannot presently be finally determined because insufficient time has elapsed since the service of the Notice, the Court nevertheless has power to determine whether to grant the kind of interlocutory relief which is sought in these proceedings.

At the risk of oversimplifying the issue, if s 35A is valid then the plaintiff will need to show the existence of bad faith before being entitled to proceed against the defendant and obtain any relief against him by way of judicial review. On the other hand, if s 35A is not valid, then the task confronting the plaintiff will be very much less complex because he will be able to proceed on the basis of judicial review simpliciter, without needing to prove any question of bad faith.

Although Senior Counsel for the defendant sought to argue that the Court should view s 35A as a mere gateway through which a plaintiff must first pass before having an opportunity to seek relief, there is an available view, particularly since the introduction of the Civil Procedure Act 2005 and in particular s 56 and the overriding purpose to which the Court is obliged to have regard, that in some cases, of which this seems to be one, the best course, as a matter of case management, is for the Court to hear and determine all questions at the one time, including that of the existence of bad faith. In those circumstances the existence of a statute requiring proof of bad faith seems to me to become a part of the substantive proceedings and not a mere gateway.

There are a number of judgments of this Court which have upheld the validity of s 35A and which have denied relief to its provisions; however none of these have been delivered since the decision of the High Court in Kirk. I am satisfied that, on this issue, namely the constitutional validity of s 35A, there is a serious question to be tried which ought in this case be regarded as a question of substance and not process.

Another complication to which it is convenient to turn is the existence of the Law Enforcement Conduct Commission Act 2016 (“the LECC Act”). By that Act, in November 2016, the oversight of police conduct in New South Wales was restructured.

The newly created Law Enforcement Conduct Commission (“the LECC”) is intended to be a single law enforcement oversight body under civilian and not police control. It is intended that it will exercise the functions currently undertaken by the Police Integrity Commission, the Ombudsman and the Inspector of the Crime Commission of New South Wales. The legislation gives effect to that purpose by transferring the Ombudsman's jurisdiction with respect to police conduct, which presently exists under Pt 8A of the Police Act, to the LECC.

In the Second Reading Speech delivered on 13 September 2016, the Minister for Police, Mr Troy Grant, told the Parliament that the transitional provisions which are to be found in Schedule 3 of the LECC Act confirmed "that responsibility for completing Operation Prospect will remain with the Ombudsman", but that "any new investigations arising out of Operation Prospect will be conducted by the LECC”.

The LECC Act was assented to on 14 November 2016. Only some parts of the Act commenced on that day. Schedule 3, which contains the transitional provisions, was not included in those parts which commenced on assent. Accordingly, it remains uncommenced.

Two relevant clauses in Schedule 3 which affect Operation Prospect are clauses 6 and 16. Clause 6 provides that the LECC can take over any complaint or other matter presently before the Ombudsman and can, to put it shortly, continue such matters as though the LECC and the Ombudsman were one and the same office. Clause 16(1), which deals with Operation Prospect, provides the exception to that provision. It is in the following terms:

It seems clear to me that the effect of this transitional clause is that once it commences, on a date chosen by the Government, then unless the Ombudsman has by that time delivered his report into Operation Prospect, he will have no power so to do. In other words, while the LECC Act does not affect anything done by the Ombudsman on Operation Prospect prior to the commencement of Schedule 3, with the exception of commencing a prosecution arising out of Operation Prospect, something which seems to me to be anathema to the role, purpose and function of the Ombudsman, the Ombudsman, contrary to the Police Minister's Second Reading Speech, ceases to have any power or capacity to do anything with respect to Operation Prospect, including delivering his report.

Senior counsel for the Ombudsman relied upon this construction and effect as demonstrating that as the proposed date of commencement of Schedule 3 was not known, the Court ought decline to grant interlocutory relief because of the risk that the delivery of the Ombudsman's report into Operation Prospect will be prevented by the commencement of Schedule 3.

I invited the Attorney General, who had initially appeared by her solicitor and who had determined that she would not take any active role in the interlocutory debate, to indicate to the Court what the intention of the government was with respect to the commencement of Schedule 3. It seemed to me to be an important question, the answer to which the Court ought know in determining where the balance of inconvenience lay.

On Monday 19 December 2016, the solicitor for the Attorney General appeared in Court and conveyed in what might be thought to be somewhat Delphic remarks the following position of the government:

Prior to making that statement, Mr McDonnell also informed the Court that:

Whilst this seems to have removed some of the urgency and the importance of this issue, the government may, despite what has been said, and depending upon any future event, decide, as it is perfectly entitled to, to change its mind and proceed with the commencement of the whole of the LECC Act forthwith. This matter will need to be kept in mind and taken into account in due course.

It is necessary to say something about Operation Prospect. The source of the summary which I am about to give is the various reports made by the defendant to Parliament and facts which are not in dispute between the parties.

Operation Prospect commenced in October 2012. It investigated allegations covering the conduct of police officers, officers of the New South Wales Crime Commission and officers of the Police Integrity Commission. The conduct which was being investigated occurred in the period 1998 to 2002. Operation Prospect specifically investigated circumstances surrounding two operations of the Crime Commission, namely Mascot I and Mascot II, and an operation of the Police Integrity Commission, namely Florida. The Ombudsman has received over three hundred separate complaints on the general subject matter. Many fell outside the defined scope of Operation Prospect. Currently 36 complaints are under investigation. One of the matters included in the investigation is the contents of a protected disclosure made by the plaintiff to the Commissioner of Police on 13 September 2012, which was referred to the Ombudsman.

Operation Prospect is a single investigation into police conduct under the Police Act and conduct under the Ombudsman Act. Accordingly, both pieces of legislation have effect on the way in which any investigation is undertaken and any report is to be prepared and delivered. The size of the investigation is very large indeed. It commenced when Mr Barbour, the first defendant, was the Ombudsman. In a report dated 4 November 2015, the progress of Operation Prospect was made known to Parliament by the defendant. He said:

A second progress report was made by the defendant on 15 June 2016. He described his intention in this way:

The defendant further described what he had done since the first progress report.

A reasonable summary of all of this material can be found in the defendant's submissions. It says and I accept:

The Court must determine whether the plaintiff has shown that there is a serious question to be tried. The plaintiff raises broadly these issues:

In order to grant interlocutory relief, the Court does not have to find that each of these issues raises a serious question to be tried. Rather, it is sufficient if one of them does.

The defendant submitted that none of these issues raised any serious question to be tried. He submitted that these claims were either legally wrong, premature, sought in circumstances where there would be no utility to grant relief, and finally, that the plaintiff would be unable to satisfy the high threshold required for a quia timet injunction.

The arguments on both sides were complex, lengthy and detailed. I am indebted to counsel for their industry. The delivery of an interlocutory judgment within the time constraints of this one does not allow for the luxury of extensive reasons of the kind delivered after a final hearing.

I accept that the case being made for the plaintiff is neither easy nor straightforward and as things presently appear, although they may be different at a final hearing, a number of the defendant's arguments seem persuasive. However, it does seem to me that there is, at least with respect to the issue raised by prayer 12, a serious question to be tried with respect to whether the Ombudsman has the power to find that a person has committed perjury or else committed the offence of giving false evidence, where a notice served under s 16 of the Ombudsman Act does not include such conduct as a subject of an investigation. The question of whether the Ombudsman cannot make such a finding or whether he can nevertheless comment on such a matter in the report to Parliament also raises a serious question to be tried. Whether the plaintiff's argument would ultimately succeed is a matter for the final hearing and I specifically express no view about that or any of the other issues raised by the plaintiff.

I am also satisfied, as I have earlier noted, that the issue raised by the s 78B Notice about the validity of s 35A of the Ombudsman Act is also a serious question to be tried. This means that the plaintiff has satisfied the Court of the first of the two matters necessary to obtain interlocutory relief.

I turn now to the second matter, namely, the balance of convenience, which seems to me to present a number of problems and difficulties.

The plaintiff submits that the balance of convenience favours the granting of interlocutory relief because if adverse findings are made about him and are published, the reputational harm caused will not be able to be undone even if he subsequently succeeds in one of more of his claims. As well, he submits that these proceedings would be effectively, or largely, rendered nugatory if relief is refused and the defendant publishes his report.

He submits that any interlocutory relief would not unduly impact the defendant, because it would only restrain publication of the report and therefore not in any way impact upon the carrying out of any further work in Operation Prospect. Finally, he also submitted that as Operation Prospect has been going on for about four years, any disruption to the defendant's self-imposed deadline of delivering the report to Parliament on or before midday today would be for only a relatively short time in the context of what has occurred and that such a self-imposed deadline ought not stand in the way of interlocutory relief.

The Ombudsman submits that the balance of convenience favours the delivery of the report to Parliament and its publication without restriction. He submits that the strength of the public interest favours publication of the report, that there would be prejudice if Operation Prospect and his report into it could not be completed, that irreparable harm would not be caused to the plaintiff and that the plaintiff has unduly delayed bringing these proceedings.

It can be accepted that the publication of an Ombudsman's report which is critical of this plaintiff, or a person in his position, may lead to damage to his reputation. It can also be accepted that some of that damage may continue for a considerable period of time. In part, this is why in the conduct of an investigation by an Ombudsman and up until the preparation of his final report obligations of natural justice exist. To acknowledge this does not define the content of those obligations.

As Gleeson CJ said in ICAC v Chaffey (1993) 30 NSWLR 21 at 29, when discussing the question of proceedings being held in public during which individual reputations may be harmed:

An analogy exists here – namely that there is no requirement for the Ombudsman in preparing a report and providing it to Parliament, to protect an individual from adverse publicity.

I do not accept the submission from Senior Counsel for the plaintiff that, if the report adversely impacts Mr Kaldas’ reputation, later proceedings will not be capable of rectifying that adverse impact to some measure. The High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 recognised the beneficial impact and effect of a declaration made after the delivery of an administrative report which was unsoundly based. A declaration, it seems to me, is capable of having some, albeit limited, ameliorating effect on any damage to reputation.

I accept, as Senior Counsel for the Ombudsman put, that there is a significant public interest in the delivery of a report with respect to Operation Prospect to the Parliament. This public interest derives in part from the object and purpose of an Ombudsman and the role which the Ombudsman fulfils. As Enderby J said in Ainsworth v The Ombudsman (1988) 17 NSWLR 276 at 283:

This statement about the nature of the Ombudsman’s office reflects earlier remarks in this Court by Lee J in Moroney v The Ombudsman (1982) 2 NSWLR 591 at 597. There his Honour said this:

I accept that these extracts adequately identify the object, purpose and role of an Ombudsman. It follows that there is a significant and strong public interest in the delivery of any report of an Ombudsman to Parliament, which may reflect the result of the bright “lamp of scrutiny” shining on ”… otherwise dark places”.

The particular circumstances of this report make that public interest all the more compelling. It appears that this report covers many more individuals than the plaintiff. It covers the operations of two bodies, the Crime Commission and the Police Integrity Commission, in respect of both of which the public are entitled to have confidence that they act in accordance with the law and proper principles of good public administration. Those who are subject to potential vindication by the investigation into Operation Prospect are entitled to know the Ombudsman's views; each of the 36 complainants are entitled to know what the disposition of his or her complaint is and those who may be criticised are entitled to know what conclusions the Ombudsman has reached and how he has reached them.

In my view, the public interest very strongly favours enabling the Ombudsman to complete the investigation into Operation Prospect by delivering his report to the Parliament. In my view, this public interest alone is sufficient to outweigh the plaintiff's interests in protecting any harm and damage to his reputation. The fact that I have found that the plaintiff has proved that there is one or more serious questions to be tried does not mean that the risk of the delivery of a report which may be legally invalid in whole or in part outweighs this public interest. That is because the Court ought assume unless positively demonstrated otherwise, and no such demonstration has occurred here, that the Ombudsman will act in accordance with the law or at least use his best endeavours so to do, in writing the Report and delivering it to Parliament.

There are other factors as well which must be considered. The risk to the completion of the Ombudsman's report by the commencement of Schedule 3 of the LECC Act remains, but should not be given any significant weight in light of the information communicated by the Attorney General to the Court.

As well, the plaintiff has delayed seeking relief. On 29 June 2015, the plaintiff was provided with the provisional findings proposed to be made by the first defendant, who was then still the Ombudsman. The plaintiff was invited to provide submissions in response to those provisional findings. He did so on more than one occasion. His final submissions in response were provided to the defendant on 19 May 2016.

On 7 June 2016, lawyers for the plaintiff requested undertakings from the defendant and provided to him a draft summons seeking relief.

On 21 June 2016, the Ombudsman responded to the plaintiff's lawyers and stated that he was unable to provide the undertakings sought. It was clear by that time from the public statement made by the Ombudsman to the relevant Parliamentary committee that it was likely that he would provide a report to the Parliament towards the end of 2016 and probably as late as November.

For reasons which are not apparent from the evidence, although the draft summons covered many, although not all, of the grounds upon which the plaintiff now moves this Court for relief, no proceedings were taken in June or July 2016 as the plaintiff foreshadowed. Of itself and without more that delay would not mean that interlocutory relief should be refused. It is, however, a relevant factor to be weighed in the balance.

Mason CJ, in The State of Queensland v The Commonwealth of Australia [1988] HCA 1; (1988) 62 ALJR 143, described the delay in that case which was of an approximately similar period to that here, as being “… an important factor which tells against the plaintiffs in making their application for interlocutory relief”. As Mason CJ pointed out, had the plaintiffs in that case moved for relief in a prompt and timely way, the issues could have been determined prior to the relevant date in that case for the taking of the steps necessary to effect a World Heritage Listing for an area of wet tropical forest in North Queensland..

Here, had the plaintiff commenced proceedings at an earlier point in time, then there is no doubt that this Court would have had the opportunity and time to have held a final hearing before now, and determined the issues raised by the plaintiff.

Taking all matters into account, I consider that the balance of convenience favours the refusal of a grant of interlocutory relief. Subject to what falls for consideration below, this would lead to the dismissal of the claim for interlocutory relief.

A further matter needs to be considered. As I have earlier said, the Ombudsman indicated he proposed to make a recommendation, as s 31(2) of the Ombudsman Act permits, that his report be made public forthwith. The Ombudsman is not obliged to make such a recommendation. It is a matter for him to choose whether he will or he will not. Section 161(2) of the Police Act 1990 is to a similar effect.

In other words, relevantly under the legislation, the Ombudsman has a discretion in relation to reports of this kind to decide whether to include a recommendation that the report be made public. If such a recommendation is made, then the effect of it seems to me to be that the presiding officers of the Parliament have a discretion as to whether they will make the report public prior to the Parliament sitting.

Whether or not a recommendation is made, it is clear from the legislation that if a report is made or furnished to the presiding officers, that it must be laid before the relevant House on the next sitting day of that House after it is received by the presiding officer. Here I am told that the next sitting day for both Houses is 14 February 2017. If the presiding officers make the report available, pursuant to their legislative discretion, then the significance is that the Report would attract the same privileges and immunities upon publication as it would have been when laid before the House.

A question arises then of whether, even if I am satisfied that the balance of convenience does not favour the granting of interlocutory relief in the terms sought, nevertheless the Court should make a restraining order different from that sought by the plaintiff, namely, one which simply restrains the Ombudsman from recommending that the report be made public. The effect of such a restraint would be that it would not be open to the presiding officers to make the report public prior to the first day of the Parliamentary sitting after they receive the report, which in practical terms would be 14 February 2017.

However, as Senior Counsel for the Ombudsman has pointed out, even if a report is delivered to Parliament, and it does not contain a recommendation that it be made public, copies of the report would need to be provided to a number of people in addition to the presiding officers. That is because of the effect of either or both of the Police Act and the Ombudsman Act. The relevant Minister, for example, must be provided with the report; the Commissioner of Police, it seems to me, being the head of the relevant public authority, may be entitled to be provided with a copy of the report; and the 36 complainants may be entitled to be provided with a copy of the report or at least such part of it as concerns them. No restriction on publication exists with respect to any of these additional recipients.

Whilst I was initially attracted to the proposition that it would be appropriate to make an order restraining the Ombudsman from recommending that the report be made public, that initial attraction needs to be balanced with the practical reality that if 38 copies of this report are provided to people who are not themselves bound to keep the report confidential or private, then it is inevitable that one or more copies of the report will make its way into the public domain. If that occurs, and the presiding officers have not pursued the legislative release of the report for public information, considerable difficulties will occur in the public reporting of the contents of any report. That is because it will not attract the privileges and immunities of a document tabled in Parliament.

I am not confident, therefore, that imposing a restriction on the Ombudsman, with respect to making a recommendation that the report be made public, will in fact preclude any adverse publicity affecting Mr Kaldas, or others, nor am I satisfied that it would be in the interests of good public administration to impose such a restriction. I take into account that the purpose and role of the Ombudsman is to report to Parliament, with the consequence that the report ultimately becomes public.

It seems to me that, by imposing the restriction to which I was initially attracted, I would in fact be creating a good deal of difficulty in the ordinary administration of the function and role of the Ombudsman without in fact achieving the purpose of providing an additional protection against the possible reputation or harm to the plaintiff. I am not prepared to impose such a restriction where it was not sought by any party.

In summary, I have concluded that there are one or more serious questions to be tried, but that the plaintiff has not demonstrated that the balance of convenience favours the granting of interlocutory relief.

Accordingly, the application for interlocutory relief is dismissed. Counsel should bring in short minutes of order to deal with the procedural requirement of the substantive proceedings.