ICAC chalks-up another win … Corrupt businessman’s notice to produce sent packing … Seeking documents related to findings about property deals at The Rocks … Journalist’s campaign against ICAC founders … Bizarre straddle on UN meddling in our precious sovereignty … Nick Bonyhady reports
On September 7, Justice David Davies in the NSW Supremes rejected Kazal’s notices to produce, which he had filed in an attempt to access all communications between ICAC, its witnesses, the DPP, the Premier’s office, and any other third parties relating to Operation Vesta.
This outcome leaves The Australian’s legal affairs scribbler, Chris (The Tamil) Merritt, who has been fighting in Charif’s corner, looking a bit like a shag on a rock.
Justice Davies described one purpose of the notices as a “classic example of a fishing expedition” because, in part, the broad scope of Kazal’s requests did not identify a “specific document or thing” as required by the UCPR.
Kazal failed to show a “reasonable basis beyond speculation that the documents will materially assist in making out the particular issues pleaded”.
Consequently, HH found that “no legitimate forensic purpose has been shown” and in any case, disclosure was prevented by the secrecy provisions of the ICAC Act.
Kazal is seeking a declaration that Operation Vesta’s report was ultra vires and that ICAC, its former commissioner David Ipp QC, and the State of NSW engaged in misfeasance in public office.
A similar misfeasance case brought by various Obeids against the State of New South Wales, ICAC commissioner David Ipp QC, Geoffrey Watson SC, and two ICAC investigators was dismissed by Justice David Hammerschlag in September 2016.
In 2013, Kazal’s previous claim against ICAC – that it had overreached its jurisdiction and made errors of law – ended ignominiously. In that case, Justice Ian Harrison concluded that “the commission made no error and did not exceed its jurisdiction”.
Both proceedings stem from Operation Vesta, in which ICAC investigated the conduct of Andrew Kelly, an officer with the Sydney Harbour Foreshore Authority (SHFA) and made a finding of corrupt conduct against him.
Across 2007 and 2008, Kelly had oversight of buildings in The Rocks owned by the SHFA that were leased to the Kazals. At the same time ICAC found Kelly either was in business with the Kazals, or expected to be. With respect to Charif Kazal, ICAC found:
“In holding out the prospect of employment in the UAE to Mr Kelly and paying him $11,170 for his May 2007 flight and accommodation expenses, with the intention that these would tend to influence Mr Kelly to exercise his official SHFA functions in a manner favourable to Kazal business interests, Charif Kazal’s conduct is corrupt.”
ICAC did not recommend that the DPP prosecute Kazal because the commission does not apply the same rules of evidence as the criminal law.
According to The Tamil in The Australian, that meant that Kazal is “one of the victims of ICAC’s injustice” because he has been deprived of his right to be presumed innocent until proven guilty.
Kazal took his complaint against ICAC to the United National Human Rights Committee, but it has been far from plain sailing. So concerned is Merritt about ICAC’s adverse finding that he is now rooting for the UNHRC to take up the case, a body that is usually anathema for New Corp scribes.
The UNHRC only accepts complaints when there is no hope for a domestic solution, both out of respect for member states’ sovereignty and to ensure that it has a reasonable workload.
The Attorney General’s Department wrote to the UNHRC noting that Kazal had not exhausted his domestic remedies and asked that the case be thrown out.
According to Merritt, Attorney General “Christian” Porter intervened by asking his department to write again to the Human Rights Committee asking that Kazal’s complaint merely be suspended rather than thrown out. It was a “laudable” action, according to the Merritt story.
“When Porter found out he intervened in a way that, while not siding with Kazal, looks like ensuring this man’s quest for justice is not thrown out on a technicality before the merits of the argument can be heard.”
When Peter Dutton refused to sign-up to a refugee pact, under the auspices of the UN, Merritt enthusiastically agreed with the minister, saying that Australia’s sovereignty was at stake.
When an agency of the UN seeks to meddle with migration matters, that is bad. When another UN agency is asked to meddle in a finding of corruption, that is good.
Charif and his brother Adam are delightful characters and need all the media support they can muster.
In February 2017, a bankrupt Adam Kazal was sentenced by Justice Steven Rares in the Federal Court to 18 months porridge after “deliberately and very publicly” defying court orders.
Adam had arranged for vans to drive around Sydney bearing defamatory remarks about a former business colleague, Rodric David. The message on the vans encouraged people to visit a website run by Charif, which sought to “expose” Mr David.
The court had earlier ordered Adam to stop these mobile defamatory billboards, yet the practice continued although without the photos of Mr David emblazoned on the vehicles.