Supreme Court New South Wales Medium Neutral Citation: Joukhador v State of New South Wales [2024] NSWSC 1526 Hearing dates: 27 November 2024 Date of orders: 27 November 2024 Decision date: 27 November 2024 Jurisdiction: Common Law Before: Fagan J Decision: (1) The notices of motion filed by the defendant on 28 May 2024 and by the plaintiff on 11 June 2024 are dismissed. (2) Each party is to bear his or its own costs of the respective notices of motion including the costs of arguing the costs orders for those applications today. Catchwords: COSTS – no order for the costs of the notices of motion – parties to pay own costs Legislation Cited: Crimes Act 1900 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Telecommunications (Interception and Access) Act 1979 (Cth) Cases Cited: Joukhodar v Commissioner of Police [2017] NSWSC 1653 Category: Costs Parties: Marcel Joukhador (plaintiff) State of New South Wales (defendant) Representation: Counsel: S Tzouganatos (Plaintiff) R Coffey (Defendant) Solicitors: Turner Freeman (Plaintiff) Crown Solicitor's Office NSW (Defendant) File Number(s): 2023/164546 Publication restriction: No JUDGMENT 1. Before the Court are competing applications for costs in relation to two notices of motion, one filed by the plaintiff and one by the defendant. The claims for interlocutory relief on the notices of motion have been resolved by agreement. Ordinarily the Court would in these circumstances not embark on a hearing to determine only the question of costs but would simply make no order leaving it to the parties to bear their own. However, the plaintiff here submits that the first defendant capitulated in relation to both applications and acted unreasonably in causing them to be litigated as far as they were. The plaintiff therefore seeks that the defendant pay his costs of both notices of motion. The defendant's position is that the parties should bear their own costs or, in the alternative, that the costs be costs in the cause. 2. The plaintiff's substantive cause of action 3. The substantive proceeding is a claim by the plaintiff for damages for malicious prosecution and cognate torts. The plaintiff is a solicitor. As at April 2017 he practised from premises in Harrow Road Auburn and at Jacob Street Bankstown under the firm name Thomas Booler and Co. 4. On 3 April 2017 New South Wales Police applied to the Registrar of the Local Court at the Downing Centre pursuant to Pt 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) for warrants to search two suites at the Auburn address and one suite at the Bankstown address. The three applications were affirmed by Detective Senior Constable Opdam. Three warrants were issued by the Registrar and they were executed at the premises in question on 5 April 2017. Police seized a large volume of paper and electronic records of the law practice. 5. The searchable offences for which the warrants were issued and executed were suspected breaches of s 192E of the Crimes Act 1900 (NSW) (fraud, or obtaining financial benefit dishonestly by deception). The execution of the warrants related to an investigation of suspected fraudulent claims on compulsory third party insurers for damages for personal injury in circumstances of staged motor vehicle accidents. 6. The particular aspect of the investigation that concerned the law practice carried on by the plaintiff involved the alleged charging of clients for fees and disbursements that police suspected were fabricated and, in the process, disguising payments that were allegedly made to parties who had referred motor vehicle accidents claimants to the practice. 7. On 4 August 2017 the plaintiff filed in this Court in separate proceedings an amended summons claiming judicial review of the Registrar's decision to issue the search warrants. In aid of that claim the plaintiff sought access to the search warrant applications. The Commissioner of Police claimed public interest immunity in respect of the application documents and that claim was upheld on 10 October 2017 by McCallum J (as her Honour then was): Joukhodar v Commissioner of Police [2017] NSWSC 1653. 8. On 20 September 2017 the plaintiff was arrested and charged with one count under s 93T of the Crimes Act (directing the activities of a criminal group) and eleven counts under s 192E. He was committed to stand trial in the District Court but on 26 July 2019 the Director of Public Prosecutions informed that Court that the charges would not be proceeded with and they were dismissed. 9. In the present proceedings the plaintiff alleges that the search warrants were obtained and executed maliciously for improper purposes, that his arrest was wrongful and resulted in false imprisonment and that the criminal prosecution of the plaintiff was instituted and maintained with malice and in the absence of reasonable or probable cause. 10. The plaintiff's pursuit of search warrant applications 11. By letter of 14 February 2024 the plaintiff's solicitor requested the Crown Solicitor's office (CSO), representing the Defendant, to provide copies of the search warrant applications. The CSO responded on 28 March 2024 declining to provide the documents on the ground of public interest immunity and referring to the decision of McCallum J of 10 October 2017 in which the immunity claim by the Commissioner had been upheld. 12. In subsequent correspondence and by service of a notice to produce the plaintiff's solicitor pursued the request for the warrant applications. The CSO maintained its position. The CSO then sought to bring the matter to a head by applying to the Court by notice of motion filed 28 May 2024 for an order that the defendant be excused from producing the search warrant applications. That is one of the notices of motion in respect of which the plaintiff now claims a costs order in his favour. 13. On 11 June 2024 the plaintiff filed the second notice of motion for which he now claims his costs. In paras 3 and 4 of that second notice of motion the plaintiff sought orders that the defendant produce the search warrant application for inspection. Those paragraphs of the plaintiff's notice of motion were superfluous because the only reason that the defendant had ever given for not supplying the applications was its public interest immunity claim, relying on the earlier decision of this Court upholding that claim. The defendant's notice of motion of 28 May 2024 was sufficient to bring that question before the Court for determination in the context of the current malicious prosecution action. A decision by this Court on that renewed claim for immunity and the plaintiff's counter-claim for production would determine whether or not the plaintiff should have access to the documents. 14. On 16 July 2024, after "conferral with other agencies whose information is included" in the search warrant applications, the defendant produced to the plaintiff's solicitor redacted copies of the three documents. The search warrant applications were all in the same terms and uniform redactions had been made to each in the copies supplied by the CSO on 16 July 2024. The grounds of the application to the Local Court Registrar in each case were elaborated in the applications over 14 and a half closely typed pages. Those grounds explained and recounted intelligence that police had obtained concerning alleged false items on the plaintiff's fee invoices. The grounds in the search warrant applications specified (a) disguised payments that had allegedly been made to "referrers" of motor accident claimants; (b) false claims by the plaintiff for fees for interpreters in cases where interpreters were not required; (c) false claims by the plaintiff for medico-legal disbursements and counsel's fees – and many other matters. 15. In the redacted form supplied on 16 July 2024 the search warrant applications had blacked out six lines of text to which it was said that s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) applied. There were two further lines for which public interest immunity was claimed and three places in each document where there was a redaction of a monetary sum that was stated to be a commission or a suspected fraudulent disbursement claim. Bearing in mind that there are about 45 lines of text on each full page of the grounds section of the search warrant applications, the redactions to the documents as supplied on 16 July 2024 were negligible. In further copies supplied by the CSO to the plaintiff on 13 September 2024 the redactions of monetary amounts were also removed. That made no significant difference to the material in the documents that could be read and understood. 16. The plaintiff accepted the redacted form of the search warrants as received on 13 September 2024. For all practical purposes the plaintiff has had the material that he now says satisfies him since 16 July 2024 when the documents in the first redacted form were supplied. Since that date there has been no need for any further pursuit by the defendant of its notice of motion of 28 May 2024, nor for the plaintiff further to pursue paras 3 and 4 of his notice of motion filed 11 June 2024. Nevertheless the issue of the production of these documents continued to be agitated in correspondence, written submissions, listings of the notices of motion and so on until the parties reached their agreed position as advised to the Registrar on 23 October 2024. 17. The plaintiff's request for particulars 18. Paras 1 and 2 of the plaintiff's notice of motion filed 11 June 2024 concern a request for particulars. In paragraph 44 of the amended statement of claim it is alleged that at 9.45am on 20 September 2017 Detective Senior Constable Opdam arrested the plaintiff. In para 44 of the defence the defendant responded as follows: 44. In answer to paragraph 44 of the ASOC, the defendant: (a) admits that the plaintiff was arrested; (b) says that the arrest was lawfully justified pursuant to s 99 of LEPR Act Particulars (i) Detective Opdam suspected on reasonable grounds that the plaintiff had committed a fraud offence or offences in contravention of s 192E of the Crimes Act 1900 (NSW); (ii) Detective Opdam was satisfied that the arrest was reasonably necessary: (A) nature and seriousness of the offence: s 99(1)(b)(ix) of LEPRA; (B) to preserve evidence of the offence or prevent the fabrication of evidence: s 99(1)(b)(vi) of LEPRA; (c) says that Detective Opdam informed the plaintiff that he was under arrest for allegations of fraud related offences in connection with Physio Rehab Centre; (d) further says that the Detective Opdam cautioned the plaintiff in respect to his right to silence; and (e) denies the balance of the paragraph. 1. By the letter of 14 February 2024 from the plaintiff's solicitor the following further particulars were sought in relation to para 44 of the defence: 9. In relation to 44(b), please specify each of: (a) the reasonable grounds that led to Detective Opdam's suspicion. (b) why the defendant says it was reasonable in respect of each ground. (c) the precise particulars of each offence that was suspected. 10. In relation to 44(c), please specify: (a) the nature of the offence; (b) the seriousness of the offence. 11. In relation to both 44(c) and 44(d), please advise the substance of what Detective Opdam said to the plaintiff. 1. That request for particulars was responded to by letter of 28 March 2024 in which the CSO declined to provide any of the particulars sought in in the plaintiff's requests numbered 9, 10 and 11. The CSO stated in relation to each "This is a request for evidence". From the defendant's refusal to answer these paragraphs there followed an extensive exchange of correspondence and then the plaintiff's notice of motion of 11 June 2024, which sought, by paras 1 and 2, that para 44 of the defence be struck out or, in the alternative, supply of the particulars that had been sought. 2. Ultimately, after much further argumentative correspondence, on 12 September 2024 the CSO wrote to the plaintiff with the following answers to the disputed requests for particulars: 7. In answer to Question 9(a): (a) I repeat the matters pleaded in [17]-[30] of the Defence concerning the establishment of Strike Force Ravens, [31]-[42] of the Defence concerning the application for, grant of and execution of search warrants and [43]-[44] of the Defence concerning the arrest of the plaintiff; and (b) I rely on the contents of the NSWPF Fact Sheet as the matters forming the reasonable grounds that led to Detective Opdam's suspicion. 8. In answer to Question 9(b): (a) I repeat the matters pleaded in [17]-[30] of the Defence concerning the establishment of Strike Force Ravens, [31]-[42] of the Defence concerning the application for, grant of and execution of search warrants and [43]-[44] of the Defence concerning the arrest of the plaintiff; and (b) I rely on the contents of the NSWPF Fact Sheet as the matters forming the reasonable grounds that led to Detective Opdam's suspicion. 9. In answer to Question 9(c): (a) I refer to [53] of the ASOC where the plaintiff has pleaded the contents of the Court Attendance Notice (H65859021). In doing so, the plaintiff has identified the name of each alleged offence, the relevant legislative provision, the particulars of the charge including the alleged time, date, location, act or omission, alleged victim and the alleged amount. (b) I rely on the Court Attendance Notice (H65859021) provided to the Plaintiff on 28 March 2024 and again on 4 June 2024, in response to the Notice to Produce. 10. In answer to Question 10(a): (a) I rely on the contents of the NSWPF Fact Sheet (under the heading antecedents and facts). 11. In answer to Question 10(b): (a) I rely on the contents of the NSWPF Fact Sheet (under the heading antecedents and facts). 12. In answer to Question 11: (a) the substance of what was said by Detective Opdam to the plaintiff, at the time of his arrest, is recorded in subparagraph (c) and (d) of [44] of the Defence. (b) a request for anything further is an attempt to request for interrogatories or evidence. 1. Those further answers were ultimately accepted by the plaintiff. That constituted the second half of the agreed resolution of the two applications, as communicated to the Registrar on 23 October 2024. 2. Although I am not required to determine the merits of this claim for particulars in a definitive way for the purposes of resolving the costs issue, the basis upon which the plaintiff has sought his costs requires that I consider to some extent the utility of the request for particulars in paras 9, 10 and 11 of the letter of 14 February 2024. 3. As to para 9(a), the CSO's eventual response is that the defendant relies upon the police facts sheet that accompanied the Court Attendance Notices provided to the plaintiff at the time that he was charged. The police facts are said by the defendant to disclose the grounds upon which the arresting officer found reasonable and probable cause. The plaintiff disputes that he received the Court Attendance Notices on the day of his arrest. The plaintiff will contend when the case is eventually tried that he did not receive the charges upon being taken to Auburn Police Station. 4. It is very difficult to understand how matters could have unfolded as both parties agree they did unless the plaintiff was provided with the charges on 20 September 2017. The Custody Sergeant refused him bail on that day. He sought a review by an Acting Inspector and the Acting Inspector upheld the decision. It is difficult to understand how either of those officers could possibly have determined bail unless they had charge sheets in front of them. 5. The Crown has tendered as part of an exhibit to an affidavit the police facts sheet which states at the end of it that it was created on 20 September 2017, the day of the arrest, by Detective Emma Edwards. It is common ground that the plaintiff was taken before a magistrate on 21 September 2017 where he made an unsuccessful application for court bail. Again, it is difficult to understand how he could have proceeded to that point unless he had been told of the charges and provided with the charge sheets on the preceding day. 6. Whatever be the ultimate determination of that contested factual issue, there is no doubt that the plaintiff had the charge sheet and the full statement of facts by 21 September 2017. It was printed on the facts document that it had been prepared the preceding day and that the charges had also been prepared and typed the preceding day. 7. The police facts are an extensive and clear statement of the grounds upon which the plaintiff had been arrested and charged. With respect to each charge laid against him, they set out in detail the information available to police, to the effect that the individual clients named in each charge had been billed for attending the Physio Rehab Centre in connection with a claim for damages for personal injury in a motor vehicle accident in relation to which they had instructed the plaintiff. The facts in relation to each charge state that the relevant client in most cases had made a brief attendance at the premises of Physio Rehab Centre, had not received any physical treatment and was quite unaware of any basis upon which he or she could be charged $2,000 for this contact. In some cases the police facts state that a client had never attended the Physio Rehab Centre at all and yet had received an invoice from the plaintiff which included a disbursement of $2,000 for attending that centre. 8. In addition to those individual facts in relation to the specific charges laid, the police statement of facts set out over seven pages a narrative of wider information available to police, upon the basis of which, self-evidently, the charging officer held the view that the offences alleged had been committed. In particular, there were a number of paragraphs within the police facts that indicated matters from which, if substantiated, there would be inferred a consciousness of guilt on the part of the plaintiff, of a nature that would support the allegation of dishonesty which is an element of an offence contrary to s 192E. 9. The facts asserted, for example, that police were aware of the plaintiff having contacted a number of his clients, understanding that police were speaking to them in the course of investigations of the conduct of his practice. Police stated in the facts that they understood that those contacts were made to discourage the clients from speaking with police and to back up that discouragement by intimating that the clients themselves may be under criminal investigation. The statement of facts also asserted that police had become aware that the plaintiff had paid money to former clients in connection with costs complaints that they made and that he had produced false or backdated documents to them with a view to fending off their complaints of wrongful billing. 10. It was asserted that police had received information from multiple sources to the effect that the plaintiff had discussed transferring money to a Mr Sallam who had at relevant times been a principal of the business called Physio Rehab Centre. Again, in context, this was evidently a matter of information to the police that was taken by them in support of their view that he had behaved dishonestly and was endeavouring to cover his conduct. 11. It is for present purposes not to the point whether any of those pieces of information that the police referred to in their facts could be substantiated with admissible evidence. The relevant point is that from at latest 21 April 2017, from the statement of facts and the accompanying charge sheets, the plaintiff has been very well aware of what the police relied upon as justifying his arrest. Whether the document was given to him on the 20th or the 21st of April 2017, it is for all practical purposes contemporaneous with his arrest. 12. In those circumstances, a request as appears in para 9(a) of the letter of 14 February 2024 for particulars of the reasonable grounds that led to Detective Senior Constable Opdam's suspicion that the plaintiff had committed a fraud offence of a serious nature was not an important forensic step in the current civil proceeding. It is very difficult to see how the defendant could mount its defence on the basis of reasonable grounds and reasonable and probable cause for prosecution without depending upon the contemporaneous statement, made by police to the then accused person and to the Local Court, setting out the basis for their having laid the charges. In the circumstances, para 9(a) was of negligible utility to the proceedings as a request for particulars. 13. Para 9(b) seeking "why the defendant says it was reasonable in respect of each ground" is not a proper request for particulars at all. It is a request for an argument or submission as to how the material that the police did rely upon as their grounds could be characterised as reasonable in all the circumstances. That would be a matter for argument at the final hearing of the action. 14. Para 9(c), asking for precise particulars of each offence that was suspected, is in the circumstances an entirely superfluous request. The precise particulars of each offence are set out in the Court Attendance Notices. They are fully elaborated in the police statement of facts. The plaintiff has known about them in full detail since at latest 21 April 2017. 15. Para 10 of the request for particulars refers to para 44(c) of the defence. However, para 10 seems more apposite to item (ii) of para (b). Para (ii) of those particulars states that Detective Senior Constable Opdam was satisfied that the arrest was reasonably necessary having regard to the "nature and seriousness" of the offences. Item 10 of the particulars seeks specification of the nature of the offences and the seriousness of them. The nature of the offence was given in relation to every charge: it was an offence against s 192E or, in the case of one of the charges, s 93T. The seriousness of each charge is not a matter for particulars but for submission, evaluation and assessment. This, again, was an unnecessary request for particulars lacking any utility in the case. 16. As to para 11 of the request for particulars, it can be seen from para 44 of the defence quoted above that items (c) and (d) stated in very clear terms what the defendant alleges was said by Detective Senior Constable Opdam to the plaintiff. The first part it in item (c) was "that he was under arrest for allegations of fraud related offences in connection with Physio Rehab Centre". Para (d) of s 44 says that the Detective further "cautioned the plaintiff in respect of his right to silence". In those circumstances, to issue a request for particulars asking the defendant to advise "the substance of what Detective Senior Constable Opdam said to the plaintiff" is, again, of no utility in the proceeding. The substance of what he said is set out in the defence paragraph. 17. Determination 18. Without making any final determination about how either of these notices of motion might have been resolved if fully litigated to the end, it is sufficient to say that there is not demonstrated any significant fault on the part of the defendant in delaying its provision of copies of the search warrant applications until 16 July 2024. That was not a great delay from when they were first requested. It was reasonable for the defendant to consult other agencies and parties who were concerned in the provision of information that went into the search warrant applications, before relinquishing the documents and coming to the conclusion that there now applied a different situation in the present litigation from that which pertained when McCallum J originally upheld the public interest immunity claim on 10 October 2017. 19. With respect to paras 1 and 2 of the plaintiff's notice of motion, I do not consider that the defendant acted unreasonably in initially dismissing the plaintiff's request for particulars as set out in paras 9, 10 and 11 of the plaintiff's 14 February 2024 request. Those were not useful forensic steps and the ultimate provision of explicit answers to them reveals that they simply provided information that the plaintiff has known all along. 20. In these circumstances, I do not consider that there is fault on the side of the defendant that would warrant ordering costs against it. There has been some measure of waste by delay in responding about the search warrant applications. On the other hand, there has been some measure of waste by the plaintiff in pursuing particulars that were not useful. The appropriate order is simply to require that the parties bear their own costs because their respective costs can be set off against each other. I do not consider it appropriate to order that the costs of these motions be costs in the cause because that would mean that whoever is ultimately successful would have his or its costs inflated by the expense of what I regard as unnecessary and superfluous interlocutory skirmishing. 21. Accordingly, the orders of the Court are as follows: 1. The notices of motion filed by the defendant on 28 May 2024 and by the plaintiff on 11 June 2024 are dismissed. 2. Each party is to bear his or its own costs of the respective notices of motion including the costs of arguing the costs orders for those applications today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2024