Commissioner of Police for New South Wales v Joukhador [2025] NSWSC 160

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police for New South Wales v Joukhador [2025] NSWSC 160 Hearing dates: 4 March 2025 Date of orders: 4 March 2025 Decision date: 04 March 2025 Jurisdiction: Common Law Before: Weinstein J Decision: See [24] Catchwords: CIVIL PROCEDURE – interlocutory applications – ex parte – public interest immunity – where proposed defendant allegedly in possession of confidential material and material subject to public interest immunity – whether grant of interlocutory relief necessary to protect public interest from harm and prevent further dissemination of material – interlocutory relief granted Cases Cited: Joukhador v Commissioner of Police [2017] NSWSC 1653 Joukhador v Commissioner of Police [2018] NSWSC 872 Joukhador v State of NSW [2024] NSWSC 1526 Category: Procedural rulings Parties: Commissioner of Police for New South Wales (Plaintiff) Marcel Joukhador (Defendant) Representation: Counsel: P Singleton (Plaintiff)

Solicitors: Crown Solicitor's Office (Plaintiff) File Number(s): 2025/00085483 Publication restriction: Nil

JUDGMENT ex tempore – revised 1. In this matter the proposed plaintiff, the Commissioner of Police for New South Wales, proceeds ex parte, having given the proposed defendant notice of this application about four hours ago at about 11am. The proposed defendant is aware of this application and apparently asks that it be adjourned for one week. The Commissioner moves on a notice of motion and reads the affidavit of Erica Berki affirmed on 4 March 2025. In short, the Commissioner wishes to commence proceedings by way of summons seeking certain orders against the defendant for reasons which will become apparent. 2. As will be disclosed in the reasons that follow, in my opinion it is preferable that orders be made today on an interim basis and that the substantive matter be stood over for one week before the duty judge. 3. The proposed defendant, Marcel Joukhador, has apparently obtained material from the Court's registry which the Court has previously upheld as subject to public interest immunity (see Joukhador v Commissioner of Police [2017] NSWSC 1653 per McCallum J). He has also apparently obtained the confidential affidavit evidence that was adduced in support of the public interest immunity claim to which he was not given access, and which McCallum J referred to at [17]-[24] of her judgment. 4. The proposed plaintiff seeks interlocutory relief to protect the public interest from further harm and to secure the information in question from being further disseminated pending determination of final relief. 5. The matter comes before the Court in the context of other proceedings between Mr Joukhador and the Commissioner and her predecessor. Relevantly, in 2017, in proceedings before McCallum J, Mr Joukhador challenged the validity of three search warrants pursuant to which documents had been seized from his premises and he sought to advance claims of legal professional privilege. Henry Davis York, who then later merged with Norton Rose Fulbright Australia (NRFA), acted for the then Commissioner. 6. In the course of those administrative law proceedings, Mr Joukhador sought production of the material placed before the judicial officer who had granted the warrants (the application documents). The then Commissioner claimed public interest immunity with respect to the application documents in unredacted form, but ultimately provided redacted versions. 7. When the public interest immunity claim came before McCallum J, the claim for public interest immunity was maintained on the basis that disclosure of confidential information within the application documents could prejudice ongoing investigations. In support of that claim, the Commissioner relied on the confidential affidavits to which I have referred. Later, the Court determined the administrative law proceedings as a whole, mostly adverse to Mr Joukhador (see Joukhador v Commissioner of Police [2018] NSWSC 872). 8. On 20 September 2017, Mr Joukhador was arrested and charged with 12 criminal offences. This Court's file for proceedings 2017/00346596 relates to an aspect of the criminal proceedings. Those charges were later dropped. 9. In 2023, Mr Joukhador commenced proceedings for damages for malicious prosecution and other torts (the tort proceedings). The Court's 2023 file relates to those tort proceedings. In the tort proceedings, Mr Joukhador is represented by Turner Freeman Lawyers and the State is represented by the Crown Solicitor. 10. On 14 February 2024, Mr Joukhador asked the Crown Solicitor to give him copies of the search warrant applications. On 28 March 2024 the Crown Solicitor refused, citing McCallum J's judgment. 11. On or before 8 May 2024, Mr Joukhador applied to the Court's registry for access to the Court's file in the administrative law proceedings. He did not notify the Commissioner's representatives of his application. Access was granted and an agent of Mr Joukhador, Mr Sidoti, exercised access, apparently on 9 May and 18 and 24 June 2024. The agent made a copy of the file, or some of it, and delivered it to Mr Joukhador. 12. On 28 May and 11 June 2024, the State of New South Wales and Mr Joukhador each filed motions in the tort proceedings to obtain the Court's ruling on whether or not Mr Joukhador could have access to the search warrant applications. On or about 16 July 2024, the parties resolved their dispute by agreement and the Crown Solicitor produced redacted copies of the search warrant applications. The parties continued to correspond about the matter and on 13 September 2024, Mr Joukhador was given slightly less redacted versions of the documents. The Court did not need to rule on the motions that had been filed, although it did deal with the subsequent costs dispute: Joukhador v State of NSW [2024] NSWSC 1526. 13. On Thursday 19 December 2024, which I observe was the day before the end of law term, Mr Joukhador, on his own firm's letterhead, that firm being Harrow Legal, wrote to NRFA (but not the Crown Solicitor) citing the court file numbers for the administrative law proceedings and the criminal proceedings and advising that he had obtained possession of a copy of "the Supreme Court file". He referred to the fact that the Commissioner had filed an application for public interest immunity, but not to the fact that the claim had been upheld. 14. Notwithstanding that the Court had upheld the public interest immunity claim in 2017, and notwithstanding that in the period from March to September 2024 the Crown Solicitor had maintained the claim, Mr Joukhador said in his letter of 19 December 2024: "If we don't hear from you within 28 days from the date hereof, we will presume that you are not pressing any claim for public interest immunity in relation to any document that's located on the court file and will inspect and file and documents accordingly." 1. That letter on Harrow Legal letterhead was sent to NRFA by email only. 2. Notwithstanding the timing of the letter and the fact that it had been sent to the wrong solicitors, NRFA replied to Mr Joukhador and asked him to refrain from inspecting the documents until such time as he received further correspondence from the Crown Solicitor's Office. That position was reiterated on 12 February 2025. 3. On 17 February 2025, a solicitor employed in the Crown Solicitor's Office attended the Court's registry and inspected the court file with respect to the administrative law proceedings. She found that it included unredacted copies of the search warrant applications and the confidential affidavits that had been read before McCallum J. 4. The Crown Solicitor's Office has since engaged in correspondence with Mr Joukhador in an effort to reach some accommodation. He has surrendered a USB device containing a copy of the relevant court file, but has given no assurance regarding other copies and no protections were offered for the confidential information that was contained in the file. 5. Correspondence has identified the following persons who have had the opportunity to access the confidential material, but who have not done so. The first is Mr Terence Goldberg, solicitor of Turner Freeman, and his secretary, Ms Robinson, who have both had access to an electronic link to a copy of the court file, but have not used it. The second is the agent who obtained the copy of the court file for Mr Joukhador. He had the opportunity to inspect it, but did not. It may be that Mr Joukhador has supplied a copy of the court file or documents from that file to someone else. Mr Joukhador has to date refused to provide that information. 6. The Commissioner seeks the temporary return of all copies of the court file with respect to the administrative law proceedings in the possession of Mr Joukhador, as a result of the access to that file in May and June 2024. The purpose is to permit the Crown Solicitor to examine those copies and remove any material covered by the public interest immunity claim. After that is done, if Mr Joukhador wishes, it is proposed that the material, subject to a public interest immunity claim, can be preserved pending any application to this Court. The purpose of this relief would be to preserve the status quo and the protection of immune documents, pending any ruling that may be required. 7. The Commissioner also seeks an interlocutory order restraining Mr Joukhador from divulging any information derived from parts of the documentation that was redacted when provided to him on 13 September 2024 or from the confidential affidavits. The purpose of this relief is said to prevent further harm to the public interest pending a final order of the Court if one is required. 8. The Commissioner also seeks an order requiring Mr Joukhador to provide a list of those people who have a copy of the material that his agent obtained from the registry last May and June, other than those already identified. The purpose of this order is to identify anyone from whom an appropriate undertaking should be sought, or, if necessary, against whom an appropriate order should be sought to prevent further disclosure that would be harmful to the public interest. 9. That public interest immunity is a doctrine of substantive law is a trite comment. The Court rules often on the competing aspects of the public interests of disclosure and non-disclosure. I observe also that it is a practice of this Court to receive confidential affidavits in support of a public interest immunity claim. It is not clear to me how those affidavits might have appeared on a court file without the usual protection of being sealed in an envelope marked "confidential, not to be opened other than by a judge". 10. In all the circumstances, and bearing in mind that the matter will be before the Court again within a week with an estimate of one hour, I am prepared to grant the relief sought by the plaintiff. I have been provided with a copy of a document entitled "Short Minutes of Order" which replicates the orders sought in the notice of motion before me. I note paragraphs (A) to (I) of that document and make the following orders:- 1. Leave is granted to the plaintiff to file the summons in Court. 2. Leave is granted to the plaintiff to file this notice of motion in Court. 3. The notice of motion is returnable and shall be heard instanter. 4. The defendant shall, within 24 hours of being informed of these orders, secure (until further order of the Court) any copies of the Supreme Court's file for proceedings 2017/151403, or a substantial portion of that file (the Sidoti material) (whether electronic, on paper or otherwise) that is in his possession or control so that no person is able to inspect its contents. 5. Without limiting the generality of the previous order, the defendant shall, within 24 hours of being informed of these orders, direct Turner Freeman Lawyers not to inspect or otherwise exercise access to any copy of the Sidoti material. 6. Should the defendant be aware of any person (other than himself, Mr Sidoti, Mr Goldberg, Ms Robinson, police, legal representatives of the plaintiff and the Court's staff) who has or has had possession of, or access to, the Sidoti material or any copy thereof, he shall within 24 hours notify the Crown Solicitor's Office of the person's identity, the person's known contact details and any known circumstances of how that person came to be in possession of, or to have access to the material. 7. Should the defendant become aware of any person (other than himself, Mr Sidoti, Mr Goldberg, Ms Robinson, police, the legal representatives of the plaintiff and the Court's staff) who has or has had possession of, or access to, the Sidoti material or any copy thereof, he shall within 24 hours notify the Crown Solicitor's Office of the person's identity, the person's known contact details and any known circumstances of how that person came to be in possession of, or to have access to, the material. 8. Should the defendant be in possession or control of the Sidoti material or any copy thereof, he shall not inspect or otherwise access the material contained in that copy and will either: 1. within 72 hours of being notified of these orders, or such later time as agreed with the legal representatives of the plaintiff: 1. deliver it, or have it delivered, to the Crown Solicitor's Office (Level 4, 60-70 Elizabeth Street, Sydney); and 2. via email notify the Crown Solicitor of when he came into such possession or control and from whom; or 1. within 24 hours of being notified of these orders, or such later time as agreed with the legal representatives of the plaintiff: 1. irrevocably destroy the copy; and 2. via email notify the Crown Solicitor of when he came into such possession or control and from whom and of the said destruction. 1. Should the defendant come into possession or control of the Sidoti material or any copy thereof, he shall not inspect or otherwise access the material contained in that copy and will either: 1. within 72 hours, or such later time as agreed with the legal representatives of the plaintiff: 1. deliver it, or have it delivered, to the Crown Solicitor's Office (Level 4, 60-70 Elizabeth Street, Sydney); and 2. via email notify the Crown Solicitor of when he came into such possession or control and from whom; or 1. within 24 hours or such later time as agreed with the legal representatives of the plaintiff: 1. irrevocably destroy the copy; and 2. via email notify the Crown Solicitor of when he came into such possession or control and from whom and of the said destruction. 1. Until further order, the defendant shall not disclose any information in or derived from the following material obtained by him or any of his agents or servants from the Supreme Court's file numbered 2017/151403: 1. any confidential affidavit; and 2. any unredacted version of the search warrant applications as provided to him on 13 September 2024 (except insofar as the information is revealed in the redacted version of that documentation provided on 13 September 2024). 1. I refer the matter to the duty judge at 10am on 11 March 2025.