NAZMUL HYDER v COMMONWEALTH OF AUSTRALIA [2011] NSWDC 80

District Court New South Wales

Medium Neutral Citation: NAZMUL HYDER v COMMONWEALTH OF AUSTRALIA [2011] NSWDC 80 Hearing dates: 2 August 2011 Decision date: 03 August 2011 Before: MURRELL SC DCJ Decision: Verdict for the defendant Catchwords: TORT- false imprisonment arrest without warrant belief on reasonable grounds victim of identity theft Legislation Cited: s 3W Crimes Act 1914 s 400.6(1) Criminal Code Act s 64B(1) Australian Federal Police Act 1979 Cases Cited: NSW v Coleman [2000] NSWCA 183 George v Rockett (1990) 170 CLR 104 Ruddock v Taylor [2005] HCA 48 Hussein v Chong Fook Kam [1970] AC 942 Nye v State of NSW and Ors [2003] NSWSC 1212 O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129 Castorina v Chief Constable of Surrey NLJ 24 June 1988 R v Rondo [2001] NSWCCA 540 Zreika v State of NSW [2011] NSWDC 67 Category: Principal judgment Parties: Nazmul Hyder Commonwealth of Australia Representation: J Raine D J Brogan Law Partners Compensation Lawyers Australian Government Solicitor File Number(s): 2010/333625

Background 1 "Operation Starfish" was an Australian Taxation Office investigation into widespread fraud. Fraudulent tax returns had resulted in the payment of substantial tax rebates into fraudulent bank accounts. Six fraudulent accounts were in the name Nazmul Haider. 2 The plaintiff, Nazmul Hyder is a Bangladesh citizen who resides in Australia. On 28 October 2009, Mr Anderson, a senior investigator with the ATO, swore affidavits in support of a warrant to search the plaintiff and his premises, and the warrants were issued. The Australian Federal Police were briefed with the affidavits and other material, and were asked to execute the warrants on behalf of the ATO. On 29 October 2009, Federal agents attended the plaintiff's premises and executed the warrants. Federal Agent Gaggan (the officer) arrested the plaintiff. The plaintiff was charged with dealing with the proceeds of crime contrary to section 400.6 (1) of the Criminal Code Act 1995 and released on bail. 3 In January 2010, the charge was withdrawn. In relation to the establishmentof the six fraudulent bank accounts, the plaintiff had been the victim of "identity theft". The plaintiff sued the Commonwealth of Australia, asserting that it was vicariously liable for his false imprisonment by the officer.