Supreme Court New South Wales Medium Neutral Citation: Joukhador v Commissioner of Police [2017] NSWSC 1653 Hearing dates: 10 October 2017 Decision date: 10 October 2017 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff's application to vacate hearing date refused Catchwords: CIVIL PROCEDURE – access to documents – claim for public interest immunity – ongoing investigation CIVIL PROCEDURE – application to vacate hearing date – importance of using allocated hearing dates where practicable Legislation Cited: Crimes Act 1900 (NSW), ss 93T, 192E(1)(b) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Joukhador as Principal Solicitor of Thomas Booler Lawyers v New South Wales Commissioner of Police [2017] NSWSC 1287 Category: Procedural and other rulings Parties: Marcel Joukhador (plaintiff) Commissioner of Police, NSW Police Force (first defendant) Daniel Opdam (second defendant) Stephen Lister (third defendant) Representation: Counsel: P Batley (plaintiff) P Singleton (first and second defendants) Solicitors: Hearn Legal (plaintiff) Henry Davis York (defendants) File Number(s): 2017/151403 Publication restriction: This judgment will not be published on Caselaw pending conclusion of the criminal proceedings against the plaintiff. Judgment 1. HER HONOUR: Before the Court are two notices of motion. The plaintiff is a solicitor and was formerly the principal of Thomas Booler Lawyers. On 5 April 2017, police executed three search warrants at various premises of that firm and seized a large number of documents including documents alleged to be those of various clients of the firm. By agreement, the documents were deposited with the registrar of the Local Court pending the determination of claims for client legal privilege foreshadowed by the plaintiff to be brought on behalf of those clients. 2. These proceedings were initially commenced by the plaintiff (by summons filed 19 May 2017) to agitate those privilege claims. On 4 August 2017, an amended summons was filed seeking judicial review of the issue of the warrants. That relief was sought by the plaintiff in his own right. The documents seized pursuant to the warrants are now being held in the Local Court pending the determination of both issues. 3. In aid of the latter, the plaintiff sought production of the material placed before the judicial officer who granted the warrants ("the application documents"). That judicial officer is the third defendant to the proceedings. The first and second defendants are, respectively, the Commissioner of Police and the detective in charge of the relevant investigation. Those two defendants foreshadowed making a claim for public interest immunity in respect of the application documents. 4. The application for production of the application documents was determined by Beech-Jones J on 19 September 2017: see Joukhador as Principal Solicitor of Thomas Booler Lawyers v NSW Commissioner of Police [2017] NSWSC 1287. His Honour concluded that the plaintiff was entitled to have the documents produced to this Court by the Local Court and made directions with a view to granting first access to the defendants and further providing for a regime which would see the public interest immunity claim determined by the Court during the week commencing 25 September 2017. 5. The object of those directions was to secure the production of the documents and the determination of the public interest immunity claim in a timely manner so as to allow the matter to proceed to a hearing which had been fixed to commence on 16 October 2017 with an estimate of two days. Unfortunately, perhaps owing to administrative error, the documents were not in fact produced to any party until last Friday, 6 October 2017. 6. In the meantime, on 20 September 2017, the plaintiff was arrested and charged with 12 criminal offences being an offence of participating in a criminal group contrary to section 93T of the Crimes Act 1900 (NSW) and 11 offences of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Act. 7. The charges are based on allegations that the plaintiff has participated in a scheme involving systematic defrauding of the compulsory third party insurance scheme. The charges are supported by a lengthy, detailed statement of alleged facts, a copy of which has openly been provided to the plaintiff. 8. In light of the late production of the application documents by the Local Court and the closeness of the hearing date, the first application before the Court today is an application by the plaintiff brought by notice of motion filed 5 October 2017 to have the hearing vacated. 9. To the extent that the hearing of the issues raised by the amended summons relates to claims of client legal privilege reposing in clients of the practice (which the plaintiff sought to prosecute in his capacity as the solicitor acting for those clients), the application to vacate the hearing is not opposed by the defendants. Indeed, the evidence reveals that there is no alternative to that course. 10. In fact, it may be doubted whether the plaintiff can now prosecute those claims on behalf of those clients. Upon his arrest, the applicant was initially refused bail. A few days later, bail was granted on conditions which prohibit him from having any contact whatsoever with any current or former employee of the firm Thomas Booler Lawyers (excluding two named persons) other than through his legal representatives. The conditions of bail also prohibit the plaintiff from attending the premises of the law firm and prohibit him from contacting any person on a long list of persons who must now be regarded as his former clients. It was on behalf of those persons that the plaintiff sought to prosecute the legal privilege claims. 11. Separately, a week after his arrest, the plaintiff received notice from the Council of the Law Society of a resolution to suspend his practising certificate and a further resolution approving the appointment of an alternative solicitor to act as the principal of Thomas Booler Lawyers. 12. Plainly, the plaintiff's prosecution of the legal privilege claims in those circumstances cannot proceed next week and probably cannot proceed at all. 13. The defendants submit, however, that the other aspect of the application (the application for judicial review of the three search warrants) can and should proceed next week. That part of the application seeks prerogative relief to quash the warrants and have them declared invalid. Two grounds are stated for that aspect of the relief sought, as follows: 1. the search warrants do not state, with sufficient particularity, the searchable offence in relation to the warrants that were issued; 2. a description of the things which the search warrant authorised searching for, seizure of and removal from the premises is unjustifiably wide. 1. As noted in the earlier judgment of Beech-Jones J in these proceedings, the phrase "unjustifiably wide" is drawn from the decision of the High Court in George v Rockett (1990) 170 CLR 104; [1990] HCA 26. Justice Beech-Jones remarked at [39] of his Honour's judgment that a ground formulated in those terms does not properly identify a basis for judicial review although, as his Honour said, that does not represent an impediment to the success of the present application. His Honour remarked that it will be necessary for the plaintiff to "translate that assertion into grounds that reflect the more established grounds" such as the taking into account of an irrelevant consideration, a failure to take into account a relevant consideration or a contention that the third defendant could not have been satisfied in the terms of the relevant statutory test. Separately, his Honour noted that George v Rockett was decided under a different statutory regime from that which governs the issue of the search warrants now, being the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). 2. The principal basis on which the defendants oppose the vacation of the hearing date in respect of the application for judicial review is that the numerous documents seized when the three warrants were executed are presently being held in the Local Court and are unable to be accessed by either party. That is delaying both the ongoing investigation of these matters and the preparation of a brief in respect of the charges that have been laid against the plaintiff to date. 3. Plainly, that is a strong imperative for the prompt resolution of the question of the validity of the warrants. However, before determining whether the Court can fairly force the plaintiff on, it is necessary first to consider the public interest immunity claim. To that end, when the plaintiff's notice of motion to vacate the hearing date came before me as duty judge on Monday, the parties proposed that I should first determine the foreshadowed public interest immunity claim. The second notice of motion before the Court is the first and second defendants' notice of motion filed in Court today seeking determination of that claim. 4. The defendants' motion seeks an order "that there be no access granted" to the documents that have been produced to this Court pursuant to the orders of Beech-Jones J. As commonly occurs in such cases, the application is supported by both open affidavit material and confidential affidavit material. 5. The principal basis for the application is that, although the plaintiff has now been charged with a series of offences, the investigation into the alleged systematic defrauding of the compulsory third party insurance scheme described in the lengthy statement of facts provided in support of those charges is ongoing. 6. The defendants have overnight prepared and this morning produced to the plaintiff redacted versions of the warrant applications placed before the third defendant when the warrants were obtained. That material openly discloses to the plaintiff those aspects of the application as to which the defendants maintain no claim for public interest immunity. The redacted material is addressed in the confidential affidavits. 7. Accordingly, as they evolved, the applications raised two issues: first, whether the claim for public interest immunity can be maintained in respect of the redacted material; and secondly, if so and in any event, whether the hearing can fairly proceed next Monday. 8. As explained above, the principal basis for maintaining the public interest immunity claim is contained in material to which Mr Batley, who appears for the plaintiff, has had no access. He was accordingly constrained to oppose the claim, in effect, with one arm tied behind his back. 9. The claim for public interest immunity is maintained on the basis that there is an ongoing police investigation. As revealed in a short summary provided to the Court on behalf of the first and second defendants, the relevant principles appear in a number of authorities but may conveniently be found in the decision of Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 in which Smart J remarked that the immunity could apply when "what is sought is access to information which could be used to thwart ongoing police investigations". 10. Mr Batley did not take issue with the summary of principles provided by the defendants but noted that those authorities establish a need for the claim to be sustained by some factual basis for the contention that the information to which access is sought might be used in the manner apprehended. In circumstances where he has not had access to the confidential affidavit, Mr Batley was not in a position to expand upon that submission. 11. I accept that the principle is as submitted by Mr Batley. I have considered the issues addressed in the confidential affidavit sworn and filed today. I am persuaded by that material that a proper basis is established for the claim in accordance with that principle. Regrettably, the fact that the material is confidential, for an obvious reason, means that it is necessary to be circumspect in explaining my reasons for coming to that conclusion. Indeed, little more can be said on that issue than I have already said. 12. I would, however, note two further matters. One is that the task of redacting the application documents has, by force of the circumstances imposed upon both parties by the administrative error to which I have referred, been undertaken in some haste. It may be that, with a more leisurely review of those documents, the first and second defendants might see fit to release some additional material. 13. Secondly the redactions, being made on the basis of an ongoing investigation, plainly have a temporal aspect to them. I would expect the defendants, as parties falling within the class of persons required to behave as model litigants, to keep the question of those redactions under review and to produce further information as time and the status of the investigation permits. 14. At this stage, however, I am satisfied that the claim reflected in the redactions should be upheld. 15. The second issue is then to consider whether, in the circumstances, the hearing can fairly proceed. I am persuaded that it can. A strong consideration is, as already noted, the fact that the challenge to the validity of the warrants is presently detaining the process of the ongoing investigation and the preparation of a brief for the existing charges against the plaintiff. 16. Secondly, hearing dates in this Court are to be regarded as valuable in the sense that they are not infinitely available to parties and, once allocated, should be used, if that is reasonably practicable and can be done with fairness. Plainly, from time to time, circumstances will arise where a hearing simply cannot proceed. But if the date were vacated in the present case, the matter would, in all likelihood, suffer considerable delay before a further date can be allocated. 17. Thirdly, as noted in the principles in George v Rockett to which I have referred, the question of the validity of the warrant will turn primarily, albeit not exclusively, on the terms of the LEPRA legislation and the terms of the warrants themselves. I accept that the content of the information placed before the third defendant will inform that question, but I am not persuaded that there is anything in the material I have seen, which I accept Mr Batley has not, to suggest any specific likely prejudice in hearing the matter on the strength of the information presently available to the plaintiff. 18. Fourthly, it must be observed that there is now considerably more information available to the plaintiff than there was when the r 33 application came before Beech-Jones J, by reason of the fact that the plaintiff has since been arrested and provided with a copy of the lengthy, detailed statement of alleged facts. 19. Further, I accept, as submitted by Mr Singleton on behalf of the first and second defendants, that logically any ground that the decision-maker failed to have regard to a relevant consideration is likely to be revealed on the face of the warrants and the material to which the plaintiff has access. Conversely, any irrelevant material to which the decision-maker erroneously had regard would logically be found within the redacted material, and I accept Mr Singleton's submission that there is no indication that that has been the approach to the redaction of the material provided to the plaintiff. 20. For those reasons, I am satisfied that the hearing can fairly proceed next week on the strength of the redacted material which has been made available to the plaintiff, whilst acknowledging this will visit some considerable hardship on the professionals at both ends of the bar table. ********** 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: 25 February 2020