Fawaz v Commissioner of Police, New South Wales Police Force

Applicant's submissions

1. The applicant submitted that before an order to produce is made in answer to a subpoena, the issuing party must: 1. Identify a legitimate forensic purpose for which access is sought, and 2. Establish that it is "on the cards" that the documents will materially assist his case (Attorney-General, New South Wales v Chidgey [2008] NSWCCA 65, [64], and R v Saleam [1999] NSWCCA 86, [11].
2. In order to establish a legitimate forensic purpose, the issuing party must show that it is likely that the documents will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that it is likely that the documents sought will so assist. A suspicion that the summonsed documents will or may assist is not enough. A bare unsupported assertion that something may be found that is helpful to the party seeking access will not suffice to establish the existence of a legitimate purpose.
3. In Sharpe v Grobbel [2017] NSWSC 1065, [35], Brereton J summarized the principle as being that "there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they 'appear relevant in the sense they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case".
4. The onus is on the respondent to demonstrate a legitimate forensic purpose: QQ v Commissioner of Police [2011] NSWADT 54, [9].
5. In this case the summons sought production of documents "with respect to" Real Property Act transfers between the applicant and two third parties for a property at Manildra which the applicant purchased in 2019 and sold in late 2021 so that he could purchase a house at Glenfield. The respondent was seeking to engage in a "fishing expedition", an attempt to discover facts or matters that might enable the respondent to advance a case of which there was at present no knowledge.
6. The respondent did not identify the issues in dispute on which the documents might shed light and speculates about the reasons behind the amounts paid by each party. The respondent was seeking to impugn the conduct and character of third parties who are not parties to the current proceedings and have no notice of the assertions made. Whether the transactions lacked foresight or not, that was not a matter that arose for determination in these proceedings. The respondent's reference to the applicant's family connections and known gun and other violence of his family members was unacceptably vague. Any relevant nexus between the documents sought and those matters had not been drawn.

Respondent's submissions

1. The respondent stated the Commissioner's stance in an email dated 23 August 2022 as follows: The respondent's position is that there is evidence before the Tribunal that the applicant entered into a transfer of property with a Mireille Smith at an immediate loss to him of $70,000 in December 2021. The evidence is that he first signed a transfer from NM [Nicole Marie] Pearce for $420,000 and then signed a transfer to Mireille Smith for $350,000. Abbas Jacobs Lawyers Pty Ltd were the applicant's solicitors on the transactions. The transactions, on their face, are improvident in that they occasioned an immediate loss to the applicant. These two transactions, taken together, may indicate that the applicant was indebted to Mireille Smith or an associate of Mireille Smith, and the transfer of property at an immediate loss to him of $70,000 was in part discharge of such a debt. Given the applicant's family connections and the known gun and other violence of the applicant's family members and the broader context of that violence, it is on the cards that documents relevant to this property transaction and contemporaneous with it may materially assist the respondent's case (Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145).
2. At the hearing the respondent reiterated those points, stressing that the evidence before the tribunal showed excessive transfers resulting in loss. That was not a subjective assessment, but on the face of the record there was clear evidence of the series of transactions leading to a loss for which there was no apparent reason. As Saleam pointed out, the production of documents could have a legitimate forensic purpose if the documents were relevant to cross-examination. There was no suggestion that the respondent intended to impugn Ms Pearce or Ms Smith.
3. The loss of $70,000 raised public interest issues because the applicant was the subject of a serious allegation. In police event report E 72136176 (exhibit R1, pp 62 - 65) a man named Zahir Orfali alleged that on 4 August 2019 he attended the applicant's house to discuss a dispute over a debt: "The Victim states that when he arrived the POI was holding what he would describe as a 9 mm Glock pistol or similar and threatened him that he needed to remove his name [from the registration of a truck which had incurred penalties in the applicant's name] and pay the [toll] fines or he would go to his family's home to sort it out".
4. It was also relevant that the applicant's brother, Mr Abdul Fawaz, had been arrested and charged with the attempted murder of one Mohammed Saab, as well as various other firearms offences, including possession of an unauthorized pistol.
5. The summons was seeking documents relating to the transfers, not of the property itself. It was confined and targeted to documents that could explain the $70,000 loss. If firearms licence holders had associations with criminal elements, the public interest could be prejudiced. It was not simply a matter of isolated facts, but could involve broader perspectives that might explain the transactions. The applicant's reported threat to a debtor, Mr Orfali, might suggest such associations.
6. The fact that the addressee of the summons acted as solicitor in both transactions could help to explain the transfers. The respondent's description of them as improvident was not about the intent of the parties, but whether the applicant's sale and purchase quickly and at a loss could be explained.

Consideration

1. The tribunal has an inherent power to make an order setting aside a summons to produce documents: DYH v Public Guardian [2019] NSWCATAD 211, [17]; Knight v Department of Justice [2011] VCAT 1708, [3].
2. The general principles governing the issuance of summonses or subpoenas are not in dispute. The party requesting the issuance of the summons must identify a legitimate forensic purpose for which access is sought and establish that it is "on the cards" that the documents will materially assist his case (Chidgey, [64], Saleam, [11]).
3. Establishing a legitimate forensic purpose requires showing that it is likely that the documents will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that it is likely that the documents sought will so assist (ICAP v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, [9], [14]. A suspicion that the summonsed documents will or may assist is not sufficient. The issuing party must be able to indicate that the document is relevant, in that it may assist the issuer's case: Carrol v Attorney-General for New South Wales (1993) 70 A Cr R 162, 182. It was not disputed that relevance to cross-examination may constitute a legitimate forensic purpose.
4. It is impermissible for a party to use a summons for "fishing", which is understood as being "where a party attempts by way of subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": B Cairns, Australian Civil Procedure, Thomson Reuters 10th edn., 585. The documents need not be shown to definitely advance the case of the issuing party, but whether they have apparent, as distinct from actual, relevance to the case: CPJ v University of Newcastle [2017] NSWCATAD 35, [11].
5. The onus is on the issuing party to show the requisite purpose: "It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identification is made": QQ, [9].
6. The respondent contends that the summons serves a legitimate forensic purpose because of certain land transactions entered into by the applicant in December 2021. It is not disputed that the applicant entered into a transfer of a property at Manildra from Ms Pearce to himself for $420,000 and then signed a transfer of that property to Ms Smith for $350,000. Both transfers were executed on 8 December 2021.The respondent submits that the immediate loss of $70,000 showed that the transactions on their face were improvident and that taken together, they might indicate that the applicant was indebted to Ms Smith or to an associate of Ms Smith and that the transfer of the property at an immediate loss to him of $70,000 was in part discharge of such a debt. Given the applicant's "family connections" and the "known gun and other violence of the applicant's family members and the broader context of that violence", it was "on the cards" that the documents might materially assist the respondent's case.
7. In cross-examination the applicant offered an explanation for the immediate loss he sustained on the transfer of the Manildra property. He said that he had been paying Ms Pearce $1800 a month to enable her to pay her own mortgage, which stood at $192 000. Ms Pearce is the wife of a friend of his. While his description of the arrangement was not altogether clear, it would appear that he had purchased the property from Ms Pearce in 2019 on a terms contract. Some time in 2021, the applicant decided to purchase a house at Glenfield which he intended to be the matrimonial home. It was to be sold at auction and he needed to obtain a bank loan to purchase it, for which the bank required a 20 percent deposit. He was unable to raise that amount but was anxious not to lose the opportunity of bidding for the property at auction.
8. He therefore entered into an arrangement with Ms Pearce and Ms Smith (who was also the wife of a friend of his) whereby he was to sell the property to Ms Smith and use part of the proceeds to repay his debt to Ms Pearce, obtain a transfer of the title (so that he could transfer it to Ms Smith) and apply the balance of the proceeds to the required deposit. He took a $70,000 loss because he was anxious not to lose the opportunity to bid on the Glenfield property and therefore needed to raise funds quickly in order to pay the deposit.
9. The applicant's explanation was not challenged or contradicted and the transactions on their face, though somewhat unorthodox, do not appear to be inherently of a criminal nature and have little discernible connexion with public safety or fitness in the public interest. The respondent submitted, however, that given the applicant's family connections and the "known gun and other violence of the applicant's family members and the broader context of that violence", the documents could assist the Commissioner's case on the public interest.
10. The reference to "known gun and other violence" referred (among other matters) to police event report E72136176 (exhibit R1, p 63) in which a complainant, Mr Orfali, told police that in the course of a dispute with the applicant over a debt arising from Mr Orfali's non-payment of over $2500 in toll fines incurred while using a truck belonging to the applicant's company, the applicant had threatened him with a 9 mm Glock or similar firearm and had threatened him that if the fines were not paid he would go to Mr Orfali's home and "sort it out".
11. The police report noted that "The Victim provided several versions and changed his story several times" (ibid.) and that they had "requested that he provide a statement so the matter could be investigated", but he refused to do so. On further questioning Mr Orfali mentioned that he owed the applicant a further $2800 that he had borrowed from him, and when asked why he did not disclose that earlier, he replied "I don't like talking about the past and that is a private matter". He again refused to provide a statement (id., 64).
12. The report, if true, could carry weight on the question of fitness in the public interest, but it adds little of assistance in resolving the question of whether the transfer documents in relation to the Manildra property have an apparent relevance to the respondent's case in the substantive matter. The third parties involved, Ms Pearce and Ms Smith, have not been the subject of any imputations. Again, the facts that the applicant's brothers Abdul and Mohammed are both subject to FPOs and Abdul currently faces a charge of attempted murder do not appear to make the transfer documents relevant on the issue of public interest.
13. A suspicion that the summonsed documents will or may assist the respondent is not enough (Carroll, loc. cit.) and the issuing party has the burden of showing that the documents will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that they are likely to do so (ICAP, loc. cit.). On the evidence before the tribunal, the respondent's case for upholding the summons is mainly in the nature of suspicion. The link with the issues of public safety and fitness in the public interest is too tenuous to give the summons a legitimate forensic purpose. Nor is it "on the cards" that the documents would materially assist the respondent's case on the substantive issue. The summons should be set aside.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 05 September 2022