E PRELIMINARY DISCOVERY
119 Given I have decided the case on jurisdictional grounds, it is unnecessary to determine the underlying merits of Mr Smith's application. For completeness, however, I should note that my concerns as to the evidence go well beyond colourability.
120 It will be recalled Mr Smith gave evidence that he believes: (a) Mr Gazal gave untruthful evidence at the Initial Proceeding; (b) the NAB and Mr Gazal falsely asserted to the QPS that Mr Gazal was coerced and that the evidence that Mr Gazal gave at the Initial Proceeding was true; (c) by reason of these assertions, the QPS took action; and (d) Mr Gazal withdrew from giving evidence because Mr Gazal feared being cross-examined during the Committal Proceeding upon the Privileged Documents.
121 Although the issue of whether some of these beliefs are honestly held was not directed squarely to Mr Smith in cross-examination, Mr Smith's overarching belief that Mr Gazal gave untruthful evidence at the Initial Proceeding, and that his alleged confession was voluntary, was tested throughout the cross-examination: see, for example, T30.12-46 (extracted above); T32.22-45; T38.24-26; T39.18-25.
122 Given my concerns as to Mr Smith's evidence, and evidence concerning the events in Batam more generally, I am left with a feeling of disquiet about accepting Mr Smith's evidence that he subjectively truly believes Mr Gazal's alleged confession was voluntary or the NAB and Mr Gazal falsely asserted to the QPS that Mr Gazal was coerced. Equally, I have difficulty accepting Mr Smith's evidence that he has a reasonable belief that he may have the right to obtain relief in this Court from the NAB.
123 To the extent it might be said these specific propositions were not challenged directly in cross-examination, this is not an adequate answer to my state of non-satisfaction as to his evidence of belief. As Sir Owen Dixon emphasised, a party bearing the onus will not succeed unless the whole of the evidence establishes a "reasonable satisfaction" on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 (at 403, 407)), and the "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel (1959) 101 CLR 298 (at 305).
124 Even if I am wrong as to my factual findings which have informed my view that the statutory claims are colourable and as to Mr Smith's subjective belief, I would nevertheless refuse relief. I do not consider that Mr Smith's belief that he may have the right to obtain relief pursuant to those claims is objectively reasonable due to their obvious deficiencies. I have already dealt with the want of merit of the statutory claims, and for the following reasons, I consider the malicious prosecution claim also suffers from obvious difficulties.
125 First, there is not a jot or tittle of evidence upon which to base any belief, let alone a reasonable belief, that the QPS's decision to bring the Charges and the New Charges against Mr Smith was initiated by the NAB's complaint, or otherwise beyond the exercise of their independent prosecutorial discretion: A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 (at 502-503 [1], 512-514 [34]-[39] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). The decision to lay the Charges was made only after the computer records detailing the Batam Plot were acquired in March 2014, during the execution of unrelated search warrants against Phoenix Global. Indeed, as stated above, when the NAB first advised the QPS of the events that occurred in Batam in January 2013, the QPS declined to pursue a criminal investigation.
126 Secondly, there is no evidence to support the belief that the NAB acted maliciously in providing information to the QPS. Malice involves acting for a sole or dominant purpose that is other than a proper purpose of instituting criminal proceedings: A v State of New South Wales (at 519 [55], 531 [91] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). Mr Smith does not explain any rational basis for any belief that the NAB acted maliciously, or any case theory as to what motivated the NAB to provide information to the QPS other than for the purpose of instituting criminal proceedings. Rather, counsel for Mr Smith submits that there is a reasonable basis, inferred from the "sequence of events", to believe that the NAB acted maliciously in privately "agitating" the QPS to defeat any further claim that Mr Smith might bring against the NAB. Yet, such a belief finds no reasonable foundation in the evidence. It is to be remembered that the NAB first reported the events in Batam to the QPS on 29 January 2013 and, when Mr Smith subsequently raised the prospect of further litigation in April 2013, the solicitors for the NAB stated that they would "accept service of any originating process [Mr Smith] wishes to serve in relation to this matter". Further, the fact that the NAB did not accept Mr Smith's invitation for Messrs Gazal, Clarke and Smith to attend a meeting with the QPS together, was not only reasonable, but to do otherwise would have been absurd given the alleged threats made against Mr Gazal. Even so, the NAB's invitation for Mr Smith to attend a meeting with representatives of the NAB remained open, but was not accepted.
127 Thirdly, and in any event, an action for malicious prosecution will not be available where the material before the prosecutor at the time of initiating or maintaining the charge: (1) persuaded the prosecutor that laying the charge was proper; and (2) would have been objectively assessed as warranting the laying of a charge: A v State of New South Wales (at 519 [56] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). There is nothing that suggests that the NAB knowingly put forward a false version of events to the QPS such that it did not have a reasonable or proper cause to consider that Mr Smith may have engaged in criminal conduct. To the extent that Mr Smith submits that Mr Gazal knew his evidence was false, and that knowledge alone is sufficient to prove malice against the NAB, Mr Smith merely begs the question of why he does not already have sufficient information to decide to commence a proceeding for the tort of malicious prosecution.
128 Although not initially in evidence before the Court, Mr Smith already has in his possession an extensive record of documents relevant to the communications between the NAB and the QPS, including the QPS' brief of evidence for the Committal Proceeding containing statements and diary entries from police officers detailing their communications with the NAB. Despite this, Mr Smith deposed in his affidavit sworn 21 July 2021 (at [13(b)]) that he does not know "what communications passed between the NAB and the QPS in relation to the Batam Meeting, the Charges or the New Charges, and the context and content of such communications". The accuracy of this statement was challenged over the course of the cross-examination (T44.33-45.10):
So a moment ago you told me that by 13(b) of your first affidavit you were intending to convey that you had no information about communications between the NAB and police? That are relevant to - to the evidence that the NAB claiming legal and professional privilege over.
Your evidence to me earlier that you had no information was wrong, wasn't it? About the - no, no. Well, you're not listening to what I'm saying. It was in reference to the information that we - we're asking that we can inspect, but you're pointing out things we don't need to inspect. We've already got it. The whole reason we're here is I'm hoping that this court will allow me to inspect those documents. I'm not sure why they even need to be hidden.
Yes. You didn't put the police brief of evidence in evidence before this court, did you? No, because we want to inspect what the NABs wouldn't hand over in the criminal charges. And when they did, Gazal miraculously withdrew his - his complaint. And now again you don't want to hand over the documents again.
Yes. The failure to put in the police brief of evidence enabled you to make a statement in your affidavit that you had no information about these matters, didn't it? As far as the - the - the documents that we're seeking to inspect.
Yes. What is the incremental advantage that you're hoping to get by looking at more documents? Well, I'm hoping that my legal team will be able to advise me the likelihood of getting up on a case against the NAB.
(Emphasis added).
129 As is evident from the whole of the evidence and as is borne out in the above extract, Mr Smith has no more than suspicion or conjecture, that he might find something in the Privileged Documents, or any further records of any communications between the NAB and the QPS, that would assist him in bringing any claim for malicious prosecution. Moreover, having already in his possession an extensive record of documents evincing the communications between the NAB and the QPS, there is nothing to suggest reasonably that the Privileged Documents, which include draft witness statements and records of interviews of Messrs Gazal and Clarke prepared for use in the AKS trial, would assist in making the decision to bring the tort of malicious prosecution.
130 It follows that if this Court (contrary to my view) did have jurisdiction, and I was also mistaken as to my lack of persuasion as to Mr Smith subjectively holding a belief as to the state of affairs required by FCR 7.23(1)(a), any such subjective belief would not be tenable, rational or reasonably based (such that it would not be objectively reasonable) and the requirements for preliminary discovery would not be made out.
131 Finally, for completeness, I should record what I would have done in the event: (1) I was correct in my finding that an attempt was made to fabricate jurisdiction; but (2) the subject matter jurisdiction of the Court was attracted because the prospective claim arises because of NAB's status as a corporation able to be sued; and (3) I should have found Mr Smith somehow fell over the line in establishing a reasonable belief and a need for the documents. In such circumstances, I would nevertheless deny relief relying upon on discretionary grounds. The inappropriate attempt to fabricate federal jurisdiction, the lack of candour in the evidence of Mr Smith to this Court, and the apparent weakness of the proposed case, taken together, overwhelm all other relevant considerations in the exercise of the discretion to grant relief in the circumstances of this case.