Storey v Commissioner of the New South Wales Police Force

Supreme Court of NSW|2020-08-20|Before: Davies J

Judgment

The plaintiff, acting for himself, commenced proceedings on 26 February 2020 seeking judicial review of proceedings in the Industrial Relations Commission of New South Wales (IRC). An amended summons was filed on 29 April 2020 which expanded the orders sought and identified, for the first time, the grounds upon which relief was sought. The Commissioner of Police is named as the first defendant and the IRC as the second defendant.
The two orders challenged in the IRC were an order of Commissioner Constant on 20 August 2019 dismissing the plaintiff's application under s 181E of the Police Act 1990 (NSW), and a decision of the Full Bench of the IRC made on 22 November 2019 refusing leave to appeal against the decision of Commissioner Constant. A supplementary order was sought remitting the plaintiff's application under s 181E to the IRC to be determined according to law.
The plaintiff also sought an order setting aside the decision or order of the Commissioner of Police (who I shall refer to herein as "the defendant") dated 6 April 2018 removing the plaintiff from the police force under s 181D of the Police Act. It was that removal which led to the review proceedings in the IRC.
On 25 May 2020 the present proceedings were listed for final hearing on 2 September 2020.
On 17 July 2020 the plaintiff filed a notice of motion seeking leave under r 59.7(4) of the Uniform Civil Procedure Rules 2005 (NSW) to administer interrogatories to the first defendant, and seeking an order that the first defendant answer those interrogatories. The interrogatories were attached to the notice of motion.
I heard the notice of motion on 20 August 2020.

Application to administer interrogatories

I then proceeded to hear the plaintiff's motion seeking leave to administer interrogatories. At the conclusion of the hearing I made orders dismissing the notice of motion and ordered that the plaintiff pay the defendant's cost of the motion. These are my reasons for so doing.
Part 59 UCPR is concerned with judicial review proceedings. Rule 59.7 relevantly provides: (4) A party may not, without the leave of the court, seek discovery from, or interrogate, another party to the proceedings. An application for leave is to include a draft list of categories of documents to be discovered or draft interrogatories.
Rule 22.1 UCPR provides: 22.1 Interrogatories (cf SCR Part 24, rules 1-6; DCR Part 22A, rules 1-6) (1) At any stage of the proceedings, the court may order any party to answer specified interrogatories. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. (3) … (4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. (5) …
In Edwards v Hornsby Shire Council [2014] NSWSC 600, a case where personal injury damages were claimed, Schmidt J said: [16] The question of necessity must be approached as meaning "reasonably necessary for the disposing fairly of the cause or matter" or "necessary in the interests of a fair trial" (see Boyle v Downs [1979] NSWLR 192 at 205 per Cross J and Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 at 292 per Rath J).
The interrogatories are said to be related to the issue identified in ground 7 of the appeal, and it is submitted that they also potentially cover information relating to ground 10.
Grounds 7 and 10 are these: 7. In failing to exercise the requirement under Section 181F (1) (b) of the Police Act 1990 (to consider the case presented by the applicant), due to the existence of a conflict of interest (from which the Commissioner of Police benefited) affecting the legal representatives of the applicant, such that the Industrial Relations Commission did not exercise jurisdiction by considering the applicant's case and as the conflict of interest stymied the operation of the legislative scheme (under Division 1C of the Police Act 1990) designed to afford natural justice to the applicant. 10. In the commission informing itself of evidence & grounds, including at, preceding & after line 1 page 48 of transcript 190423 (of 1-April-2019), as this is outside the assessment imposed by Section 181F (1) of the Police Act 1990.
The interrogatories sought to be administered are these: 1. Was Michael Ghobrial (or any solicitor or barrister assisting them) a participant in a controlled operation at any time from January 2017 to 8 August 2018 (inclusive)? a. Was Michael Ghobrial (or any solicitor or barrister assisting them) influenced by any public officer in the provision or purported provision of legal services to the plaintiff? i. If yes. who and what public office did they hold? b. What was the purported legal basis of the influence? c. Was there any influence or attempted influence of Michael Ghobrial (or any solicitor or barrister assisting them) by any public officer, in the compilation of the response to the show cause notice issued by the first defendant to the plaintiff? i. Was there influence or attempted influence of Michael Ghobrial (or any solicitor or barrister assisting them) by any public officer in relation to the application to the Industrial Relations Commission dated 23 April 2018? d. Was any secretary or employee of Michael Ghobrial a participant in a controlled operation, or influenced by any person acting for the interests of the Commissioner of Police, in the period January 2017 to 8 August 2018? 2. Was Dieb Khoury, Werrdan Khoury, John Eun, (or any solicitor or barrister assisting them (such as Barrister Paul Madden)) a participant in a controlled operation at any time in the period 08 August 2018 to 01 July 2020? a. Was Dieb Khoury, Werrdan Khoury, John Eun, Paul Madden (or any other solicitor or barrister assisting or purporting to assist them) influenced (by a public officer) in the provision or purported provision of legal advice or representation to Justin Storey? i. If yes, who and what public office? b. What was the nature of the influence? 3. Was any conversation between Justin Storey, Dieb Khoury, Werrdan Khoury, John Eun (or any solicitor or barrister assisting them) intercepted, recorded or otherwise overheard (whilst Justin Storey was physically present at the premises of Level 8 of 64 Castlereagh Street, Sydney) by any public officer? a. Did Dieb Khoury, Werrdan Khoury, John Eun (or any solicitor or barrister assisting them) know that such interception, recording or overhearing was occurring? b. Did Dieb Khoury, Werrdan Khoury, John Eun (or any solicitor or barrister assisting them) consent to such interception, recording or overhearing occurring? 4. Were any orders ever made under Section 164A(1)(d) of the Industrial Relations Act 1996 prohibiting or restricting the disclosure to the plaintiff (who was at that stage the applicant (or in relation to the appeal, the appellant)) of evidence given before the commission, or the contents of a document lodged with the commission or received in evidence by the commission in relation to the proceedings? a. Did Dieb Khoury, Werrdan Khoury, John Eun, Paul Madden (or any other legal representative assisting them) know that those order/s were made? b. Did Dieb Khoury, Werrdan Khoury, John Eun, Paul Madden (or any other legal representative assisting them) consent to those order/s being made? 5. Was Dieb Khoury, Werrdan Khoury, John Eun, Paul Madden (or any other solicitor or barrister assisting them) influenced by any public officer: a. Whilst appearing before the Industrial Relations Commission (on 28 September 2018) in relation to the motion to set aside the summons to produce filed 18 August 2018? i. In the writing or compilation of the summons to produce filed 18 August 2018? b. In the obstructing, delaying or failing to submit the amended application eventually filed 05 December 2018? i. In causing a completely separate application to be filed instead of it without my consent? c. Whilst appearing before the Industrial Relations Commission (on 7 March 2019) to defend a motion to set aside a second summons to produce filed 25 January 2019? d. In the writing, compilation or provision of applicant evidence or submissions, including the affidavit dated 15 October 2018, the reply affidavit dated 29 January 2019, the expert report of Dr Alan Watt or any submissions made on appeal before the full bench of the Industrial Relations Commission? e. In the general provision of legal advice or representation to Justin Storey? f. In the compilation of a Notice to Produce dated 15 March 2019 & served 15 March 2019 upon the Commissioner of Police? g. In the presentation of the applicant's case before the commission on 01 April 2019, 2 April 2019, 12 November 2019, 21 November 2019, or any other occasion? h. In the submissions or omissions by Paul Madden or any legal representative acting for Justin Storey or purporting to act for Justin Storey in relation to the proceeding on any of the occasions set out at (g) above, i In determining or submitting the questions asked or determining the questions not asked of any witness in the proceedings. 6. Prior to the 8th of August 2018 the female secretary of Michael Ghobrial referred to the plaintiff Justin Storey as "Jason" whilst the plaintiff was on the legal firm's premises located at Suite 2E The Broadwalk Arcade, 458 - 470 High Street, Penrith. a Who was responsible for causing her to call the plaintiff "Jason'"? b When did the communication occur? c Where did this communication occur? d Was Michael Ghobrial aware that this communication had occurred7 i If yes, what legal basis was purportedly used to indemnify him for failing to notify the plaintiff that such communication (and the associated conflict of interest) had occurred9 7. Between the 8th of August 2018 and April 2019 Dieb Khoury referred to the plaintiff Justin Storey as "Jason" whilst the plaintiff was present in the office of Benjamin & Khoury solicitors located at Level 8 of 64 Castlereagh street, Sydney. a Who was responsible for causing Dieb Khoury to refer to the plaintiff as "Jason'"? b When did the communication with Dieb Khoury occur? c Where did the communication with Dieb Khoury occur? d What legal basis was purportedly used to indemnify Dieb Khoury for failing to notify the plaintiff that such communication (and the associated conflict of interest) had occurred? 8. Between November 2019 and July 2020 (inclusive) the plaintiff has been unsuccessful in applying for employment on more than 20 occasions from more than 18 different potential employers. a Has any communication been made (by any public officer or person assisting a public officer) with any potential employer, recruitment agency or other entity with whom the plaintiff has applied for employment or expressed interest in obtaining employment during this period? i Has this been done so as to prevent the plaintiff from gaining employment? ii. Has this been done so as to prevent the plaintiff from accessing an income? iii. Has this been done to prevent the plaintiff from being able to obtain or retain legal advice or legal representation in relation to this matter? b. Has any public officer received information from the NSW Police Force (or given information to the NSW Police Force) about potential employers, recruitment agencies or other entities with whom the plaintiff has applied for employment or expressed an interest in obtaining employment during this period?

The evidence

The evidentiary basis for seeking the interrogatories is set out in the plaintiff's affidavit sworn 24 July 2020.
The plaintiff says that he retained the services of a solicitor, Michael Ghobrial, prior to the issuing by the Commissioner of the show cause notice in October 2017. Mr Ghobrial was retained to compile the response to that notice which was dated 21 December 2017. He was then retained to prepare the application for review under s 181E of the Police Act, and to appear before the IRC when that application was listed for directions. Mr Ghobrial's retainer was terminated on 8 August 2018.
Part of the plaintiff's complaint about Mr Ghobrial was that he was generally neglectful of his matter. It appears that documents were filed and served either at the last minute or after the time allowed by the IRC for doing so. The plaintiff says that he believes these actions and inactions have occurred due to the existence of the conflict of interest. He says further: 21 I believe that this failure to respond over a number of months to basic correspondence and to basic requests to provide information relating to a complaint that I initiated, necessarily demonstrates (when put into context with further information as outlined below) that the Law Society has been approached by public officers and influenced into obstructing my attempts to obtain information and materials necessary to provide evidence of the associated conflict of interest to the court.
On 8 October 2018 the plaintiff made a complaint to the Office of the Legal Services Commissioner asserting that Mr Ghobrial had been acting with a conflict of interest "that was being implemented by persons acting for the benefit of the Commissioner of Police". It appears that the Legal Services Commissioner referred the matter to the Law Society. The plaintiff said that there were delays in the Law Society responding to the complaint.
At one time the plaintiff said that he had received a letter from the Law Society dated 27 September 2019 saying: A problem has been identified with the way in which this matter was referred to the Law Society. Whilst that problem is under review, all progress on the matter has been suspended. I will write to you again when progress on the matter resumes. He said that he has not subsequently had a response from the Law Society, and it has not finalised the complaint.
On 8 August 2018, the plaintiff retained Benjamin & Khoury Solicitors. It appears that the solicitor looking after the plaintiff's matter in the IRC was Dieb Khoury.
In his affidavit, the plaintiff sets out a number of complaints that he had with that firm almost from the outset of the retainer, including complaints concerning the way the proceedings were conducted on his behalf by his barrister Paul Madden and by his solicitors. Some of the complaints appear to be captious. For example, in paragraph 27 of his affidavit the plaintiff said that when the Commissioner asked a question of Mr Khoury he would respond with a two word answer. He identified the following exchange: COMMISSIONER: Sorry, Mr Khoury, where did you want me to go? KHOURY: Paragraph 48 That exchange and others like it were said to be done, to create a situation where the defendant would have stronger grounds to request that the items be set aside and that this occurred due to the conflict of interest affecting Dieb Khoury that occurred to the benefit of the Commissioner of Police
The plaintiff then said this in his affidavit: 37. It is my belief, due to the continued attempts to undermine my case, and the refusal and failure to take basic actions, and then obstructing and delaying attempts to remediate those deficiencies, that this is the result of a conflict of interest affecting legal representatives across different firms. It is my belief that for such wide interference to occur, it can only be a public officer that is responsible, including for the reasons set out below.
The plaintiff set out that from November 2019 to July 2020 he had applied for employment on more than 20 occasions with 18 separate employers. None of the applications was successful. He says that as a result of not being employed he had been unable to obtain legal advice or retain representation in the matter.
It is necessary to set out the remainder of his affidavit which reads: 43. Further to this, over a number of years various people that I have encountered have referred to me as "Jason." 44. I infer that this is a joke of some sort by investigating officers where they think it is funny to approach individuals and instruct them to refer to me as "Jason", but I do not know why that particular name has been chosen. 45. For example, in the year 2018 when visiting a Chinese restaurant (The Hong Kong Chinese Restaurant) located in Taree, the female manager, to whom I had never introduced myself, approached me and referred to me as "Jason," 46. Similarly, I have been referred to as "Jason" by an elderly female at Taree Library (in the period August 2019 - November 2019) and a male with whom I had not introduced myself at Manning Point Bowling Club (in the period November 2019 - February 2020). 47. Prior to this in the period 2017 - 2018 the female legal secretary of Michael Ghobrial also referred to me as "Jason" whilst I was present at the firm's premises at Suite 2E, The Broadwalk Arcade, 458 - 470 High Street, Penrith. 48. On one occasion whilst I was present at the premises of Dieb Khoury (solicitor) at Level 8 of 64 Castlereagh Street, Sydney, (in the period October 2018 - February 2019), Dieb Khoury began to leave the room and whilst doing so lent towards me and said words to the effect of "Thanks Jason." 49. I believe that for such "conspiracy" to occur, across such a wide range of places and a wide range of time, that it necessarily involves the use of state power, to not only know who to approach so as to instruct them to refer to me as "Jason", but also to successfully instigate them into doing so. For example, if an ordinary person approached me and instructed me to refer to someone by an alternate name, I would not do it. 50. As the persons instructed to refer to me as "Jason" includes the legal representative (Dieb Khoury) and the secretary of a legal representative (Michael Ghobrial), of two separate law firms, I believe this demonstrates a capability to: approach legal representatives discreetly, to instruct them and their employees to undertake actions towards "clients" discreetly, to fail to notify such clients that such communication had been made (specifically as it is my understanding that a legal representative is otherwise required to disclose a conflict of interest if it arises). 51. I was never advised by either Michael Ghobrial or Dieb Khoury that such an approach had been made or that such instruction had been given. I believe that this therefore demonstrates that they were truly acting on the instruction of public officers, and not purely in my interests in this matter, and were at times acting against my interests. 52. As Michael Ghobrial has a suspended practising certificate, he is no longer operating or in business and so is unable to be approached by myself. 53. I am, at the time of writing, in a costs dispute with Dieb Khoury, with costs being assessed by a supreme court appointed costs assessor. I have outlined in my application for assessment my concern regarding the conflict of interest. As a result of this, the supreme court appointed costs assessor has directed Dieb Khoury on 5 separate occasions to respond to a ground relating to the conflict of interest. On each of those 5 occasions, Dieb Khoury has failed to respond within the time allotted. There is therefore an indication he is seeking to continue to conceal such information. 54. If is therefore the case that specific information, as sought in submitted interrogatories, is peculiarly within the knowledge of the defendant, it involves complex questions going to the relationship (legal and otherwise) between the defendant and third parties (including third party officers) and would, for myself, otherwise be very difficult or impossible to prove or would be such that probative evidence on such issues would be difficult or impossible to obtain. (emphasis in the original)

Plaintiff's submissions

It may first be observed that some of the material in the affidavit is in the form of submission, but no objection was taken to it. In these paragraphs set out above the plaintiff appears to suggest that a conspiracy existed involving the Commissioner whereby various persons, including Mr Khoury and someone in the office of Mr Ghobrial, refer to the plaintiff as "Jason". The plaintiff infers that either or both of Mr Ghobrial and Mr Khoury had been approached to behave in that way and, because they did not tell him they had been so approached, they were acting against his interests. He also asserts that because Mr Khoury has failed on a number of occasions to respond to an enquiry from a costs assessor, that is further proof that he is seeking to conceal information about the conflict of interest.
In his oral submissions and his submissions in reply, the plaintiff said that he relied on coincidence evidence to assert that there was a conflict of interest. The coincidences appear to be; various people calling the plaintiff "Jason"; various things which the plaintiff claimed his solicitors had done against his interests in the proceedings before the IRC which are set out in his written submissions in reply; the failure of the Law Society to respond to his communications and to finalise his complaint; and his inability to obtain employment. The complaint against his solicitors was said to amount to more than incompetence or negligence. He submitted that they deliberately conducted the proceedings in a way that was inimical to his interests.
He said of these matters in his submissions in reply, It is submitted that it is improbable that these events occurred coincidentally, and that these individual observations as listed above further re-enforce (sic) the overall submission (when they are viewed together as a continuing course of conduct), that is to say, that as coincidence evidence, and owing to the similarities in the events or the circumstances in which they occurred and the outcomes they have produced, that it is probable that they occurred at the instigation of public officers.
I endeavoured to ascertain who these "public officers" were, and in particular to ascertain if they were police officers, because the plaintiff submitted that their conduct was to the benefit of the defendant. The plaintiff said that they may be police officers or persons assisting police officers, because the defendant "controls the public officers". He said that he needs the answers to the interrogatories to find out who these public officers were who (a) had approached people telling them to call him "Jason", (b) had approached his legal advisers so that they would not conduct the proceedings properly, and (c) had approached the Law Society to influence their handling of his complaint.
It is on that basis that he seeks to justify his application for interrogatories.

Determination

The allegations the plaintiff makes are extremely serious. In substance he is asserting that the defendant and the two firms of solicitors perverted the course of justice, and that the defendant misused his position and authority to exert improper influence on the solicitors and the Law Society. The allegations suggest a criminal conspiracy between, at least, the defendant and the firms of solicitors. There is not a shred of evidence to support any of the allegations. They are entirely dependent on the plaintiff's imagination and speculation. The allegations should not have been made.
The delay in relation to the Law Society has a logical explanation. In Council of the Law Society v DXW [2019] NSWSCATOD 101, a problem was identified in the complaint process in s 266 of the Legal Profession Uniform Law (NSW) No 16a. That problem was what was referred to in the Law Society's letter set out at [23] above. The problem was not rectified until earlier this year. That might suggest also that other explanations exist in relation to the other matters the plaintiff puts forward to support his unsubstantiated conclusion of criminal behaviour on the part of the defendant and others.
Success on ground 7 of the summons is dependent upon the demonstration of a conflict of interest affecting the plaintiff's legal representatives. Nothing contained in the plaintiff's affidavit of 24 July 2020 provides any basis for suspecting that those legal representatives were in a conflict of interest, how the defendant was supposed to be involved in that conflict of interest, and how that conflict of interest might have meant that the IRC did not exercise its jurisdiction by considering the plaintiff's case.
There is nothing to explain what benefit the solicitors would obtain for acting against the plaintiff's interests. The plaintiff was not able to explain how the participation of the solicitors in a "controlled operation" (a term which he said he used in its usual meaning, as defined in the Law Enforcement (Controlled Operations) Act 1997 (NSW)) had any connection to a conflict of interest. The assertions of conflict of interest in the affidavit are made without any factual basis.
This is an egregious example of a party seeking to serve interrogatories as a fishing expedition in an endeavour to find if there is any basis for the speculation in which the plaintiff has engaged in the affidavit and in his submissions.
In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, Owen J (Street CJ and Herron J agreeing) described a fishing expedition in these terms: But whether a particular expedition is a mere "fishing expedition" depends upon the meaning of that phrase. A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition".
In W A Pines Pty v Bannerman (1980) 41 FLR 169, Toohey J said at 174: It is not enough for an applicant merely to assert lack of reasons to believe and then seek, as undoubtedly the applicant does in the present case, to find some support for that contention through the procedures of discovery and interrogatories. There is in the material before the court an affidavit sworn by the respondent on 17th January, 1980, that when he signed the notice he had reason to believe and did in fact believe that the matters referred to in the notice may constitute contraventions of the Act…. In the absence of some disclosed factual foundation for the allegation that the respondent did not have reason to believe any of the matters set out in s 155 when he issued the notice in question, neither discovery nor interrogatories is necessary for fairly disposing of the matters in question. They are an attempt to make a case in a situation which can truly be described as fishing.
In the present case there is no disclosed factual foundation for the allegation of a conflict of interest or of the other matters alleged.
The plaintiff submitted that ground 10 was also concerned with the conflict of interest, because that conflict of interest was the basis upon which Commissioner Constant was able to inform herself of matters, contrary to the provision of the Police Act. When I asked him to identify which matters about which she had informed herself, he said that he did not know because he was not there. That was why, he said, he needed the answers to interrogatories.
Ground 10 appears to be misconceived. Section 181G of the Police Act applies particular provisions of the Industrial Relations Act 1996 (NSW) to such a review. In particular, ss 162 and 163 of the Industrial Relations Act with only the modifications contained in s 181G. Section 163(1)(b) enables the Commission to inform itself on any matter in any way that it considers to be just. What the Commissioner is saying at transcript page 48 line 1 of 1 April 2019 is nothing more than that.
However, even if the Commissioner was not entitled to inform herself of matters, the interrogatories, which are directed to the defendant, would not throw any light on the matters about which the Commissioner had so informed herself. In that way, they are not necessary for the conduct of the proceedings to the extent of what is argued in relation to ground 10.

Conclusion

For those reasons I made the following orders:
Plaintiff's application to vacate hearing date for Motions listed on 20 August 2020 and the substantive hearing is refused. Plaintiff's notice of motion dated 18 August 2020 is dismissed.
Plaintiff's notice of motion dated 17 July 2020 is dismissed.
Plaintiff to pay the First Defendant's costs of the hearing of the notice of motion of 17 July 2020.

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: 27 August 2020

Industrial Relations Act 1996(NSW)ss 162, 163, 181

Police Act 1990(NSW)ss 181E, 181G

At a glance

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Judgment (8 paragraphs)

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