Tutoveanu v Commissioner of the Australian Federal Police

File Number(s): 2025/454092

REVISED EX TEMPORE JUDGMENT

1. This matter has been referred to me by the Registrar in my capacity as Duty Judge.

2. The first plaintiff, Mr Tutoveanu, appears in person. The second plaintiff, Joel Davis, is currently in prison. Both the first defendant, being the Commissioner of the Australian Federal Police, and the second defendant, being the Commissioner of Corrective Services NSW, are legally represented.

3. The first plaintiff explains to me today that he is a member of the public who on reading press reports relating to the imprisonment of the second plaintiff, Mr Davis, became concerned that Mr Davis had been wrongfully imprisoned. He determined to take action originally by way of a writ of habeas corpus to require that Mr Davis be brought before the Court and that he be discharged and released from custody.

4. The matter originally came before Walton J on 23 November 2025 who after hearing from the first plaintiff and the representatives of the defendants, made orders which are in the following terms:

“The petitioner accepted that this Court would make an order in the disposition of the petition by Notice of Motion as follows:

1. Dismiss the notice of motion filed in Court on 23 November 2025 without prejudice to the present petitioner bringing a further petition for Habeas Corpus in the event that the petitioner has the express consent of the present detained person, Joel Davis, to bring that application for Habeas Corpus.

2. No order as to costs.”

5. The first plaintiff then filed a new notice of motion dated 12 December 2025 seeking the following orders:

“1. Order in an urgent case prior to commence proceedings for writ of habeas corpus: rr 6.1.2(b) and 25.2(1)(a) of the UCPR.

2. Issue a writ of habeas corpus to the Commissioner of Corrective Services to facilitate the second plaintiff’s appearance to the Court.

3. The second plaintiff be discharged and released from custody initiated by the Australian Federal Police.”

6. In response to that motion, the second defendant filed a motion dated 2 March 2026 seeking that the first plaintiff’s motion be dismissed.

7. The background to the matter is that in November 2025, members of the Australian Federal Police arrested the second plaintiff, Mr Davis, and charged him with one count of using a carriage service to menace, harass or cause offence, contrary to s 474.17 of the Criminal Code (Cth). At the time of his arrest, Mr Davis was on bail for previous offences. He was refused bail. As I understand it, he is currently pursuing an application for bail in this Court which is listed on 2 April 2026.

8. The reason that the first plaintiff is bringing this application is because he believes that Mr Davis has been wrongly charged and should not be in prison. As he explained to me, he has no relationship with Mr Davis, but is he seeking to bring this application on his behalf to ensure that he is released from prison.

9. The orders previously made by Walton J foreshadowed the possibility that the first plaintiff might file another motion, provided, however, that the motion was brought with the consent of Mr Davis.

10. In support of its motion, the second defendant relies on an affidavit from a solicitor employed in the Crown Solicitor’s Office dated 27 February 2026. Annexed to that affidavit is a letter from the Crown Solicitor’s Office addressed to Mr Davis in Long Bay Hospital dated 19 February 2026.

11. Also annexed is an email from Paladin Lawyers, the solicitors for Mr Davis, dated 27 February 2026 addressed to the first plaintiff, Mr Tutoveanu, as well as the solicitors for the defendants, saying:

“Our client has given us firm and clear instructions to inform you that he does not consent to you seeking to join him in your application before the Supreme Court of NSW.” (emphasis in original)

12. Those solicitors also go on to say that:

“His signing of the ‘consent order’ you refer to in your email below should in no way be construed by you as Mr Davis giving you express or implied consent to be a party to your proceeding, or consenting to you commencing any form of legal proceeding on his behalf.”

13. The first plaintiff's response to this is to suggest that in some way the solicitors are just trying to get fees, that in some way they are doing it for their own reasons, and as I understand it, that I would not accept the email from the solicitors for Mr Davis as evidence of Mr Davis’ instructions.

14. There is no basis for that submission. There is no evidence before me to suggest that the correspondence from the solicitors for Mr Davis is not genuine or that they do not have the instructions to which they refer.

15. Indeed, the correspondence from Mr Davis’ solicitors is unsurprising, bearing in mind that Mr Davis is himself bringing an application to be released from prison in precisely a month’s time.

16. The reason that the first plaintiff is bringing these proceedings is unclear, other than that he appears to hold a view that Mr Davis should not be in prison and wants to do something about that. He has no standing to bring this application, absent the consent of Mr Davis. That was made clear on the last occasion when he attempted to pursue such an application. His answer is to make scurrilous allegations about Mr Davis’ solicitors. I reject them.

17. In those circumstances, the first plaintiff's motion filed 12 December 2025 is dismissed.

18. The defendants seek costs. On the last occasion the matter was before the Court, that is, in respect of the first plaintiff’s earlier motion, the matter was dismissed by consent without costs. However, the first plaintiff has sought to bring the parties to Court again. The first plaintiff has, again, been unsuccessful.

19. I afforded the first plaintiff an opportunity to indicate why he should not be ordered to pay costs. He made submissions about the merits of the matter and various other matters relating to Mr Davis’ lawyers, and ultimately, about the approach I was taking. None of those matters impact upon my discretion as to costs and in those circumstances, I order the first plaintiff to pay the defendants’ costs.

20. Therefore, I make the following orders:

21. The first plaintiff’s motion filed 12 December 2025 is dismissed.

22. The first plaintiff to pay the defendants’ costs.

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