Doudar v Commissioner for Corrective Services NSW - [2011] NSWSC 778

Supreme Court

New South Wales

Medium Neutral Citation: Doudar v Commissioner for Corrective Services NSW [2011] NSWSC 778
Hearing dates: 21 July 2011
Decision date: 29 July 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Order that the Defendant is not required to produce in answer to the Notice to Produce of 25 May 2011 or otherwise:
(a) intelligence report 1037.09 dated 2 July 2009;
(b) intelligence report 032.RMPC dated 17 July 2009;
(c) an unredacted incident report of F Cunningham, Assistant Superintendent, dated 18 July 2009;
(d) unredacted file note of B Mood, Superintendent dated 20 July 2009.
(2) Order that the confidential affidavit of Michael Allen John Hovey sworn 5 July 2011 and confidential exhibit MH1 are not to be made available to any person apart from the Defendant and his legal advisors without the leave of a judge of the Court.
(3) Dismiss the Plaintiff's Notice of Motion filed 24 June 2011.
(4) Order that the Plaintiff pay the Defendant's costs of the Notice of Motion.

Catchwords: PRACTICE AND PROCEDURE - Notice to Produce - public interest immunity - proceedings for judicial review of exclusion order by Commissioner for Corrective Services - claim for public interest immunity over some documents relied upon by the Commissioner for his decision - whether s 130 Evidence Act applies - whether information and documents concern "matters of state" - balancing exercise between public interest in disclosure and preserving confidentiality - claim of public interest immunity upheld.
Legislation Cited: Evidence Act 1995
Uniform Civil Procedure Rules
Cases Cited: Attorney-General for NSW v Stuart (1994) 34 NSWLR 667
Cain v Glass (No. 2) (1985) 3 NSWLR 230
Commonwealth v Northern Land Council [1993] 176 CLR 604
DPP v Smith (1996) 86 A Crim R 308
National Crime Authority v Gould (1989) 23 FCR 191
Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562
State of Victoria v Brazel [2008] VSCA 37
Young v Quin (1985) 4 FCR 483
Category: Procedural and other rulings
Parties: Nanci Doudar (Plaintiff)
Commissioner for Corrective Services NSW (Defendant)
Representation: K Edwards (Plaintiff)
R Bhalla (Defendant)
Legal Aid Commission of NSW (Plaintiff)
Crown Solicitor's Office (Defendant)

File Number(s): 2011/174759

Judgment

This is an application for production of documents referred to in a Notice to Produce dated 25 May 2011 served by the Plaintiff on the Defendant. The Defendant resists the production of some of the documents claiming public interest immunity.

The proceedings

The Plaintiff's husband, Rabih Abdulrahman, is being held on remand at the Metropolitan Rehabilitation Remand Centre at Silverwater. He appears to have been held on remand for at least 2 years.

On 26 May 2010 the Plaintiff visited her husband at the MRRC and left some clothing including underwear and socks for him on that occasion.

On 11 June 2010 Superintendent B Mood wrote to the Plaintiff on behalf of the Commissioner denying her access to all New South Wales Correctional Centres from 9 June 2010 until after 9 June 2012. The reason was said to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Doudar v Commissioner for Corrective Services NSW

Details

AGLC: Doudar v Commissioner for Corrective Services NSW [2011] NSWSC 778
Case: [2011] NSWSC 778
Decision Date: 29 July 2011

CaseChat Overview and Summary

The case of Doudar v Commissioner for Corrective Services NSW involved a judicial review of an exclusion order made by the Commissioner. Doudar sought to challenge the decision, claiming that some documents relied upon by the Commissioner were subject to a public interest immunity claim. The case was heard in the Supreme Court of New South Wales. The central issue was whether section 130 of the Evidence Act applied to these documents and if they concerned "matters of state." This required the court to determine the extent to which the public interest in disclosure should be balanced against the need to preserve confidentiality.

The court considered whether the documents in question fell under the category of "matters of state" as defined by the Evidence Act. It assessed the nature of the information and whether it pertained to sensitive governmental operations or national security. The court engaged in a detailed analysis of the documents, weighing the public interest in their disclosure against the potential harm that might result from revealing the information. The Commissioner argued that the documents were crucial to the decision-making process and that their disclosure could undermine national security and governmental integrity.

Ultimately, the court concluded that the documents did indeed relate to matters of state and that the public interest in preserving their confidentiality outweighed the public interest in disclosure. The court upheld the claim of public interest immunity, finding that the Commissioner was entitled to withhold these documents from being produced in the judicial review proceedings. This decision underscored the importance of protecting sensitive information in the context of national security and governmental operations.

The final orders of the court confirmed the upholding of the public interest immunity claim and prohibited the disclosure of the specified documents in the judicial review process.

Orders