El-Saiedy v Superintendent Wademan, Parramatta Sheriff's Office

[2022] NSWSC 1615

Supreme Court

New South Wales

Medium Neutral Citation:

El-Saiedy v Superintendent Wademan, Parramatta Sheriff’s Office [2022] NSWSC 1615

Hearing dates:

22 November 2022

Date of orders:

22 November 2022

Decision date:

22 November 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1)   Mr El-Saeidy's notice of motion filed on 18 November 2022 is dismissed.

(2)   In relation to the claims for interlocutory relief, I confirm the date for the hearing of the claims previously fixed for interlocutory relief on 6 December 2022.

(3)   The plaintiff to pay the Sheriff's costs of and incidental to the notice of motion of 18 November 2022 on the ordinary basis.

Catchwords:

CIVIL PROCEDURE – hearings – adjournment – application dismissed

Cases Cited:

Harman v Secretary of State for Home Department [1983] 1 AC 280

Category:

Procedural rulings

Parties:

Fawzi El-Saeidy (Plaintiff)
Superintendent Parramatta Sheriff’s Office

Representation:

Counsel:
Plaintiff in person
M.E. Morris (Solicitor) (Crown Solicitor’s Office)
D. Jordan (subpoenaed party)

Solicitors:
Crown Solicitors NSW (Defendant)
Crown Solicitors NSW (Subpoenaed party)

File Number(s):

2022/131110

Publication restriction:

Nil

Judgment

1. The plaintiff, Mr El-Saeidy, who is self-represented, has commenced proceedings in this Court by summons, seeking relief principally by way of declarations and injunctions, in relation to an incident which, he says, occurred at Parramatta Courthouse on 29 April 2022. Although it is an unusual way of commencing proceedings of this type, Mr El-Saeidy alleges that, on that day, he was assaulted by a sheriff's officer who ejected him from the Courthouse.

2. While preparing his case for trial, he has issued, as it turns out, a number of subpoenas to the Sheriff of New South Wales (“the Sheriff”), to obtain documents relating to the incident, including CCTV footage recording it. Although the Sheriff has filed a motion seeking to set aside that subpoena on various grounds, including public interest immunity, it seems that Mr El-Saeidy has already obtained access to at least some of the documents including the CCTV footage upon which he wishes to rely to prove his case.

3. The Sheriff has, as I have said, filed a motion to set aside the subpoena, and to seek recovery of those documents. That motion is not before me today. It is listed for hearing on 6 December 2022, together with some other claims for interim relief that Mr El-Saeidy makes. What is before me today is a notice of motion filed on 18 November 2022 by Mr El-Saeidy, seeking an adjournment of that hearing date.

4. The defendants, who are sheriff’s officers who were then employed at Parramatta, neither object nor consent to the application, but adopt a neutral stance. Mr Jordan of counsel, who appears for the Sheriff, opposes the application.

5. There is a detailed affidavit filed by Mr El-Saeidy in support of his motion, but it really goes to what he says are the merits and strengths of his claim. To found his application he principally relies upon material which is now exhibit A before me. These documents demonstrate that he has now made a complaint to the Attorney-General for the State of New South Wales, the Honourable Mark Speakman SC MP, seeking an investigation by that officer, and I think from Mr El-Saeidy's point of view, with a view to some direction that there be a criminal prosecution arising out of the incident of which he complains. Leaving aside entirely whether the Attorney-General is the right person to be making decisions about whether persons should be prosecuted for anything, Mr El-Saeidy submits that I should adjourn the hearing of the Sheriff's motion and other matters for a period of at least three months, to enable the Attorney General's investigations, such as they may be, to be completed, before going on with the matter.

6. From exhibit A, it does seem that, although Mr El-Saeidy requested urgent action, that the complaint was not made until 18 November 2022 which is last Friday. And when the matter came to the attention of the solicitor within the Crown Solicitor's Office, acting for the Sheriff in relation to the application, Mr Brett Thompson, he wrote to the Attorney General's office by email, requesting information about whether the complaint had yet come to the attention of the Attorney General's office, and what action was being taken.

7. A senior member of the Attorney's staff, a Mr Solecki, responded confirming that Mr El-Saeidy's email had been received, attaching a copy, and stating that the matter had been referred to the Department of Communities and Justice for advice.

8. There are two things that arise out of that statement which are of significance to Mr El-Saeidy's application. First, the Attorney-General is not seeking any adjournment of these proceedings for the purpose of any investigation; and secondly, there is no mention of any investigation, other than a request from the Department of which the Attorney is the head for advice.

9. It is important for me to bear firmly in mind that what is listed for hearing on 6 December 2022 is a perfectly routine interlocutory application in civil proceedings in the Court, and the matter has been fixed for that date for some time.

10. It is also important for me to bear in mind, as a matter of significant public interest, that the Court is bound to exercise its functions as an independent branch of government, responsible for the administration of justice. The Court is not under the direction or control of the executive branch of government, and it would involve, in my opinion, a miscarriage of my discretion if I was to effectively decline to exercise the Court's powers and jurisdiction on the basis that the executive branch of government, or for that matter, the legislative branch of government, was contemplating some action which might affect the exercise of the Court's judicial power in relation to the proceedings at hand.

11. It seems to me that it would be wrong of me to forestall the ordinary processes of the Court on the off chance, if I may put it that way, that the Attorney might, within legitimate exercise of his powers, take some action in relation to the complaint made to him by Mr El-Saeidy. I cannot, with respect to Mr El-Saeidy's argument, see any logical connection between what steps the first law officer may take, and the proper exercise by the Court of its powers, and accordingly I reject the application for an adjournment.

12. I also wish to make a comment in relation to a matter. It is obvious, and indeed, it forms part of the Sheriff's application, that Mr El-Saeidy has had access to documents produced, including the CCTV footage, as I have said. Given that that is the subject of the application to be heard on 6 December, I make no comment about it. But what I do wish to comment on is it is apparent that, for the purpose of his complaint to the Attorney-General, Mr El-Saeidy has reproduced and published the documents to which he obtained access to the Attorney-General.

13. Now, as I raised with Mr El-Saeidy during the hearing of his application, that involves an obvious breach of what is referred to as the implied Harman v Secretary of State for Home Department [1983] 1 AC 280 undertaking that every person who obtains access to documents not their own as a result of court processes is taken as having given. The gravamen of the undertaking is that a person who obtains access to documents, either produced under subpoena or served by another party for court purposes, will not use them for any collateral purpose, without the leave of the Court. And Mr El-Saeidy has not sought such leave. A breach of the undertaking may involve a contempt of court which can, of course, attract criminal penalties.

14. Now, when I drew these matters to Mr El-Saeidy's attention, he assured me that he was not aware of those matters. Ignorance of the law is, of course, notoriously, not a defence. But having said that and having made the position clear to Mr El-Saeidy, I do not propose of my own motion to take that matter any further. In expressing myself that way, I do not forestall any application by any other party who may have a legitimate interest in relation to the matter.

15. Mr Jordan of counsel applies for the costs of the motion. Mr El-Saeidy, in strong terms, objects to an order being made for costs, and he makes a strong submission about the justice of his case, and the seriousness of the proceedings.

16. The justice of Mr El-Saeidy's case and the seriousness of the proceedings, of course, are important matters to be determined in due course once the Court's processes have brought them to trial. I do not doubt that the allegations he makes are serious. However, in relation to the ordinary civil proceedings in this Court, of which this is one, the actions of parties have cost implications, and the rule is that costs follow the event. In this matter, the event is that Mr El-Saeidy's notice of motion that he brought before the Court urgently today has been unsuccessful. Although the Court has a discretion to vary the general rule, with respect, nothing that Mr El-Saeidy has said in opposition or objection to Mr Jordan's application is relevant to the exercise of the costs discretion. And I apply the rule that costs follow the event.

17. My orders are:

1. Mr El-Saeidy's notice of motion filed on 18 November 2022 is dismissed.

2. In relation to the claim for interlocutory relief, I confirm the date for the hearing of the claims previously fixed for interlocutory relief on 6 December 2022.

3. The plaintiff to pay the Sheriff's costs of and incidental to the notice of motion of 18 November 2022 on the ordinary basis.

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Decision last updated: 25 November 2022