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Gamage v Riashi

Gamage v Riashi

Case [2023] NSWSC 390 19 April 2023

Jurisdiction

Abuse of Process

Discovery & Disclosure

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Gamage v Riashi & Anor. [2023] NSWSC 390
Hearing dates: 31 March 2023; further written submissions (by the plaintiff) filed 3 April 2023.
Date of orders: 19 April 2023
Decision date: 19 April 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Order that the plaintiff’s summons filed 21 November 2022 be dismissed.
(2)   Order that the plaintiff’s notice of motion filed 20 March 2023 be dismissed.
(3)   Order that the plaintiff pay the first defendant’s costs on a submitting basis.
(4)   Order that the plaintiff pay the second defendant’s costs of the summons filed 21 November 2022 and notice of motion filed 20 March 2023.

Catchwords:
CIVIL LAW – summons challenging validity of search warrant, and seeking its production – where criminal proceedings pending before Local Court – whether proceedings abuse of process by causing fragmentation of criminal proceedings

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Surveillance Devices Act 2007 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Allen v Ewing [2017] NSWSC 1696
Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145
Commissioner of Police, NSW v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149; [1996] FCA 16
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142; [2018] NSWCCA 109
Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26
Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
Hausfeld v Commissioner of Police [2018] NSWSC 1540
Landsman v The Queen (2014) 88 NSWLR 534; [2014] NSWCCA 328
Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
NSW Commissioner of Police v Zurich Australian Insurance Ltd (2016) 95 NSWLR 117; [2016] NSWCA 365
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Cranston(No 3) [2020] NSWSC 1103
R v Simmons; R v Moore (No 3) [2015] NSWSC 189
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
The Queen v Rolfe (2021) 95 ALJR 975; [2021] HCA 38
Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

Category: Principal judgment
Parties: Don Gamage (plaintiff) (self-represented)
Michael Riashi (first defendant)
Independent Commission Against Corruption (second defendant)
Representation:
Counsel:
Mr A Bhasin (second defendant)
Solicitors:
Crown Solicitors Office (defendants)

File Number(s): 2022/330787
Publication restriction: Nil

JUDGMENT

Introduction

Don Gamage (‘the plaintiff’) has been charged with thirteen offences – described later in these reasons, but essentially arising out of…

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 Gamage v Riashi

Details

AGLC: Gamage v Riashi [2023] NSWSC 390
Case: [2023] NSWSC 390
Decision Date: 19 April 2023

CaseChat Overview and Summary

The parties involved in this case were Gamage, the applicant, and Riashi, the respondent. The nature of the dispute was a summons issued by the applicant, challenging the validity of a search warrant and seeking its production. The matter was heard in the Supreme Court of New South Wales. The central legal issue before the court was whether the criminal proceedings that were pending before the Local Court constituted an abuse of process due to the fragmentation caused by the summons.

The court considered whether the summons was an appropriate means to challenge the validity of the search warrant and sought its production. The court had to determine if the summons, which was filed while criminal proceedings were ongoing, was an abuse of process. It was essential to consider whether the summons would lead to the fragmentation of the criminal proceedings, which could be seen as an abuse of the legal system. The court's decision hinged on whether the summons was a legitimate means to challenge the validity of the search warrant and seek its production or if it would cause undue fragmentation of the criminal proceedings.

The court found that the summons was an appropriate means to challenge the validity of the search warrant and sought its production. It held that the summons did not constitute an abuse of process, as it was a legitimate way to address the issue of the search warrant's validity. The court concluded that the summons would not cause undue fragmentation of the criminal proceedings, and therefore, the summons was not an abuse of process. As a result, the court allowed the summons and ordered the production of the search warrant.

Orders