Gamage v Riashi - [2023] NSWSC 277

Supreme Court

New South Wales

Medium Neutral Citation: Gamage v Riashi [2023] NSWSC 277
Hearing dates: 22 March 2023
Date of orders: 22 March 2023
Decision date: 22 March 2023
Jurisdiction: Common Law
Before: Dhanji J
Decision:
(1) Prayer 3(a) of the motion is stood over to 31 March 2023 to the hearing of the plaintiff's summons.
(2) The notice of motion is otherwise dismissed.

Catchwords:
CIVIL PROCEDURE – notice of motion – application by self-represented plaintiff for leave to issue subpoenas – where surveillance warrant was issued - ICAC investigation – where relief sought is essentially duplicative of the final relief sought in the substantive proceeding – legitimate forensic purpose – collateral attack on surveillance warrants

Legislation Cited:
Evidence Act 1995 (NSW), s 138
Surveillance Devices Act 2007 (NSW), s 21(1)(d)
Telecommunications (Interception and Access) Act 1979 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 7.3

Cases Cited:
Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109
Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
Monteiro v the State of New South Wales [2022] NSWSC 148
R v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Wehbe & Anor v Giotopoulos [2022] NSWSC 1566

Category: Procedural rulings
Parties: Don Gamage (Plaintiff)
Michael Riashi (First Defendant)
Independent Commission Against Corruption (Second Defendant)
Representation:
Counsel:
A Bhasin (Second Defendant)
Solicitors:
Self-represented (Plaintiff)
Crown Solicitors Office (Defendants)

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

extempore JUDGMENT (revised)

HIS HONOUR: Mr Gamage is the subject of criminal charges currently proceeding in the Local Court. Those charges arise from an investigation by the Independent Commission Against Corruption (ICAC). He is the applicant on a notice of motion filed in this Court on 20 March 2023. That notice of motion is brought in the context of proceedings brought in this Court by Mr Gamage by way of summons. For convenience, I will refer to Mr Gamage as the plaintiff, although he is also, of course, the applicant on the motion I am determining.
The summons brought by the plaintiff seeks a declaration that the plaintiff is entitled to obtain a copy of the application for the surveillance device warrant that the defendant filed in this Court on 16 December 2009. The defendant referred to is, as I understand it, the first defendant, Mr Michael Riashi, who was, at the relevant time, employed by the ICAC as an investigator. The second defendant to the summons is the ICAC. On this application the plaintiff has appeared for himself. The second defendant appears represented by Mr Bhasin of counsel.
The first matter to be observed is that the summons is listed before this Court for hearing on 31 March of this year. That is some nine days from today. By his motion the plaintiff seeks the leave of this Court…

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 277
Case: [2023] NSWSC 277
Decision Date: 22 March 2023

CaseChat Overview and Summary

The matter before the court involved a self-represented plaintiff, Gamage, seeking leave to issue subpoenas as part of an ongoing civil litigation. The defendant, Riashi, opposed the application. The dispute arose in the context of an investigation by the Independent Commission Against Corruption (ICAC). The plaintiff's request was made after a surveillance warrant had already been issued in relation to the same subject matter. The relief sought by the plaintiff was essentially the same as that which was the subject of the substantive proceeding, raising questions about the necessity and legitimacy of the plaintiff's application.

The central legal issues before the court were whether the plaintiff's application for subpoenas was an abuse of process and whether it was an illegitimate collateral attack on the surveillance warrant issued by ICAC. The court had to determine if the plaintiff's application was for a legitimate forensic purpose, distinct from the investigation conducted by ICAC, and whether the plaintiff's conduct could be seen as an attempt to circumvent the surveillance process.

The court held that the plaintiff's application was an abuse of process and constituted an illegitimate collateral attack on the surveillance warrant. It was found that the plaintiff's request for subpoenas was essentially duplicative of the relief sought in the substantive proceeding and did not serve a legitimate forensic purpose. The court emphasised the need for parties to follow the proper legal processes and not to circumvent the surveillance process through collateral applications. Consequently, the court dismissed the plaintiff's application for leave to issue subpoenas.

The court ordered that the application be dismissed and that costs be awarded to the defendant. This decision reinforces the importance of adhering to legal processes and the prohibition against making collateral attacks on surveillance warrants issued in the course of an ongoing investigation.

Orders