Joukhador v Commissioner of Police

[2020] NSWSC 227

Supreme Court

New South Wales

Medium Neutral Citation:	Joukhador v Commissioner of Police [2020] NSWSC 227
Hearing dates:	4 March 2020Written Submissions dated 6 March 2020, 10 March 2020, 11 March 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   The Plaintiff’s summons be dismissed.  (2)   The Plaintiff pay the Defendant’s costs of the proceedings.
Catchwords:	SEARCH WARRANTS – BAIL CONDITIONS – material provided as a condition of bail – deposited with Court pursuant to Court order – Court grants Commissioner of Police access to conduct investigation – material included electronic data that was copied – criminal proceedings terminated – whether order granting access ceases – inherent power of Court – asserted possessory title to “information” – whether information property – status of electronic data – whether can be returned under Law Enforcement (Powers and Responsibilities) Act 2002 – proceedings dismissed
Legislation Cited:	Bail Act 2013 Copyright Act 1968 (Cth) Crimes Act 1900 Indecent Articles and Classified Publications Act 1975 Law Enforcement (Powers and Responsibilities) Act 2002 State Records Act 1988 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005, r 33.13
Cases Cited:	Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Breen v Williams (1995-1996) 186 CLR 71; [1996] HCA 57 Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 Crest Homes PLC v Marks [1987] AC 829 Esso Australia Resources Limited v Plowman (1994‑1995) 183 CLR 10; [1995] HCA 19 Fantakis v Commissioner of Police [2013] NSWSC 685 Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525; [1943] HCA 50 Ferguson v Eakin (Court of Appeal (NSW), 27 August 1997, unrep) Gatward v Alley (1940) 40 SR (NSW) 174 Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59 Hamilton v Naviede [1995] 2 AC 75 Harman v Secretary of State for Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566; [2006] NSWSC 158 Joukhador as the Principal Solicitor of Thomas Booler Lawyers v New South Wales Commissioner of Police [2017] NSWSC 1287 Joukhador v Commissioner of Police [2018] NSWSC 872 JT International SA v The Commonwealth (2012) 250 CLR 1; [2012] HCA 43 Kable v State of New South Wales (2013) 252 CLR 118; [2013] HCA 26 Kimberley Mineral Holdings Ltd v McEwan [1980] 1 NSWLR 210 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 McQueen v Hawi [2008] NSWSC 136 Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Parsons v The Queen (1999) 195 CLR 619; [1999] HCA 1 R v Elomar and Ors [No 11] [2009] NSWSC 385 R v Joukhador [2019] NSWSC 112 Russell v Wilson (1923) 33 CLR 538; [1923] HCA 60 Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209 Telstra Corporation v Commonwealth (2008) 234 CLR 210; [2008] HCA 7 Yanner v Eaton (1991) 201 CLR 351; [1999] HCA 69
Category:	Principal judgment
Parties:	Marcel Joukhador (Plaintiff) Commissioner of Police (Defendant)
Representation:	Counsel: AL Tokley SC; M Rennie (Plaintiff) JS Emmett (Defendant)   Solicitors: Harrow Legal (Plaintiff) Norton Rose Fulbright (Defendant)
File Number(s):	2019/362268

Judgment

1. By a summons filed on 18 November 2019 the plaintiff, Marcel Joukhador, seeks the delivery up by the defendant, the Commissioner of Police (the “Commissioner”), of all material that was procured as a consequence of a variation to his bail conditions on or about 30 November 2017. The nature of that material and the circumstances in which it was deposited with the Court and procured by the Commissioner are explained below. In summary, Mr Joukhador contends that, as the criminal proceedings that were on foot against him and which resulted in him being on bail have now terminated in his favour, the material should be returned. For the reasons that follow, I reject that contention and will dismiss the summons.

Background

2. Mr Joukhador is a legal practitioner. He is a sole practitioner. He practices under the name Thomas Booler Lawyers (“TBL”) at an address in Auburn. At least one part of his practice is pursuing claims on behalf of persons who were injured in motor vehicle accidents.

3. On 5 April 2017, two warrants issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (the “April 2017 warrants” and “LEPRA” respectively) were executed at the Auburn office. The warrants authorised the seizure of a vast number of documents including hard copy documents related to a particular “Schedule of claims” which was attached to the warrant. The Schedule listed 180 clients of TBL. It also authorised the seizure of “electronic storage devices including computers, hard drives [and] flash drives” containing electronic diaries and documents relating to the Schedule of claims. [1] The warrant recited that the applicant for the warrant “has reasonable grounds for believing” that the items sought were connected with a searchable offence, namely, an offence under s 192E of the Crimes Act 1900 being “fraud”.

   1. Court Book (“CB”) at 89.

4. The material seized during the execution of the warrants included hard copy documents, electronic devices and data downloaded from the “LEAP legal practice management system” used by TBL. According to Detective Senior Constable (“DSC”) Edwards, who was present during the execution of the warrants, the data was downloaded from the LEAP database via the “LEAP user interface”. DSC Edwards explained that a “function to export relevant data in bulk was either not available or not known to the NSW Police staff attempting to export the data”. Thus, in the time available only a selection of relevant documents was seized. [2]

   2. Affidavit of DSC Edwards sworn 4 December 2019 at [16]; “Edwards Affidavit”

5. On 9 May 2017, a further warrant was executed at the premises of a rehabilitation centre known as the “Physio Rehab Centre”. One aspect of the allegations of fraud against Mr Joukhador was that fees charged to his clients were inflated by invoices provided by that centre. He denies that and all other allegations of fraud.

6. On 19 May 2017, Mr Joukhador commenced proceedings in this Court seeking declaratory relief upholding legal professional privilege in respect of the material that was seized (Joukhador as the Principal Solicitor of Thomas Booler Lawyers v New South Wales Commissioner of Police [2017] NSWSC 1287 at [12]; “Joukhador (No 1)”). The summons was later amended so that it sought relief under s 69 of the Supreme Court Act 1970 quashing the warrants (Joukhador (No 1) at [14]).

7. On 18 September 2017, I ordered that, pursuant to r 33.13(c)(ii) of the Uniform Civil Procedure Rules 2005 (“UCPR”) and subject to any claims for public interest immunity, a Registrar of this Court make available to Mr Joukhador material received by this Court from the Local Court in relation to the issue of the warrant (Joukhador (No 1) at [45]).

8. On 20 September 2017, Mr Joukhador was arrested and charged with one count of knowingly directing the activities of a criminal group contrary to s 93TG(4A) of the Crimes Act and eleven counts of dishonestly obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act. [3] According to DSC Edwards, those charges concerned alleged conduct involving or connected with the Physio Rehab Centre. [4]

   3. Joukhador Affidavit at [13].

   4. Edwards Affidavit at [17].

9. On 21 September 2017, Mr Joukhador was refused bail in the Local Court. One of the bail concerns identified by the Presiding Magistrate was the risk of “tampering with evidence, interfering with evidence” [5] (Bail Act2013, s 17(2)). A further bail application was made and granted on 26 September 2017. One of the bail conditions imposed was that Mr Joukhador “not … attend the premises of [TBL] or … access directly or through a third party the LEAP system or any other record system of that firm, whether in digital or hardcopy from except his personal email”. [6]

   5. CB at 196.47.

   6. Edwards Affidavit annexure "F" at 57; CB at 218.

10. On 3 October 2017, Mr Joukhador’s bail conditions were varied so as to preclude him from “access[ing] directly or through a third party the LEAP system or any other record system of that firm, whether in digital or hardcopy form except his personal email or to sign documents transferring and authorising alternative signatories on the firm’s trust account”, and precluding him from attending TBL’s business premises for any reason.

11. On 16 October 2017, McCallum J heard Mr Joukhador’s application to quash the April 2017 warrants. Her Honour reserved judgment.

12. At some point prior to 23 November 2017, Mr Joukhador applied to this Court to vary his bail conditions. The written submissions lodged in support of that application identified the purpose of the variation as being to allow him to prepare his defence and “maintain his practice”. [7] To that end the submissions proposed, inter alia, a variation of the bail conditions to allow him to access the “LEAP system” with the police obtaining a “current download of the data on the system”. [8] The officer in charge of the investigation, DSC Opdam, submitted a letter to the Court opposing the application on the basis that there was a “[r]isk to documentary evidence”. [9] He stated the “investigation into Joukhador and [TBL] extends beyond the current charges related to Physio Rehab Centre, and involves a number of other suspects”. [10]

    7. CB at 119.3.

    8. CB at 41.8.

    9. CB at 125.

    10. CB at 125.4.

13. The variation application was heard by Fullerton J on 29 November 2017. The Crown’s legal representative submitted as follows: [11]

“Since April the police investigation has developed to a stage where the police would like to return to the legal practice with a warrant to have a look at aspects of the electronic LEAP system that they weren't able to access during the original search back in April of last year and to look at other physical files that might be of interest now they have started their investigation and widened their scope.

The difficulty the police have, they can't determine the full extent of what they may want to go and look at until they are granted access to material currently under embargo because they have not had any opportunity to look at that in any detail

To put it bluntly, their major concern is if they don't get there first somebody else will and there's the possibility that evidence will be interfered with.” (emphasis added)

11. CB at 226 to 227.

14. The reference to the “material currently under embargo” was to the material seized under the April 2017 warrants which were the subject of the challenge before McCallum J in respect of which judgment was reserved.

15. During the course of the hearing on 29 November 2017, Fullerton J suggested the parties adopt a middle course and that a “ghost copy [of the LEAP records be] kept in effect”. [12] The following day, the parties produced proposed bail conditions to reflect that suggestion. Her Honour imposed the conditions. They relevantly provided that Mr Joukhador was:

“9.(a)   Not to access directly or through any third party the Leap System or any other record system of the firm [TBL], whether in digital or hard copy form (except the applicant's personal email or to sign documents transferring and authorising alternative signatories on the firm's trust account), until the NSW Police have had a reasonable opportunity with the assistance of and supervision of Maatouk's Law Group and representatives of Leap Legal Software, to copy the Leap system or any other record system of [TBL] or Arslan & Associates,

The applicant will provide any consent or authorisation in writing to the NSW Police as necessary to permit and facilitate their access to the LEAP or other record keeping system for the purpose of copying the records as outlined above.

Any copied material is to be contained in a clearly marked archive box(es) deposited with the NSW Supreme Court and not to be accessed until further order of the Court. The applicant or his lawyers is to be notified once the material is deposited with the Court

(b)    Not to attend the premises of [TBL] for any reason until condition 9(a) above is complied with by agreement between the applicant, his legal representatives and the NSW Police.” (emphasis added)

12. CB at 230.49.

16. On 30 November 2017, the parties agreed that, in respect of so much of the material that was caught by [9(a)] of the above that concerned hard copy client files where the relevant matter was closed, then the original of the files would be removed from TBL’s office and deposited with the Court, rather than the files being photocopied. [13] To that end, on 15 December 2017, three archive boxes of hard copy files were deposited with the Supreme Court, comprising fifteen original client files and one photocopied file [14] (the “Deposited Hard Copy Files”).

    13. Edwards Affidavit, "J" being DSC Opdam statement 18 December 2017 at [4].

    14. Edwards Affidavit at [23] to [24].

17. On 22 December 2017, DSC Opdam received two computer hard drives prepared by LEAP Legal Software Pty Ltd (“LEAP”), containing TBL's electronic records on the LEAP system. [15] He deposited those hard drives in an archive box with the Supreme Court (the “Deposited Hard Drives”). The cost of the preparation of the hard drives was borne by the NSW Police Force. [16]

    15. Edwards Affidavit at [26].

    16. Edwards Affidavit at [39].

18. On 12 June 2018, McCallum J delivered judgment upholding the validity of, inter alia, the April 2017 warrants (Joukhador v Commissioner of Police [2018] NSWSC 872).

19. On 20 December 2018, the Commissioner filed a notice of motion in the matter of Rv Joukhador, being the bail proceedings that had previously been before Fullerton J, seeking access to the Deposited Hard Copy Files and the Deposited Hard Drives.

20. On 18 February 2019, the Commissioner’s notice of motion came before Davies J. An affidavit from DSC Edwards was read. In that affidavit, DSC Edwards stated that access was being sought to the Deposited Hard Copy Files and the Deposited Hard Drives because, as explained above, that material could not be obtained during the execution of the search warrant and since the time of the execution of the warrant “the investigation has identified numerous additional claims of interest which were not listed in the warrants”. [17] Before Davies J, counsel for the Commissioner explained that the application was made to invoke the capacity for “further order” as an alternative to the execution of a search warrant on the Court registry.

    17. CB at 181.2.

21. On 18 February 2019, Davies J granted the Commissioner’s application (R v Joukhador [2019] NSWSC 112). His Honour noted that it would have been open to police to obtain a further search warrant to access the material that they did not access during the execution of the April 2017 warrants (at [8]). His Honour also observed (at [13]):

“As noted earlier, if a further search warrant had been issued before the bail application issue was raised, I can see no basis upon which the police would not have been entitled to examine the hard drive and the material that they now seek. What Fullerton J did was designed to preserve the status quo in a way that would prevent that material being interfered with, but which would nevertheless enable both the defendant and the police to inspect the material each for the purpose that they desired to do so.”

22. His Honour made the following orders:

“Upon the undertaking of the Commissioner of Police and Detective Senior Constable Daniel Opdam in accordance with the Schedule hereto (which the Court accepts), the Court orders:

1.   The Commissioner of Police (by his solicitors, Norton Rose Fulbright Australia) may inspect and make copies of the material deposited with the Court pursuant to Condition 9 of the bail granted to the defendant (Marcel Joukhador) by the Court (per the Honourable Justice Fullerton) on 30 November 2017.

2.   The said copies may be inspected, copied and used by the police in the proper discharge of their duties, including (without limitation) by making them available to the Director of Public Prosecutions for the purposes of conducting any prosecution.

3.   Subject to Orders 1 and 2, until further order there shall be no access to the said deposited material.

SCHEDULE

The Commissioner of Police and Detective Senior Constable Daniel Opdam undertake:

A.   Neither they nor their agents shall make any inspection or copy pursuant to Order 1 until five days after they have notified Maddens Lawyers (incorporated in Harrow Legal, successor to the practice of Thomas Booler Lawyers) of the making of these Orders.

B.   Detective Senior Constable Daniel Opdam shall not himself make any inspection or copy pursuant to Order 1.

C.   No police officer who is a member of the police task force investigating Marcel Joukhador and other persons in respect of suspected or alleged fraud in connexion with the firm [TBL] (including Detective Senior Constable Daniel Opdam) shall make any copy, inspection or use pursuant to Order 2 until after the material to be copied, inspected or used has been reviewed by an independent person and found not to be subject to legal professional privilege.

D.   Any such independent person shall be instructed to secure any material that he or she considers to be subject to legal professional privilege so that it cannot be inspected, copied or used pursuant to Order 2.” (emphasis added)

23. It is evident from the emphasised portions of order 2 that Davies J granted the Commissioner access to the Deposited Hard Copy Files and Deposited Hard Drives for purposes beyond the investigation of the charges that were then outstanding against Mr Joukhador.

24. On 2 May 2019, the Commissioner's lawyers, Norton Rose Fulbright (“NRF”), accessed and copied the contents of the Deposited Hard Drives onto a single hard drive[18] (the “Copy of the Deposited Hard Drives”). Between 8 May 2019 and 24 May 2019, the Deposited Hard Copy Files were scanned by NRF (the “Scanned Documents”). At the hearing of these proceedings the Court was advised that Deposited Hard Drives and Deposited Hard Copy Files remain with the Court.

    18. Edwards Affidavit at [32].

25. On 25 July 2019, a solicitor from the Office of the NSW Director of Public Prosecutions (“NSW DPP”) wrote to Mr Joukhador’s solicitor stating that the NSW DPP had “directed that there … be no further proceedings in respect of all the charges in this matter”.

26. Since May 2019, a team of solicitors employed by NRF has been reviewing the Scanned Documents and the material on the Copy of the Deposited Hard Drive to ascertain whether it is the subject of a proper claim for legal professional privilege. In respect of material that is determined not to be privileged or in respect of which privilege is waived by the client, it has been provided to the police who are conducting the investigation. In her affidavit, DSC Edwards describes these solicitors as persons who “have not been involved in the criminal investigation or the related litigation”. Although it is not clear, it appears that Mr Joukhador does not accept that they answer the description of “independent” as referred to in the undertaking in the Schedule to the orders made by Davies J noted above (at [22]). It is not necessary to resolve that contention as, other than the submissions noted in [78], it was not part of Mr Joukhador’s claims in these proceedings. It suffices to state that any debate on that topic can be agitated by invoking that part of his Honour’s orders which allows for “further order”.

27. Instead, from the time the NSW DPP advised him that there would be no further proceedings in respect of the charges on the indictment, Mr Joukhador has been agitating for the return of the Deposited Hard Copy Files and Deposited Hard Drives and all copies thereof on the basis that the permission granted by Davies J’s orders lapsed when the charges against him were dropped.

The Police Investigation

28. In her affidavit, DSC Edwards described the state of the police investigation, including the review of the Deposited Hard Copy Files and the Deposited Hard Drives. DSC Edwards stated that the review of the material for privileged material by the NRF solicitors referred to in [26] was paused on three occasions when Mr Joukhador indicated that proceedings would be commenced to recover the material, but that did not occur. She stated that the review process was also suspended when the Commissioner was served with the summons in this matter on 25 November 2019. DSC Edwards stated the other investigating police officers also ceased their review of the material they had received from those solicitors on that day.

29. In her affidavit, DSC Edwards recounted her understanding of the possible criminality that may be revealed by a review of that material, which it is not necessary to elaborate upon. DSC Edwards also stated that of the sixteen hardcopy files that were deposited with the Court (ie, the Deposited Hard Copy Files), the relevant client had either waived privilege, made a complaint to the Office of the Legal Services Commission or “there were other reasons to suspect the claimant was a victim of fraud in connection with their claim”. DSC Edwards stated that at some point it is anticipated that it may be necessary to forensically examine the Deposited Hard Copy Files.

30. It is evident, and in fact not disputed, that the police investigation into Mr Joukhador is ongoing. Senior Counsel for Mr Joukhador, Mr Tokley SC, submitted that it should be inferred that to this point no referral of any possible prosecution to the NSW DPP had been made. I accept that contention and draw that inference.

The “Bail Material”

31. Prayer 1 of the originating summons seeks the return to the plaintiff of “[a]ll material surrendered to NSW Police and to the Court” pursuant to the bail conditions variation imposed by Fullerton J on 30 November 2017. It follows from the above that the material is the Deposited Hard Copy Files and the Deposited Hard Drives, all of which are presently in the possession of the Court. Prayer 2 sought such further or other order as the Court sees fit. Mr Joukhador’s written submissions in chief identified the relief sought as extending to the Scanned Documents and to the Copy of the Deposited Hard Drives.

32. At this point, it is appropriate to note that ownership of the Deposited Hard Copy Files is vested in the plaintiff or the relevant client or both. Ownership of the chattels being the Deposited Hard Drives and the Copy of the Deposited Hard Drives is vested in the Commissioner (or the State of NSW) as the person or body who paid for them. There is no evidence as to what electronic device stores the Scanned Documents, but it is likely to be something owned or leased by the Commissioner or the State of NSW, although in the end result it does not matter.

Superior Title to Information

33. Although there were a number of different bases put forward on behalf of Mr Joukhador for making the orders sought, the principal basis emerged in his written submissions in reply and was elaborated upon in Mr Tokley’s oral submissions. It appears to have been raised partly by way of response to the submissions made on behalf of the Commissioner concerning ownership of the relevant chattels, being the hard drives. Mr Tokley’s contention redirected Mr Joukhador’s case to focus on the “information” that was recorded in the electronic storage devices noted above, rather than the items themselves. Mr Tokley’s argument involved two steps. First, it was contended that the orders made by Fullerton J and Davies J were bail conditions and as such, their effect lapsed on the termination of the proceedings against Mr Joukhador. [19] Second, it was contended that until those orders were made the “plaintiff was in the possession of the information and the material on which it was recorded, and that was deposited with this Court … [such that] the plaintiff has a possessory title, and that title is good against all the world except for the true owners of that material”. [20]

    19. T 4/3/20 at 6.46 to 7.10.

    20. T 6.21; see also plaintiff submissions in reply at [39].

Scope and Duration of Orders

34. The first step in Mr Tokley’s primary argument concerns the effect of the orders made by Fullerton J and then Davies J. In considering those orders, it must be noted that these are separate proceedings to the bail proceedings in which those orders were made, that these proceedings are not any form of appeal or review of those orders and that those orders, being orders of a Court of a superior court of record, are valid unless and until set aside even if made in excess of jurisdiction (Kable v State of New South Wales (2013) 252 CLR 118; [2013] HCA 26 at [32] to [33] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and at [56] to [57] per Gageler J). The only issue that arises in relation to those orders at this point is their scope and, specifically, whether they lapsed on the termination of the criminal proceedings against Mr Joukhador.

35. Mr Tokley sought to characterise the orders made by Fullerton J (and Davies J) as a “bail condition”, that is a “condition of bail” as referred to in s 4 of the Bail Act 2013. [21] This contention needs to be placed in context. Under the Bail Act, “bail” means “authority to be at liberty for an offence” (s 7). Bail ceases to have effect if it is revoked or the substantive proceedings to which it relates are concluded and no further such proceedings are pending (s 12). Section 19(1) of the Bail Act obliges a “bail authority”, which includes a court, to refuse bail if it is satisfied on the basis of an assessment of “bail concerns” that there is an “unacceptable risk” of such a concern materialising if the accused person is released from custody. A “bail concern” is a concern that an accused person will fail to appear at court, commit a serious offence, endanger the safety of the victim, individuals or the community or interfere with a witness or evidence (s 17(2); s 19(2)). Section 20(1) provides that if there are no unacceptable risks, the bail authority must grant bail with or without the imposition of bail conditions, release the person without bail or dispense with bail. Section 20A(1) provides that bail conditions are to be imposed only if the bail authority is satisfied that there are identified bail concerns. Section 4 defines a “bail condition” to mean a condition of bail.

    21. T 4/3/2020 at 7.10.

36. Division 3 of Part 3 of the Bail Act deals with the imposition of bail conditions. Whether such conditions can impose obligations on third parties is not entirely clear. Bail conditions imposed under s 25 can impose “conduct requirements”, that is a “requirement that the accused person do or refrain from doing anything” (s 25(1) and (2)). They can also include “enforcement conditions” which are conditions that “require[s] ... the person granted bail to comply, while at liberty on bail, with one or more specified kinds of police directions” that may be given for monitoring or enforcing compliance with bail conditions (s 30(2)). Both of these requirements are clearly directed to the accused person.

37. Section 26 of the Bail Act makes provision for a so‑called security requirement, whereby either the accused person or an “acceptable person” either agree to forfeit an amount in the event of a failure to comply with bail requirements or they lodge cash or securities to secure that outcome. Sections 27(1) and 27(2) provides that “bail conditions” can require one or more “character acknowledgements” be provided by “an acceptable person” pursuant to which they acknowledge that the author is acquainted with the accused person and regards them as likely to comply with their bail conditions. Although these provisions refer to “acceptable persons”, they do not appear to authorise orders directed to such persons, but instead authorise the making of conditions that must be complied with in order for the accused person to be released on bail (s 29).

38. Section 28(1) is more difficult. It provides that a bail condition can “require that suitable arrangements be made for the accommodation of the accused person before he or she is released on bail”. The person or body on whom this obligation is imposed is not specified in the balance of the section. On one view, it simply authorises the specification of a state of affairs that must exist (“suitable accommodation”) before a person is released.

39. Ultimately, it is unnecessary to resolve whether the Bail Act authorises the making of orders that impose obligations on third parties because, even it does, such orders must be “conditions of bail”, that is they must establish conditions that must exist prior to the person’s release on bail or which must be complied with while the accused person is free on bail.

40. At this point it is necessary to note a contention made on behalf of the plaintiff in supplementary submissions filed after the hearing, namely, an assertion that the Deposited Hard Copy Files and Deposited Hard Drives were “deposited by him or at his direction with the Supreme Court as a condition of bail”. [22] This is an incorrect characterisation of Fullerton J’s orders. Leaving aside that part of the orders made by her Honour J on 30 November 2017, which directs what is to occur with the “copied material”, it is correct to describe the balance of the orders made by her Honour as “bail conditions”. They were clearly “conduct requirements” authorised by s 25(1) of the Bail Act, imposed because of a “bail concern” that the plaintiff might interfere with “evidence”. However, that part of the order which directed that the “copied material’ was to be placed in an archive box and deposited with the Court was not a “bail condition”. It did not involve or require Mr Joukhador’s agreement and the depositing of material with the Court did not occur at his direction but at her Honour’s direction. Further, the lodging of that material with the Court was clearly not something upon which Mr Joukhador’s release or remaining free in the community was contingent upon. Any suggestion that, if the Commissioner had failed to comply with that order or direction, that would be a basis to have revoked Mr Joukhador’s release on bail is obviously untenable.

    22. Plaintiff’s supplementary submissions dated 6 March 2020 at [2].

41. What was the source of the power in Fullerton J to make that order? The exercise of powers under the Bail Act by this Court are not proceedings that fall within Schedule 3 to the Supreme Court Act. It follows that in hearing bail proceedings, this Court is invested by s 23 of the Supreme Court Act to exercise “all jurisdiction which may be necessary for the administration of justice in New South Wales” (see s 17(1)). Both that jurisdiction and the so‑called “inherent jurisdiction” or powers that follow from the Court’s status as a superior court of record (see Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [17]) enable it to, inter alia, make orders that are ancillary to the imposition of bail conditions. It is neither necessary nor possible to identify the limits on such orders but suffices to state that it would extend to making orders against the parties to such an application, including the police, as to the manner in which they will deal with property surrendered by an accused person in compliance with a bail condition, including requiring its return.

42. Thus, for example, if a bail condition was imposed requiring an accused person to surrender their passport to the police, the Court could at a later time order its return without having to determine if the accused had any proprietary right to the passport. Orders of that kind would simply be an instance of the Court protecting its own processes from being abused and otherwise preventing the administration of justice coming into disrepute (Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [6] per Gleeson CJ, Gummow, Hayne and Crennan JJ). Such orders are analogous to orders for the delivery up of documents that have been received by a party to civil litigation pursuant to an order for discovery and otherwise providing for the manner in which they will be stored, who may access them and on what terms (see Kimberley Mineral Holdings Ltd v McEwan [1980] 1 NSWLR 210 at 215 to 216).

43. Accordingly, the order made by Fullerton J directing the placement with the Court of the “copied material” was an instance of the Court exercising the authority conferred by s 23 or its inherent or implied powers over property provided by an accused person as a condition of them being given bail. Similarly, the orders made by Davies J were also an instance of the exercise of the same power but in that case granting access to property within the Court’s custody or control (see Hamilton v Naviede [1995] 2 AC 75 at 104). Counsel for the Commissioner, Mr Emmett, resisted any suggestion that the material produced to the Court pursuant to order 9 made by Fullerton J was subject to the “implied undertaking” discussed in Harman v Secretary of State for Home Department [1983] 1 AC 280, namely, an undertaking not to use material obtained in civil proceedings under compulsion and not received into evidence “for any purpose other than that for which it was given” (see Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96] per Hayne, Heydon and Crennan JJ). [23] He contended that it was produced voluntarily as the “price” for obtaining bail, rather than produced under compulsion. It is not necessary to determine that contention. It suffices to state that the orders made by Davies J were at least analogous to those made when parties seek to be relieved from the implied undertaking so as to use the material for the purposes of other proceedings (Crest Homes PLC v Marks [1987] AC 829 at 854; Esso Australia Resources Limited & Ors v Plowman & Ors (1994-1995) 183 CLR 10 at 37; [1995] HCA 19 per Brennan J; Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [31]). Self-evidently, orders of that kind do not lapse on the termination of the proceedings in which the application is made.

    23. T 4/3/2020 at 21.30.

44. As stated, the orders made by Davies J expressly permitted the copies of the deposited material to be used for purposes other than just the then outstanding prosecution of Mr Joukhador. Given that and that those orders did not involve the imposition of bail conditions but instead involved an exercise of the power conferred by s 23 of the Supreme Court Act or the Court’s inherent or implied powers, then it follows that the orders did not lapse on the termination of the prosecution of Mr Joukhador. At present, those orders provide a proper basis for the continued retention of the documents by the Commissioner, including copies, irrespective of whether Mr Joukhador has any form of “title” to the material. Whether any basis has been shown for the exercise of the Court’s power to require their return will be addressed after considering the second step in Mr Joukhador’s argument and the alternative bases put forward for the return of material.

Information as Property

45. It follows that the second step in Mr Tokley’s primary argument does not strictly arise however, for the sake of completeness and as it is relevant to the other bases upon which the return of material was sought, it will be addressed. In contending that his client had a superior “title” to that of the Commissioner, Mr Tokley referred to Russell v Wilson (1923) 33 CLR 538; [1923] HCA 60 (“Russell v Wilson”) and Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59 (“Gollan v Nugent”). In Russell v Wilson, the plaintiff sought the return of cash and securities that were seized from him by the police and used as evidence in his prosecution for using his home to wager on a horse race. It was held that, once the proceedings were terminated, the “power of seizure and retention by the police [was] exhausted” (at 548 per Isaacs and Rich JJ). Their Honours concluded that he was entitled to the return of cash and securities because “he had possession of the property, not as servant or agent of another, but as in his own right subject to any right of the absolute owners to recover it whenever they so desired” (at 546). Their Honours added that “[p]ossession, in the relevant sense, is not merely evidence of absolute title: it confers a title of its own, which is sometimes called a ‘possessory title’” (id).

46. In Gollan v Nugent, it was held that a belief that articles seized, if returned to their true owner, might be used to commit breaches of the Indecent Articles and Classified Publications Act 1975 was not a defence to an action for their recovery (at 43 per Deane, Dawson, Toohey and Gaudron JJ; contra Brennan J). Applying Russell v Wilson, Brennan J noted that lawful possession confers a “possessory title” and a “plaintiff in possession or entitled to possession has a right to recover in tort for disturbance or withholding possession” (at 30). The reasoning of the majority was no different in this respect (at 48).

47. The basis for this possessory title is the status of the property as a chose in possession. As was explained by Jordan CJ in Gatward v Alley (1940) 40 SR (NSW) 174 at 178-180 (“Gatward”):

“A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner

…

[d]e facto possession of a chose in possession is prima facie evidence of ownership, and also of itself creates a legal right to possess which is enforceable against anyone who cannot prove that he has a superior right to possess: any person who interferes with this legal right, without being able to prove a superior right, is therefore a wrongdoer.” (emphasis added)

48. However, this is of no assistance to Mr Joukhador. His contention proceeds upon the misconception that someone can legally possess “information” and thereby acquire a “possessory title” to it. As “information” is not “property” (much less a chose in possession), there can be no title to it and thus no concept of a “possessory title” to information. Hence, in Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525 at 534 to 535; [1943] HCA 50 (“United Aircraft”), Latham CJ stated “[k]nowledge is valuable, but knowledge is neither real nor personal property” and that “[a]uthorities which relate to property in compositions, &c., belong to the law of copyright and have no bearing upon the question whether knowledge or information, as such, is property”. Even if a body of knowledge might be capable of protection from disclosure or misuse via an action in equity for breach of confidence, that does not render the knowledge “property” or in the person’s interest in it a proprietary interest (Breen v Williams (1995-1996) 186 CLR 71 at 90; [1996] HCA 57 per Dawson and Toohey JJ, at 111 per Gaudron and McHugh JJ, 128 to 129 per Gummow J; “Breen”).

49. After the conclusion of the hearing Mr Tokley sought and was granted leave to file supplementary submissions in support of his contention that, at the time of the execution of the April 2017 warrants, his client had a possessory title to information. In the supplementary submissions reference was made to the statement in Telstra Corporation v Commonwealth (2008) 234 CLR 210; [2008] HCA 7 at [44] (“Telstra”) concerning the concept of “property” in s 51(xxxi) of the Constitution to the effect that “property” may be used in different senses in legal discourse with one sense being a “bundle of rights” and another sense being that identified in Yanner v Eaton (1991) 201 CLR 351; [1999] HCA 69 (“Yanner”). Yanner referred to property as not referring to a “thing” but as a “description of a legal relationship with a thing” and the “degree of power that is recognised in law as power permissibly exercised over the thing” (at [17]). The supplementary submission continued:

“The relevant legal relationship here recognised by the parties and the court was the Plaintiff’s control or possession over the material deposited with this Court. In the language of [Telstra and Yanner], the ‘bundle of rights’ or ‘concentration of power’ attached to the information in the records of the legal practice included, control over and access to the information and ownership of the media in which the information is stored, intellectual property in those records and the rights of confidentiality in that information.” (emphasis added)

50. The submission continued by addressing whether the whether computer data (information) is treated as “property” for the purposes of ss 218 and 219 of LEPRA, a matter addressed next.

51. The supplementary submission did not advance the difficulty with the contention that there is some form of “possessory title” to information. Four matters should be noted. First, the only material with within the plaintiff’s control or possession that was deposited with this Court that was “recognised” by the Court or the defendant were the Deposited Hard Copy Files. There was no such recognition with the Deposited Hard Drives as they were copies of the material downloaded from LEAP.

52. Second, even if there was some legal relationship between Mr Joukhador and certain “information” recorded in the Deposited Hard Copy Files and Deposited Hard Drives, that does not mean that the relationship is characterised as “property”. As the passages from United Aircraft and Breen make clear, the fact that a person has some “relationship” to “information” so as to give rise to either a duty to maintain its confidentiality or a capacity to enforce such a duty against another does not make their relationship with the information “property”.

53. Third, insofar as the above submission refers to “intellectual property in those records”, this was the first time in the proceedings that the concept of “intellectual property” in respect of the relevant records was referred to. The relevant form of “intellectual property” is not identified but at most it could only be a reference to copyright. In JT International SA v The Commonwealth (2012) 250 CLR 1; [2012] HCA 43 at [83], Gummow J described copyright in relation to an “artistic work” in the following terms:

“Copyright is ‘personal property’ which is transmissible by assignment as provided in the Copyright Act and by will and by devolution by operation of law [Copyright Act, s196]. Section 31(1)(b) of the Copyright Act specifies that copyright in relation to an artistic work is the exclusive right ‘(i) to reproduce the work in a material form; (ii) to publish the work; (iii) to communicate the work to the public’. The effect of s 13(2) is that exclusive right includes the authorisation of another to do the acts specified in s 31(1)(b).”

54. Copyright protection is also afforded to literary works, dramatic works, musical works and cinematograph films but the rights conferred are not relevantly different. In this case, there was no attempt to establish copyright in any of the written material in the Deposited Hard Copy Files or the data copied on to the Deposited Hard Drives. Otherwise it is not correct to speak of copyright as part of the bundle of rights “attached to the information” as the above submission does. Instead the bundle of rights is that conferred by the Copyright Act1968 (Cth) and the “thing” in respect of which the rights are exercised over is the relevant expression of an idea represented by the relevant work.

55. Fourth and fundamentally, none of this discussion in relation to property advances the proposition that there was any “possessory title” to “information” as contended for. The closest the submission came to identifying any form of “property” is the reference to “copyright” just addressed. In relation to interferences with intangible property of that kind, the authority in this State is that it cannot be converted (Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566; [2006] NSWSC 158; Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209 at [184] per Bergin J). This is so because it has been held that “the subject matter of an action in conversion must be goods or property capable of possession or being subject to a right to possession” and an intangibles are not so capable (Ferguson v Eakin (Court of Appeal (NSW), 27 August 1997, unrep) at 7). Put another way, “copyright” is a chose in action and not a chose in possession and it is only the latter which confers a possessory title (Gatward supra).

Part 17 Division 2 of LEPRA

56. One part of the initial written submissions filed on behalf of Mr Joukhador sought the return of the “bail material” under Part 17 Division 2 of LEPRA which concerns property in police custody, other than confiscated items and dangerous property.

57. Within Part 17 Division 2, ss 216, 218 and 219 of LEPRA relevantly provide:

216 Application to property

(1)   This Division applies to the following property--

(a)   property that is in the custody of a police officer or member of the NSW Police Force in connection with an offence, whether or not proceedings for the offence have been commenced,

(b)   property that is lawfully in the custody of a police officer or member of the NSW Police Force other than in connection with an offence.

(2)   However, this Division does not apply to the following property--

(a)   a dangerous article or dangerous implement to which Division 1 applies,

(a1) a substance to which Part 3A of the Drug Misuse and Trafficking Act 1985 applies or an article disposed of under section 39K of that Act.

218 Return of seized things

(1)   A police officer who, in exercising a function conferred by or under this Act, seizes a thing or has custody of other property to which this Division applies must return the thing to the owner or person who had lawful possession of the thing before it was seized or came into custody if the officer is satisfied that--

(a)   its retention as evidence is not required, and

(b)   it is lawful for the person to have possession of the thing.

(2) This section is subject to any order made under section 219.

219 Disposal of property on application to court

(1)   A court may, on application by any person, make an order that property to which this Division applies--

(a)   be delivered to the person who appears to be lawfully entitled to the property, or

(b)   if that person cannot be ascertained, be dealt with as the court thinks fit.

(2)   In determining an application the court may do any one or more of the following things--

(a)   adjust rights to property as between people who appear to be lawfully entitled to the same property or the same or different parts of property (including adjusting rights by extinguishing, whether in whole or in part, any interests in the property of such persons),

(b)   make a finding or order as to the ownership and delivery of property,

(c)   make a finding or order as to the liability for and payment of expenses incurred in keeping property in police custody,

(d)   order, if the person who is lawfully entitled to the property cannot be ascertained, that the property be forfeited to the Crown,

(e)   make any necessary incidental or ancillary orders.

(3)   …

(4)   …

(5)   …”

58. As will become clear it is potentially significant that s 218 operates on two circumstances, namely, where an officer “seizes a thing” or “has custody of other property to which this Division applies”.

59. Section 3 of LEPRA defines "property" as having the same meaning as it has in the Crimes Act 1900. Section 4 of the Crimes Act defines “property” as follows:

“Property includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise”. (emphasis added)

60. This definition of “property” involves an extension of the traditional forms of property that could be the subject of “larceny” to include choses in action, they being a species of personal property (Parsons v The Queen (1999) 195 CLR 619 at 628; [1999] HCA 1). Nevertheless, subject to the provisions concerning electronic data addressed below, insofar as Mr Joukhador seeks an order in respect of the recovery of “information”, then Part 17 Division 2 of LEPRA is of no assistance to him. Section 219 only enable orders to be made in respect of “property to which this Division” applies, being at the very least “property’ that is “in the custody of” the police or the NSW Police Force (s 216(1)). As information is not “property” it cannot be in their “custody” in the relevant sense. The same applies at least so far as s 218 refers to “other property”.

61. In respect of the chattels, the Deposited Hard Copy Files and the Deposited Hard Drives are not “in the custody” of the police or the NSW Police Force. Instead, they are in the “custody” of the Court to which ss 218 and 219 have no application. The Copy of the Deposited Hard Drives is in the custody of the NSW Police Force (as is presumably the chattel that contains the Scanned Documents) but, as explained above, that chattel is the property of the NSW Police Force so that any orders that might be made under ss 218 and 219 would only require its return to the police as owner.

62. The position is no different to the extent that Mr Joukhador identifies the form of property as intellectual property rights specifically some alleged copyright in some relevant “work”. Neither the actions of the police or the Court’s orders purported to vest or transfer any copyright or other chose in action owned by Mr Joukhador (or anyone else) in some other person. For the purposes of s 218, the chose in action was not a “thing” that was “seized” and nor do the police have “custody’ of it. If there is any such “property” it has always remained with the owner.

63. In his supplementary submissions, Mr Joukhador pointed to various provisions of the Crimes Act and LEPRA as supporting the contention that “information recorded or converted into computer data” falls within the above definition of property. [24] In relation to the Crimes Act, Mr Joukhador relies on the provisions of Part 6 of the Crimes Act which specifies various offences involving computers as support for the proposition that the Crimes Act treats electronic “data” as property. Thus, it was noted that s 308D(1) creates an offence where there is an unauthorised modification of data with intent to cause impairment. This is an alternative verdict for an offence of destroying or damaging property under s 195 (s 308D(2)(a)). However making s 308D(1) an alternative to s 195 is consistent with “data” not being a form of property. A charge under s 195 might fail where the only “damage” or alteration that was proven was to the data and not the chattel that it was stored in. The submissions also noted that under s 308F(2) of the Crimes Act data was “capable of being possessed or controlled”. In fact, s 308F(2) contains an inclusive definition of a person as being in “possession or control of data” if they possess a computer or data storage device that holds or contains the data or they have control of data held in a computer that is in the possession of another person. The definition does not advance the argument that the “information recorded or converted into computer data” falls within the definition of “property”.

    24. Plaintiff’s supplementary submissions at [7].

64. In relation to LEPRA and electronic data, s 49(1) of LEPRA enables a person executing a search warrant issued under Division 2 of Part 5 to, inter alia, “seize and detain a thing (or thing of a kind) mentioned in the warrant”. Section 75B of LEPRA relevantly provides:

“75B Access to and downloading of data from computers (including access to computers outside premises the subject of a warrant)

(1)   The person executing or assisting in the execution of a warrant to which this Division applies may operate equipment at the premises the subject of the warrant to access data (including data held at premises other than the subject premises) if the person believes on reasonable grounds that the data might be data that could be seized under the warrant.

Note: Under section 49, data may be seized under a warrant if connected with an offence. Section 46(3) provides that a thing is connected with an offence if, for example, it will provide evidence of the commission of the offence.

(2)   The person executing or assisting in the execution of the warrant may-

(a)   copy any accessed data to a disk, tape or other data storage device brought to the premises, and

(b)   with the approval of the occupier of the premises, copy any accessed data to a disk, tape or other data storage device already at the premises, and

(c)   take the disk, tape or other data storage device from the premises to examine the accessed data to determine whether it (or any part of it) is data that could be seized under the warrant.

(3)   The person executing or assisting in the execution of the warrant may operate the equipment to put any data that could be seized in documentary form and seize the document so produced.

(4)   The person executing or assisting in the execution of the warrant may seize the equipment and any disk, tape or other data storage device--

(a)   if it is not practicable to exercise the powers referred to in subsection (2) or (3) in relation to the data, or

(b)   if possession by the occupier of the equipment or device could constitute an offence.

(5)   …

(6)   The responsible officer for an authority must arrange for the removal of any data obtained by the exercise of a power referred to in this section by a member of the authority from any device under the control of the authority and the destruction of any other reproduction of the data in the control of the authority if the responsible officer is satisfied that the data is data that could not be seized under the warrant.

(7)   Subsection (6) does not require the destruction of court records.

(8)   …” (emphasis added)

65. This provision does not provide any support for the suggestion that “information recorded or converted into computer data is included” in the definition of property. However, it does provide (considerable) support for the proposition that “data” is a “thing” that can be seized under a warrant. This appears to what is contemplated by s 75B(1). If data was not such a “thing” then that would only beg the question as to what was the authority to obtain electronic data pursuant to the April 2017 warrants in the first place? (see [4]). On this basis, and irrespective whether it amounts to a form of “property”, any such electronic data obtained under a warrant could be “a thing” that was seized by a police officer in exercising a function conferred by or under LEPRA and thus be the subject of an application under s 218(1). In that regard, in determining whether the “thing” could be returned to the “person who had lawful possession of the thing”, then the Crimes Act offences and definitions may be apposite.

66. Given that this aspect of LEPRA only emerged in the supplementary submissions it would be unfair to the Commissioner to express any concluded view on this point. Understandably enough, the Commissioner’s written response was only directed to addressing whether intangible property could be the subject of an application under ss 218 and 219 as that is how Mr Joukhador’s submission was framed. In the end result, even if data obtained during the execution of a warrant issued under LEPRA is a “thing” that can be the subject of an application under s 218, it is of no assistance to Mr Joukhador because, in this case, the relevant data was not “seize[d]” within the meaning of s 218. As explained above, it was obtained pursuant to bail condition that lead to the material being deposited with the Court and the Commissioner was then granted permission by the Court to access it. For the same reason, the Commissioner did not come to have the data by reason of any “exercis[e] [of] a function conferred by or under” LEPRA.

67. Otherwise, had it been possible to make orders under s 218 in his client’s favour, Mr Tokley submitted that s 218(1)(a) would not preclude them being made as no prosecution against Mr Joukhador is pending or even the subject of a referral to the NSW DPP (see [30]). Two matters should be noted about that contention.

68. First, s 218(1) only requires the return of goods if a police officer, and not this Court, are “satisfied” that the two relevant conditions exist, although the formation of that state of satisfaction is amenable to judicial review (Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130] to [146] per Gummow J). There is no evidence that any such state of satisfaction was reached.

69. Second, although it is not necessary to decide, I do not accept that, in forming the state of satisfaction referred to in s 218(1)(a), the absence of a pending prosecution or a referral to the NSW DPP is determinative. In Fantakis v Commissioner of Police [2013] NSWSC 685 at [30], Adamson J described the scope of s 218(1)(a) as being that “[w]here property is seized in the course of execution of a search warrant the police are not entitled to retain it for longer than is reasonably necessary in order to complete investigations or to preserve it for evidence” (citing, inter alia, R v Elomar and Ors[No 11] [2009] NSWSC 385 at [54]-[55] per Whealy J). In this case, the evidence is that a formal process of investigation into possible offences different to those the subject of the NSW DPP’s letter is ongoing. The police are not retaining the material based on some speculative possibility that an offence might turn up (cf McQueen v Hawi [2008] NSWSC 136).

70. It follows that no basis for the return of the material in the custody of the Commissioner or any police officer under Part 17 Division 2 of LEPRA has been established.

UCPR r 33.8

71. Both the summons and Mr Joukhador’s written submissions sought to invoke r 33.8 of the UCPR as a basis for the relief sought. This rule provides:

“The court may give directions in relation to the removal from and return to the court, and the inspection, copying and disposal, of any document or thing that has been produced to the court in response to a subpoena.”

72. It follows from the above that this rule cannot be invoked as none of the bail material was produced to the Court “in response to a subpoena”. That said, I accept that this Court’s inherent and implied powers, as well as under s 23 of the Supreme Court Act, can extend to making directions of the kind referred to in this rule in respect of the bail material and all copies of it.

Should the Court Order the Return of the Material?

73. It follows from the above that the basis for the receipt and retention of the Scanned Documents and the electronic data on the Copy of the Deposited Hard Drives is the authority conferred on the Commissioner by the orders made by Davies J on 18 February 2019. Those orders made provision for “further order” and are otherwise capable of being supplemented or varied by this Court. Even though they were made in different proceedings, if proper cause was shown to make further order or otherwise vary them I would, after advising the parties, call up the proceedings in which they were made and make orders.

74. Counsel for the Commissioner, Mr Emmett, conceded that, in the exercise of its inherent and implied powers, as well as under s 23 of the Supreme Court Act, the Court could order the return of the Deposited Hard Copy Files and Deposited Hard Drives. [25] He also conceded that the Court could make orders in respect of the electronic copies of that material held by the Commissioner even though ownership of the chattels on which they are stored is not vested in either Mr Joukhador or his clients. [26] These concessions were properly made. Orders of that kind are analogous to the orders that might be made in respect of documents produced on discovery or under UCPR r 33.8 in respect of documents produced on subpoena. In making such orders the Court is not giving effect to or vindicating property rights, but is instead controlling its own processes, specifically, the dissemination of documents and data provided to the Court under something at least analogous to compulsion. Although he conceded the Court’s power to do so, Mr Emmett submitted that the Court should (almost) never order a public officer like the Commissioner to delete such material as they would form part of the records of a public entity. [27] It is unnecessary to describe the circumstances in which such an order might occur, but an example that must come close is personal medical records that relate to an investigation that is long since complete and where it was shown that there was a risk of unauthorised dissemination. Otherwise, I note the deletion of records via a Court order is not a breach of s 21(1) of the State Records Act 1988 (s 21(2)(d)).

    25. T 04/03/2020 at 24.5.

    26. T 04/03/2020 at 24.10.

    27. T 04/03/2020 at 24.

73. Mr Emmett also submitted, or at least accepted, that the Court’s powers in respect of the material the subject of Davies J’s orders should be exercised in a manner that is broadly consistent with ss 218 and 219 of LEPRA. [28] I accept that submission in the sense the orders of Davies J make it clear that access was granted for the purpose of conducting an investigation into offences and a continued connection with that purpose sets out the outer limit of the time frame in which they can be retained. Within that limit, the Court expects that the investigation will be conducted with reasonable expedition and that the documents will be afforded a level of protection consistent with the use to which they are being put. Further, as the material obtained concerned the affairs of former clients of TBL, it must be accepted that there is the possibility that the regime may need to be varied to accommodate their interests or to protect claims of legal professional privilege. Otherwise, unlike s 218 of LEPRA, a determination at some subsequent time as to whether the material could no longer be required in evidence is an objective one for the Court to undertake and not one dependent on whether a particular police officer is “satisfied” of the relevant matter.

    28. Defendant’s written submissions at [48].

74. It is unnecessary to consider this further because, at this point, the evidence demonstrates that the investigation contemplated by Davies J’s orders is ongoing and no countervailing reason for accessing the material or seeking its return has been advanced. To the extent that there has been any delay in the review of the material, it appears to have come about from the periodic suspensions of the review of the material by NRF solicitors as to whether there are viable claims for legal professional privilege. As stated, those suspensions were instigated because Mr Joukhador threatened and then initiated these proceedings.

75. Prior to the reformulation of Mr Joukhador’s claims for the return of the material as one based on a possessory title to information, his written submissions (properly) identified the source of the power being exercised to control access to and the return of the bail material (and any copies) as the Court’s inherent and implied powers, as well as s 23 of the Supreme Court Act. [29] In that context, those submissions advanced five reasons why there should not be any further investigation of the bail material.

    29. Plaintiff’s written submissions at [12].

76. The first was the potential for it to affect the legal professional privilege claims of TBL’s clients. [30] However, that topic was addressed in the undertakings proffered to Davies J in support of the orders that were made. The Commissioner has sought to comply with that undertaking but to date Mr Joukhador has not engaged with the invitations made to him to make such claims. I have already referred to the means by which any legitimate dispute about that matter can be addressed.

    30. Plaintiff’s written submissions at [21].

77. Second, it was submitted that Mr Joukhador and his clients should have some certainty about what powers are being exercised in relation to police access and have the ability to access the material via the mechanisms in LEPRA for the return of the material. [31] It follows from the above that LEPRA is not engaged in respect of this material.

    31. Plaintiff’s written submissions at [22].

78. Third, it was submitted that there is a lack of information as what possible offences the NSW Police are investigating. [32] The submissions speculate that the investigation concerns possible breaches of s 192E(1)(b) of the Crimes Act and refer to the possibility that any further charges under that provision would be stayed in light of the NSW DPP’s decision in July 2019 to direct no further proceedings in respect of the charges on the indictment presented against Mr Joukhador. I have summarised DSC Edwards’ evidence concerning the investigation above. Based on her evidence it seems that the investigation includes alleged fraudulent billing practices in respect of disbursements other than those charged by the “Physio Rehab Centre” which were the subject of the original charges against Mr Joukhador.

    32. Plaintiff’s written submissions at [23].

79. Fourth, it was submitted that, even if the investigation is ongoing, the material should be returned leaving the police to execute a warrant and become subject to the statutory restrictions in LEPRA. [33] This is a reprisal of an argument that was rejected by Davies J.

    33. Plaintiff’s written submissions at [24].

80. Fifth, it was submitted that the “balance of factors” considered by Davies J in making the orders has altered since his Honour made them, specifically that the charges against Mr Joukhador have since been dropped. [34] However, as already stated, his Honour contemplated that the charges being investigated would extend beyond those that Mr Joukhador was facing and necessarily contemplated an investigation that would continue if those charges were dropped.

    34. Plaintiff’s written submissions at [25].

Orders

83. Accordingly, the Court orders that:

(1)   The Plaintiff’s summons be dismissed.

(2)   The Plaintiff pay the Defendant’s costs of the proceedings.

**********

Endnotes

Decision last updated: 13 March 2020