Obeid v Lockley

[2017] NSWCA 213

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Obeid v Lockley [2017] NSWCA 213
Hearing dates:	22 August 2017
Decision date:	22 August 2017
Before:	Leeming JA
Decision:	Notice of motion filed 18 August 2017 dismissed with costs.
Catchwords:	PRACTICE – application to vacate hearing of appeal – fresh evidence – where fresh evidence not yet available – where fresh evidence may not be dispositive of appeal – where substantial parts of appeal independent of fresh evidence – application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Felons (Civil Proceedings) Act 1981 (NSW) Independent Commission Against Corruption Act 1988 (NSW), s 40
Cases Cited:	Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Category:	Procedural and other rulings
Parties:	Edward Moses Obeid, Snr (First Applicant) Moses Edward Obeid (Second Applicant) Paul Edward Obeid (Third Applicant) Edward Joseph Obeid, Jnr (Fourth Applicant) Grant Lockley (First Respondent) Paul Anthony Grainger (Second Respondent)
Representation:	Counsel: G Reynolds SC (Applicants) P Braham SC, R Scruby (First Respondent) S Patterson (Second Respondent)   Solicitors: Deutsch Partners (Applicants) Henry William Lawyers (First Respondent) Crown Solicitor’s Office (Second Respondent)
File Number(s):	2016/317346
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2016] NSWSC 1376 Date of Decision: 27 September 2016 Before: Hammerschlag J File Number(s): 2015/201089

EX TEMPORE Judgment

1. LEEMING JA: This is an application to vacate an appeal which is set down for hearing on 4 September 2017, which is Monday week, with an estimate of two days. The appellants are Messrs Edward Moses Obeid, Snr, Moses Edward Obeid, Paul Edward Obeid and Edward Joseph Obeid, Jnr.

2. There may be a question whether the first appellant requires leave, pursuant to the Felons (Civil Proceedings) Act 1981 (NSW), to bring this appeal which was commenced on 23 December 2016, but that is not in issue before me today. Subject to that question and the large matter raised by the appellants’ notice of motion, the appeal books and parties’ submissions have been filed and I have been told that the appeal is otherwise ready to be heard.

3. The appeal is narrower than the proceedings at first instance, Edward Moses Obeid Snr v David Andrew Ipp [2016] NSWSC 1376. No appeal is now brought from the dismissal of claims brought against ICAC, the Commissioner, counsel assisting and the State. The appeal is confined to claims against Mr Grant Lockley and Mr Paul Grainger, who were involved most relevantly in the execution of a search warrant issued under s 40 of the Independent Commission Against Corruption Act 1988 (NSW) at premises in Drummoyne occupied by an Obeid family company.

4. It is not necessary for present purposes to describe with precision the conduct of those officers during the execution of that warrant. It is said by way of summary that the primary Judge erred in rejecting the claim that each of Mr Lockley and Mr Grainger committed the tort of misfeasance in public office, insofar as those two men were involved in the videoing of two documents.

5. The first document was an advice from the Solicitor General concerning compliance with government guidelines for privately financed projects with respect to a proposal by Australian Water Holdings Pty Ltd.

6. The second was a document entitled, “Heads of Agreement Australian Water”. The latter document, or a copy of it, may now be found in the report from ICAC published earlier this month to which I refer below which has given rise to this application.

7. The trial before the primary Judge was confined to liability. The precise terms of the order for separate determination are not before me and it is unclear on the material available to me how the order came about. One consequence of such an order, no different from any order for separate determination, is the possibility of interlocutory appeals and multiple hearings.

8. Argument before me today has proceeded on the basis that it is common ground that the effect of the order was that the plaintiffs needed to establish some loss, damage being of the gist of the tortious causes of action they had brought, but that otherwise damages would be the subject of a separate hearing if and to the extent that any of them succeeded on liability. The primary Judge appears to have proceeded on that basis: see [231].

9. I pass over the fact, of which nothing has been made by either side in the application today, that the claim advanced by Mr Edward Obeid Jnr was dismissed summarily at [11]. The primary judge addressed the claims brought against Messrs Lockley and Grainger at [298]-[358].

10. His Honour found that the videoing of the two documents to which I have referred was not authorised by the warrant: at [315]-[319], and that both men knew that they were acting in excess of power: at [325]-[336]. However, his Honour found that three elements of the tort on which the plaintiffs had sued were missing. As stated in the appellants’ written submissions, those elements were:

“(a) In executing the warrant, Lockley and Grainger were not acting in the course of the public office: at [306]-[310];

(b) Lockley and Grainger were not reckless as to whether the appellants would suffer doing from the unlawful acts, nor was such damage foreseeable: at [337]-[338];

(c) The appellants had not established that Lockley and Grainger’s unlawful acts had caused damage: at [340]-[357].”

11. Grounds 1(a)-(e) of the amended notice of appeal challenge the findings that those two men were not public officers. The submissions in support of those grounds are the single largest topic in the appellants’ written submissions filed in support of their appeal.

12. Ground 1(f) challenges the findings that the men were not reckless as to whether the appellants would suffer foreseeable damage.

13. Ground 1(g) challenges the finding that the unlawful conduct did not cause any damage.

14. For their part, Messrs Lockley and Grainger have filed notices of contention which challenge certain findings of the primary judge which were favourable to the appellants. It is not necessary to identify all aspects of those challenges. By way of example, however, Mr Lockley contends that the primary judge was wrong to find that (a) his conduct had any causal effect; (b) his conduct involved the exercise of a power; (c) that he knew that he was acting in excess of power; and (d) the two documents videoed during the execution of the warrant did not fall within its scope. Mr Grainger’s notice of contention includes similar points, and likewise extends beyond those points.

15. The reason for my identifying the issues which arise on the appeal is this. The appeal will be dismissed unless the appellants succeed on each of the three challenges in their appeal. The appeal will also be dismissed if any substantial aspect of the respondents' notices of contention is upheld (so far as I can see, there are also aspects within the notices of contention which will not of themselves be dispositive of the appeal). Conversely, the appeal will be allowed, and there will be a hearing as to damages, if the appellants succeed on each of the three challenges summarised above, and also succeed in rebutting the substance of the notices of contention.

16. The basis of the notice of motion is that on 3 August 2017, ICAC's report “Investigation into dealings between Australian Water Holdings Pty Ltd and Sydney Water Corporation and related matters”, was provided to the presiding officers of both chambers of the New South Wales Parliament, and later published. The report refers to both documents which were videoed on the execution of the warrant. In particular, and it is convenient to rely upon the summary provided in the appellants’ solicitor’s supporting affidavit:

“1. The seized documents are discussed in ch 15, and are the basis for adverse credit findings regarding Edward Obeid Jnr and Moses Obeid. Mr Paul Obeid's evidence in relation to them is described as ‘clearly wrong’.

2. The report refers to the media interest in the heads of agreement and the cross examination of Moses Obeid regarding it, at p 64, and describes that publicity as the ‘catalyst’ for the events that followed.

3. The report describes the issues raised by the heads of agreement as “central to its inquiry: p 69.”

17. It was put orally that the heads of agreement document was the “genesis” of the adverse findings to which I have referred.

18. It is submitted in support of this motion that the appellants have each suffered further damage to their reputations by reason of the publication earlier this month of ICAC’s report. They wish to adduce on appeal fresh evidence, including documentary and affidavit evidence. It is said that there are five potential witnesses, with one of whom there has been a communication. What was said, or written, in that communication is not disclosed in the evidence before me. Who the witnesses (or potential witnesses) are is likewise not disclosed. What they will say, or what they might answer if asked non‑leading questions, is not disclosed. It is said without elaboration that it will take at least two weeks to obtain this evidence. There is also a suggestion (on a fair reading of the material it is put merely as a possibility) of one or more subpoenas being issued by the appellants to obtain documentary evidence not otherwise available to them.

19. The point was fairly made that the description of testimonial documentary evidence described in the supporting affidavit comes close to reflecting as large as possible a gathering of material supporting the underlying claim that the publication earlier this month of ICAC's report caused reputational damage to each of the appellants. It is important to bear in mind the limited nature of the proceeding at first instance, and that questions of quantification of loss have been deferred, and that in issue on appeal is merely whether the primary judge erred in concluding that none of the plaintiffs had adduced evidence of any loss causally connected with the unlawful conduct found by his Honour. I say that because it may well be that, on reflection, the material sought to be adduced in support of that limited issue turns out to be considerably less extensive than has been deposed to by the appellants’ solicitor.

20. As is clear from what has already been said, there are a number of ways in which this appeal may be resolved without regard to the proposed fresh evidence. The appellants may fail in relation to their challenges to the judge's conclusions concerning public officer. They may also fail in relation to the points identified above in relation to the notices of contention. Alternatively, they may succeed on all issues in their appeal, including that the primary judge was wrong to say that they had not adduced evidence of any damage. The publicity given by the media to ICAC’s investigation and hearings was relied on at trial, and is not dissimilar from at least some of the evidence now sought to be adduced, although it concerned ICAC’s investigation, rather than its report.

21. Another way of putting that is to say that only if ground 1(g) of the amended notice of appeal is dispositive – that is the ground that challenges the finding that no damage had been caused to any of the appellants – will the proposed evidence be relevant to the ultimate disposition of the appeal.

22. These considerations give rise to two somewhat unusual aspects to the application before me today. The first is that, damage being the gist of the causes of action advanced by the plaintiffs, it is only if the only way that the appellants succeed on appeal is by reference to the fresh evidence – being evidence which was not before the primary judge – that the application will be dispositive of the appeal. But if that is true, then the appellants will have gone to trial without a completed cause of action, and they will be asking this Court to determine a cause of action which is brought for the first time in it. Although unusual, that is not an insuperable obstacle to the appellants, bearing in mind that this Court hears and determines an appeal by way of rehearing.

23. The second unusual aspect, prominent in the respondents’ submissions opposing the vacation of the hearing date and related to the first, is the proposition, which was contested by the appellants, that it would be necessary in order for them to rely upon the fresh evidence, to once again amend their pleading. I note that there is a challenge already in the notices of contention to a decision by the primary judge to permit an amendment to the pleading. The respondents take the point that to the extent that the appellants wish to rely upon the new evidence, it is outside the scope of the present pleading and requires an amendment, and that it is likely that that amendment will be contested. Against this, the appellants deny that any amendment is required.

24. Those two matters cause me to return to the central matter which is the “real review” of the trial and the judge’s reasons (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25]), to be conducted by this Court, presently listed to take place the week after next. That is, on the cases and evidence as advanced at trial, is there appellable error on the part of the primary judge?

25. Save for one matter, I shall put to one side the difficulties, which I do not regard to be insubstantial, relating to the vagueness and uncertainty of the description of the evidence which is proposed to be adduced. I emphasise I am not being critical. I am conscious that this is the relatively early stages of the evidence gathering process, and the solicitor is understandably concerned not to waive privilege in what has taken place so far, and what may take place in the future. But putting those matters to one side, there seems to me to be evident sense in the course propounded by the respondents to this notice of motion, which is to adjourn it to the hearing of the appeal on 4 September 2017, with the expectation that the Court may hear such parts of the appeal as are unaffected by the application, and, importantly, in light of that, determine how best to proceed with the notice of motion.

26. This Court is required by law to seek to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Civil Procedure Act 2005 (NSW), s 56. Until the filing of the notice of motion on 18 August, the real issues in the proceedings were those identified in the amended notice of appeal and the amended notices of contention and elaborated in the written submissions supplied by the parties in support. It is true that the real issues in the proceedings have expanded more recently. That said, vacating the hearing date at this stage will unquestionably delay the determination of the appeal. Whether or not a vacation of the hearing date would add to the parties’ expense is not clear on the evidence before me, but it is often the case that delay in litigation increases expense.

27. Adjourning the notice of motion to the hearing of the appeal preserves the possibility that the appeal will be resolved – either favourably to the Obeids or unfavourably to the Obeids – without the need to determine the application. Notwithstanding some of the submissions made to me, I do not accept that there is not a significant prospect that this Court will be able to resolve the whole of the appeal without determining the notice of motion. There are a number of practical ways in which that may occur which need not be elaborated here and now.

28. That is not the only factor which supports that outcome to the motion. Prominent in my mind is the consideration that that course permits the parties to use the time that has been allocated to resolve at least some of the issues which divide them. Included in those issues as I have anticipated earlier in these reasons, is a large issue as to whether or not Messrs Lockley and Grainger were public officers so as to engage the tort. That is an issue that, doing the best I can, could foreseeably occupy one day of the hearing of the appeal. It is as I have said the most substantial issue arising on the written submissions, and on my brief reading of them, it is an issue not without public importance.

29. I am also conscious of the fact that there is, as Mr Reynolds persuasively says, a real possibility that it will become necessary to determine the application to adduce fresh evidence and that that in turn will give rise to a further hearing and delay an accompanying cost. There is no way of avoiding that possibility. However, the nature of litigation, in my experience, is that when parties prepare for and engage in the discipline of oral submissions at a hearing, issues which may seem to loom large from a perspective of weeks or months away, become crystallised and sometimes fall away (as I note seems to have occurred during the trial; the primary judge stated at [65] that “Positions, especially that of the plaintiffs (which was significantly narrowed) were refined in final addresses”). I have no reason to doubt that the determination of the application to adduce fresh evidence will be able to be determined more efficiently in light of what has occurred during the balance of the hearing. Indeed, as anticipated earlier, it may well be that any fresh evidence which is sought to be adduced will be more focused than it would otherwise be.

30. I return to the matter that was the subject of my earlier qualification, which is as to the vagueness and uncertainty of the description of the evidence proposed to be adduced. Again, without making any criticism of the evidence in support of this application, the lack of detail does make it difficult with any confidence to determine the likely nature and content of the application to adduce fresh evidence which is contemplated. It also makes it difficult to estimate when, if the appeal were vacated, it would be ready to proceed. That so far as I can see, however, is a matter which points in favour of the course I have outlined above, of deferring the application at this stage, rather than vacating the hearing.

31. It is worth noting that, as Mr Braham of senior counsel observed during the hearing, the course that I propose does not stand in the way of the Obeids, closer to the hearing of the appeal, adducing further evidence – either by way of the actual fresh evidence sought to be adduced, or by way of a fuller explanation on the part of the appellants’ solicitors as to what they have done and expect to be able to do. Although those matters will in part distract from the preparation of the hearing of the appeal, they will serve to streamline the determination of the application to adduce further evidence. I have not overlooked Mr Reynolds’ submission that preparation of such fresh evidence will be distracting to the preparation of the appeal. The distraction at least in the first instance will principally be to the appellants, but it is something that may affect all parties. Against that however, I am conscious that there are still some 13 days between now and the hearing of the appeal and, especially, the fact that counsel who are retained to address the appeal have already prepared, filed and served careful submissions both in chief and in reply on the issues which presently arise.

32. [Discussion as to orders.]

33. Senior Counsel for both appellants and respondents have confirmed that orders 2 and 3 of the notice of motion filed 18 August 2017 are essentially consequential upon the primary order sought which was that the appeal presently fixed to commence on 4 September 2017 be vacated.

34. It follows that the order to be made today is that the notice of motion filed 18 August 2017 be dismissed.

35. That order is without prejudice to the appellants’ right to apply by motion returnable before the Court of Appeal on 4 September 2017 to adduce fresh evidence and for the whole or the part of the appeal listed to be heard on that date to be adjourned.

17. Nothing that I can do today can prevent the applicants from filing such a motion. However, it will be obvious from what I have already said that irrespective of the outcome of any application to adduce fresh evidence, my present expectation is that there are important and significant issues arising on the appeal as presently formulated which are wholly independent of any application for fresh evidence, and there is no reason why, at least to that extent, the appeal should not be heard substantively on that day.

18. [Discussion as to costs.]

19. The respondents apply for the costs of today. That is opposed. Mr Reynolds says, and I do not doubt, that there is every chance that there will be a further application along the lines contemplated to adduce further evidence at the commencement of the appeal. He submits that today’s costs should be reserved.

20. In my view the successful respondents today should have their costs. The issue today was whether the hearing should be vacated. I am against the applicants on that issue.

21. Most importantly, yesterday afternoon the respondents indicated in substance the course to which I have acceded to today; namely, that:

“the most practical and efficient course for the Court to adopt is to hear the appeal on the dates appointed, together with any application by the appellants in relation to further evidence, and to determine the application concerning further evidence (if necessary in light of the outcome of the appeal on the other issues)”.

41. Had that course been acceded to, the hearing before me today would have been unnecessary.

42. Accordingly, I order that the notice of motion filed 18 August 2017 be dismissed with costs.

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Amendments

01 September 2017 - File number corrected.

24 August 2017 - Case title corrected.

Decision last updated: 01 September 2017