Youssef Hadid v Sheriff of New South Wales

[2017] NSWSC 1536

Supreme Court

New South Wales

Medium Neutral Citation:	Youssef Hadid v Sheriff of New South Wales [2017] NSWSC 1536
Hearing dates:	19 October 2017
Date of orders:	19 October 2017
Decision date:	19 October 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	Proceedings dismissed.
Catchwords:	PRACTICE AND PROCEDURE – Where plaintiff brought urgent application before the duty judge arising from the refusal of the Sheriff to allow his solicitor entry into a building housing the Local Court – No originating process filed – Uncertainty as to the terms of the orders and the entities against whom such orders were sought – Where the plaintiff was to appear before the Local Court for sentence – Where plaintiff arrived at Court accompanied by his solicitor – Where solicitor proceeded through Court security and in doing so activated an alarm – Solicitor was then asked by the Sheriff to remove his belt – Where solicitor refused Where solicitor asserted that the Sheriff was interfering with the course of justice in asking him to remove his belt – Whether the request to the solicitor to remove the belt was lawful – Whether the plaintiff should have the Local Court proceedings against him stayed – Where Sheriff prima facie had a statutory power to direct the solicitor to remove his belt – Where the conduct of the solicitor was relevant to the granting of the orders sought – Where that conduct tended against the making of the orders in the exercise of the court’s discretion – Orders refused – Proceedings dismissed
Legislation Cited:	Court Security Act 2005 (NSW) Crown Proceedings Act 1988 (NSW) Sheriff Act 2009 (NSW)
Category:	Principal judgment
Parties:	Youssef Hadid – Applicant Sheriff of New South Wales – Respondent
Representation:	Counsel: S Hopper (Solicitor) – Applicant No appearance – Respondent     Solicitors: Stephen Hopper & Associates – Applicant No appearance – Respondent
File Number(s):	Nil
Publication restriction:	Nil

Judgment – ex tempore (revised)

1. Before the Court is an urgent application brought by Youssef Hadid. Mr Hadid is the defendant in proceedings which are listed for sentence today before the Parramatta Local Court. Mr Hopper, solicitor, appears for him in those proceedings and has appeared before me today on this application. The application has come before the Court absent any originating process, and supported by two handwritten affidavits of the plaintiff.

2. The absence of any originating process rendered it difficult to determine the terms of the orders sought. When I asked Mr Hopper to articulate those terms he responded that the orders were sought as follows:

1. “That the plaintiff’s matter at the Parramatta Local Court be stayed until such time as Mr Hopper is allowed entry by security to Parramatta Local Court to attend to the representation of the plaintiff.”

2. “That the Sheriff of NSW at the Parramatta Local Court be restrained from refusing Mr Hopper entry on the basis that they (sic) are making an arbitrary request to remove an article of clothing such as a belt or any other item.”

3. The absence of any originating process also made it difficult to determine the identity of the defendant(s). When I asked Mr Hopper to indicate to me the person(s) against whom the orders were sought, he initially responded by specifying that it was the Sheriff of NSW. He later conceded, as I understood it, that the provisions of the Sheriff Act 2009 (NSW) did not create an entity, who was able to sue or be sued. At that point, Mr Hopper indicated that the defendant was properly identified as the State of New South Wales. Although he did not specifically say so, I presumed that this was said to be pursuant to the Crown Proceedings Act 1988 (NSW).

4. That, of course, left open the question whether Mr Hopper also sought relief against the Local Court of NSW, bearing in mind the terms of the first of the orders that he had articulated. That issue remains unresolved, although in light of the conclusions that I have reached in respect of the application, it is not necessary to take it further.

5. The two affidavits of the plaintiff, both of which are dated 19 October 2017, set out the following factual matters.

6. The plaintiff has what he describes in paragraph 1 of his first affidavit as a “traffic matter” listed before the Parramatta Local Court today for sentence. At approximately 9.30am today he attended the court with Mr Hopper, who is his solicitor. Mr Hopper walked through a security scanner at the entrance to the Court building, and an alarm sounded. A person who was either a sheriff or who was one of the sheriff’s staff then said to Mr Hopper:

“Take off your belt and put it through the scanner”.

7. Mr Hopper refused, saying:

“I am not taking off my belt or clothing. I am a legal practitioner. Scan me if you like but you dont (sic) have the power to make me remove my clothing particularly in a public place”.

8. Mr Hadid states that those responsible for the security of the court then refused to let Mr Hopper proceed further into the Local Court building. .

9. A superintendent identified as Mr Eddy Temurcuoglu then attended. Mr Hadid stated that Mr Temurcuoglu had “an argument” with Mr Hopper, in the course of which he heard Mr Hopper say words to the effect:

“By preventing me entering the Court you are interfering with the administration of Justice. I am a qualified solicitor and officer of the court and I do not pose a security risk. My client (sic) matter is before the Court for sentencing today”.

10. Mr Temurcuoglu is said to have responded:

“You are not coming in unless you take your belt off”.

11. Mr Hopper apparently then went and spoke to the Registrar of the Local Court. Having done so, he wrote a letter to Magistrate Keady, who was to hear the plaintiff’s proceedings. That letter is annexure A to the first of the plaintiff’s affidavits and includes the following:

“As a senior practitioner of 16 years I have never been a threat to the security of the court. I advised the sheriff I was a legal practitioner with a matter before the court today and that they were interfering with me and hence the court process”.

12. The letter went on to state that Mr Hopper had been refused entry and sought that the plaintiff’s matter be stayed until he was in a position to seek “urgent interlocutory orders in the New South Wales Supreme Court today”.

13. The plaintiff asserts, to the extent that it is relevant, that he saw other people being permitted to proceed through the scanner without being asked to remove any belt or article of clothing.

14. It will be evident from that summary of the facts that although these proceedings are brought in the name of Mr Hadid, the circumstances surrounding the entry (or attempted entry) into the court by Mr Hopper form the primary factual basis for the orders which are sought. It is somewhat curious in those circumstances that Mr Hopper, being the person whose conduct is the subject of the affidavit material, has appeared for the plaintiff on this application. In any event, the essence of the application articulated by Mr Hopper on the plaintiff’s behalf was that those in charge of security officers at Parramatta Local Court did not have the power to require him to remove his belt as a condition of entry.

15. Mr Hopper took me to various provisions of the Court Security Act 2005 (NSW) (“the Act”) and submitted that the effect of those provisions was that in asking him to remove his belt, those officers had acted beyond their power, thus providing a proper basis for a stay of the Local Court proceedings. Mr Hopper took me, in particular, to s. 6 of the Act which is in the following terms:

6 Right to enter and remain in open areas of court premises

(1) A person has a right to enter and remain in an area of court premises that is open to the public if:

(a) the person has complied with all relevant orders made by a judicial officer (whether under this Act or another law) in respect of the person, and

(b) the person has complied with all directions or requirements made by a security officer under this Act in respect of the person.

(2) Without limiting subsection (1), a journalist has a right to enter and remain in an area of court premises open to the public that is located outside of a building in which the court is housed or is sitting for the purpose of making a media report if the journalist is not obstructing or otherwise impeding access to the building.

(3) This section has effect subject to the following:

(a) the provisions of this Act,

(b) any inherent or implied jurisdiction of a court to regulate its proceedings,

(c) any other Act or law about persons who may be present in a court or court premises.

(4) Nothing in this section confers a right on any person to enter or remain in a correctional centre for the purpose of seeing another person appear before a court by means of an audio link or audio visual link.

16. Mr Hopper submitted that in all of the circumstances, he had a right to enter, and remain in, the open areas of the Parramatta Local Court premises.

17. Mr Hopper also took me in some detail to the provisions of s. 10 of the Act which confer a power on a security officer to conduct searches of persons and vehicles. It seems to me that in circumstances where the officer did not, on any view of the evidence, seek to invoke that power, s. 10 is largely irrelevant.

18. I was also taken to the provisions of s. 14 which confer power on a security officer to give certain directions. Those provisions are in the following terms:

14 Power to give directions

(1) A security officer may give a direction to a person in court premises if the security officer has reasonable grounds to believe that the person's behaviour in the premises (referred to in this section as

"relevant conduct" ):

(a) is obstructing another person or persons, or

(b) constitutes harassment or intimidation of another person or persons, or

(c) is causing or is likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness.

(2) Such a direction must be reasonable in the circumstances for the purpose of reducing or eliminating the obstruction, harassment, intimidation or fear.

(2A) Without limiting subsection (1), a security officer may give either or both of the following directions to a person who is entering or in court premises:

(a) a direction to remove a helmet that is being worn by the person,

(b) a direction to not wear a helmet while in court premises.

(2B) A security officer may give a direction under subsection (2A) only if the helmet concerned is obscuring the face of the person wearing it or would obscure the face of a person wearing it.

(3) If a security officer has complied with this section and section 20 in giving a direction to a person under this section and the person fails to comply with the direction, the security officer may again give the direction and, in that case, must again warn the person that failure to comply with the direction may be an offence.

Note : Section 20 requires a security officer to provide certain information and a warning before exercising a power under this section.

(4) A person must not, without reasonable excuse, fail to comply with a direction given in accordance with subsection (3).

Maximum penalty (subsection (4)): 20 penalty units.

(5) A person is not guilty of an offence under subsection (4) unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct.

(6) A security officer may give a direction under this section to persons comprising a group.

(7) In the case of a direction that is given to a group of persons in accordance with this section, the security officer is not required to repeat the direction, or to repeat the information and warning referred to in section 20, to each person in the group.

(8) In the case of a direction that is given to a group of persons in accordance with subsection (3), the security officer is not required to repeat the direction, or to repeat the warning referred to in that subsection, to each person in the group.

(9) However, just because the security officer is not required to repeat any such direction, information or warning does not in itself give rise to any presumption that each person in the group has received the direction, information or warning.

(10) The other person or persons referred to in subsection (1) need not be in the court premises but must be near the premises at the time the relevant conduct is being engaged in.

(11) For the purposes of subsection (1) (c), no person of reasonable firmness need actually be, or be likely to be, present at the scene.

19. Mr Hopper submitted that the fundamental purpose of the Act was to provide security for court premises and that in all of the circumstances, the officer did not have the power to ask him to remove his belt. Two observations may be made about that submission.

20. Firstly s. 5 of the Act makes it plain that the powers which are conferred by the Act are in addition to, and not in derogation of, any other power of any other person in relation to the conduct of proceedings in a Court, or the regulation of the conduct of persons in court premises.

21. Secondly, even if the Act exhaustively defined the powers of security officers in court premises, s. 14 gives a security officer power to give a direction to a person if that officer has reasonable grounds to believe that the person’s behaviour in the premises is, amongst other things, obstructing another person or persons. Whilst the matter has not been fully argued before me (none of the proposed defendants having been put on notice of it) I have not had the benefit of any contradictor to the submissions which have been made on behalf of the plaintiff. However even at a prima facie level, the affidavits of Mr Hadid tend to establish that the circumstances which prevailed at the time of Mr Hopper’s arrival at the Parramatta Local Court today gave rise to some obstruction at the entrance to the building, thus providing a basis on which the power under s.14 could be invoked.

22. Quite apart from those considerations and as Mr Hopper accepted, a stay of proceedings is a discretionary remedy. One of the matters which necessarily informs the exercise of that discretion is the conduct giving rise to the application. The plaintiff relies upon the circumstances of Mr Hopper’s detention as grounding the application for a stay. In my view, it is relevant to observe that it would have been open to Mr Hopper to simply remove his belt when requested to do so, walk back through the security scanner, and then do what he was there to do, namely protect the interests of the client who he was representing. Those circumstances, in my view, tend wholly against granting the relief which is sought.

23. As I have said, I have not had the benefit of argument in relation to these issues but, for those reasons I do not propose to grant the relief that has been sought. In circumstances where no other party has been put on notice, it is not appropriate that I make any order for costs.

24. The only order I make is that the proceedings are dismissed

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Decision last updated: 13 November 2017