Storey v Commissioner of the New South Wales Police Force

1. [1]

   The plaintiff, acting for himself, commenced proceedings on 26 February 2020 seeking judicial review of proceedings in the Industrial Relations Commission of New South Wales (IRC). An amended summons was filed on 29 April 2020 which expanded the orders sought and identified, for the first time, the grounds upon which relief was sought. The Commissioner of Police is named as the first defendant and the IRC as the second defendant.

2. [2]

   The two orders challenged in the IRC were an order of Commissioner Constant on 20 August 2019 dismissing the plaintiff’s application under s 181E of the Police Act 1990 (NSW), and a decision of the Full Bench of the IRC made on 22 November 2019 refusing leave to appeal against the decision of Commissioner Constant. A supplementary order was sought remitting the plaintiff’s application under s 181E to the IRC to be determined according to law.

3. [3]

   The plaintiff also sought an order setting aside the decision or order of the Commissioner of Police (who I shall refer to herein as “the defendant”) dated 6 April 2018 removing the plaintiff from the police force under s 181D of the Police Act. It was that removal which led to the review proceedings in the IRC.

4. [4]

   On 25 May 2020 the present proceedings were listed for final hearing on 2 September 2020.

5. [5]

   On 17 July 2020 the plaintiff filed a notice of motion seeking leave under r 59.7(4) of the Uniform Civil Procedure Rules 2005 (NSW) to administer interrogatories to the first defendant, and seeking an order that the first defendant answer those interrogatories. The interrogatories were attached to the notice of motion.

6. [6]

   I heard the notice of motion on 20 August 2020.

Application for adjournment

1. [7]

   At the outset of the hearing of the notice of motion, the plaintiff sought to move on a further notice of motion seeking an adjournment of the first notice of motion and of the proceedings generally so that he could obtain legal assistance. In support of this second motion, the plaintiff swore an affidavit setting out the attempts he had made between 31 July and 12 August to obtain legal representation.

2. [8]

   After hearing submissions from the plaintiff in relation to this application to adjourn, I refused the application, and said that I would provide reasons in the judgment dealing with the plaintiff’s first notice of motion. The following are my reasons for refusing the adjournment.

3. [9]

   First, the plaintiff commenced these proceedings, agreed that it should be set down for a final hearing, filed the first notice of motion, and agreed to the hearing of that motion on 20 August without having legal representation. The first time the plaintiff appears to have sought legal representation was on 31 July. The reason given for that delay is that the plaintiff lacked funding to do so. Whilst that is obviously a matter to be taken into consideration, it is not sufficient to justify vacating hearings to which the plaintiff agreed, in proceedings which he initiated and in which he filed the first notice of motion.

4. [10]

   Secondly, nothing in the affidavit points to any likelihood that he will obtain legal representation if the present motion is adjourned or even if the final hearing is adjourned to a further date appointed in the near future.

5. [11]

   Thirdly, a perusal of the amended summons, the affidavits and the submissions filed by the plaintiff in relation to both the present motion and the final hearing suggested to me that the plaintiff had received legal assistance in their preparation. The documents, particularly the submissions, were expressed in language suggesting a familiarity with legal principles and learning. Considerable reference was made to cases which were put forward as authority for various submissions made. I asked the plaintiff if he had received legal assistance with these documents but he said that he had not. I accept what he told me. In those circumstances, it does not appear to me that he was at any serious disadvantage in appearing without a lawyer. He said that his concern was that he would not be able to respond to new arguments raised by counsel for the defendant. However, extensive written submissions have been filed on both sides in respect of both the hearing of the motion and the final hearing. It can be accepted that those submissions will be the basis for arguments put orally.

Application to administer interrogatories

1. [12]

   I then proceeded to hear the plaintiff’s motion seeking leave to administer interrogatories. At the conclusion of the hearing I made orders dismissing the notice of motion and ordered that the plaintiff pay the defendant’s cost of the motion. These are my reasons for so doing.

2. [13]

   Part 59 UCPR is concerned with judicial review proceedings. Rule 59.7 relevantly provides:

3. [14]

   Rule 22.1 UCPR provides:

4. [15]

   In Edwards v Hornsby Shire Council [2014] NSWSC 600, a case where personal injury damages were claimed, Schmidt J said:

5. [16]

   The interrogatories are said to be related to the issue identified in ground 7 of the appeal, and it is submitted that they also potentially cover information relating to ground 10.

6. [17]

   Grounds 7 and 10 are these:

7. [18]

   The interrogatories sought to be administered are these:

The evidence

1. [19]

   The evidentiary basis for seeking the interrogatories is set out in the plaintiff’s affidavit sworn 24 July 2020.

2. [20]

   The plaintiff says that he retained the services of a solicitor, Michael Ghobrial, prior to the issuing by the Commissioner of the show cause notice in October 2017. Mr Ghobrial was retained to compile the response to that notice which was dated 21 December 2017. He was then retained to prepare the application for review under s 181E of the Police Act, and to appear before the IRC when that application was listed for directions. Mr Ghobrial’s retainer was terminated on 8 August 2018.

3. [21]

   Part of the plaintiff’s complaint about Mr Ghobrial was that he was generally neglectful of his matter. It appears that documents were filed and served either at the last minute or after the time allowed by the IRC for doing so. The plaintiff says that he believes these actions and inactions have occurred due to the existence of the conflict of interest. He says further:

4. [22]

   On 8 October 2018 the plaintiff made a complaint to the Office of the Legal Services Commissioner asserting that Mr Ghobrial had been acting with a conflict of interest “that was being implemented by persons acting for the benefit of the Commissioner of Police”. It appears that the Legal Services Commissioner referred the matter to the Law Society. The plaintiff said that there were delays in the Law Society responding to the complaint.

5. [23]

   At one time the plaintiff said that he had received a letter from the Law Society dated 27 September 2019 saying:

6. [24]

   On 8 August 2018, the plaintiff retained Benjamin & Khoury Solicitors. It appears that the solicitor looking after the plaintiff’s matter in the IRC was Dieb Khoury.

7. [25]

   In his affidavit, the plaintiff sets out a number of complaints that he had with that firm almost from the outset of the retainer, including complaints concerning the way the proceedings were conducted on his behalf by his barrister Paul Madden and by his solicitors. Some of the complaints appear to be captious. For example, in paragraph 27 of his affidavit the plaintiff said that when the Commissioner asked a question of Mr Khoury he would respond with a two word answer. He identified the following exchange:

8. [26]

   The plaintiff then said this in his affidavit:

9. [27]

   The plaintiff set out that from November 2019 to July 2020 he had applied for employment on more than 20 occasions with 18 separate employers. None of the applications was successful. He says that as a result of not being employed he had been unable to obtain legal advice or retain representation in the matter.

10. [28]

    It is necessary to set out the remainder of his affidavit which reads:

Plaintiff’s submissions

1. [29]

   It may first be observed that some of the material in the affidavit is in the form of submission, but no objection was taken to it. In these paragraphs set out above the plaintiff appears to suggest that a conspiracy existed involving the Commissioner whereby various persons, including Mr Khoury and someone in the office of Mr Ghobrial, refer to the plaintiff as “Jason”. The plaintiff infers that either or both of Mr Ghobrial and Mr Khoury had been approached to behave in that way and, because they did not tell him they had been so approached, they were acting against his interests. He also asserts that because Mr Khoury has failed on a number of occasions to respond to an enquiry from a costs assessor, that is further proof that he is seeking to conceal information about the conflict of interest.

2. [30]

   In his oral submissions and his submissions in reply, the plaintiff said that he relied on coincidence evidence to assert that there was a conflict of interest. The coincidences appear to be; various people calling the plaintiff “Jason”; various things which the plaintiff claimed his solicitors had done against his interests in the proceedings before the IRC which are set out in his written submissions in reply; the failure of the Law Society to respond to his communications and to finalise his complaint; and his inability to obtain employment. The complaint against his solicitors was said to amount to more than incompetence or negligence. He submitted that they deliberately conducted the proceedings in a way that was inimical to his interests.

3. [31]

   He said of these matters in his submissions in reply,

4. [32]

   I endeavoured to ascertain who these “public officers” were, and in particular to ascertain if they were police officers, because the plaintiff submitted that their conduct was to the benefit of the defendant. The plaintiff said that they may be police officers or persons assisting police officers, because the defendant “controls the public officers”. He said that he needs the answers to the interrogatories to find out who these public officers were who (a) had approached people telling them to call him “Jason”, (b) had approached his legal advisers so that they would not conduct the proceedings properly, and (c) had approached the Law Society to influence their handling of his complaint.

5. [33]

   It is on that basis that he seeks to justify his application for interrogatories.

Determination

1. [34]

   The allegations the plaintiff makes are extremely serious. In substance he is asserting that the defendant and the two firms of solicitors perverted the course of justice, and that the defendant misused his position and authority to exert improper influence on the solicitors and the Law Society. The allegations suggest a criminal conspiracy between, at least, the defendant and the firms of solicitors. There is not a shred of evidence to support any of the allegations. They are entirely dependent on the plaintiff’s imagination and speculation. The allegations should not have been made.

2. [35]

   The delay in relation to the Law Society has a logical explanation. In Council of the Law Society v DXW [2019] NSWSCATOD 101, a problem was identified in the complaint process in s 266 of the Legal Profession Uniform Law (NSW) No 16a. That problem was what was referred to in the Law Society’s letter set out at [23] above. The problem was not rectified until earlier this year. That might suggest also that other explanations exist in relation to the other matters the plaintiff puts forward to support his unsubstantiated conclusion of criminal behaviour on the part of the defendant and others.

3. [36]

   Success on ground 7 of the summons is dependent upon the demonstration of a conflict of interest affecting the plaintiff’s legal representatives. Nothing contained in the plaintiff’s affidavit of 24 July 2020 provides any basis for suspecting that those legal representatives were in a conflict of interest, how the defendant was supposed to be involved in that conflict of interest, and how that conflict of interest might have meant that the IRC did not exercise its jurisdiction by considering the plaintiff’s case.

4. [37]

   There is nothing to explain what benefit the solicitors would obtain for acting against the plaintiff’s interests. The plaintiff was not able to explain how the participation of the solicitors in a “controlled operation” (a term which he said he used in its usual meaning, as defined in the Law Enforcement (Controlled Operations) Act 1997 (NSW)) had any connection to a conflict of interest. The assertions of conflict of interest in the affidavit are made without any factual basis.

5. [38]

   This is an egregious example of a party seeking to serve interrogatories as a fishing expedition in an endeavour to find if there is any basis for the speculation in which the plaintiff has engaged in the affidavit and in his submissions.

6. [39]

   In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, Owen J (Street CJ and Herron J agreeing) described a fishing expedition in these terms:

7. [40]

   In W A Pines Pty v Bannerman (1980) 41 FLR 169, Toohey J said at 174:

8. [41]

   In the present case there is no disclosed factual foundation for the allegation of a conflict of interest or of the other matters alleged.

9. [42]

   The plaintiff submitted that ground 10 was also concerned with the conflict of interest, because that conflict of interest was the basis upon which Commissioner Constant was able to inform herself of matters, contrary to the provision of the Police Act. When I asked him to identify which matters about which she had informed herself, he said that he did not know because he was not there. That was why, he said, he needed the answers to interrogatories.

10. [43]

    Ground 10 appears to be misconceived. Section 181G of the Police Act applies particular provisions of the Industrial Relations Act 1996 (NSW) to such a review. In particular, ss 162 and 163 of the Industrial Relations Act with only the modifications contained in s 181G. Section 163(1)(b) enables the Commission to inform itself on any matter in any way that it considers to be just. What the Commissioner is saying at transcript page 48 line 1 of 1 April 2019 is nothing more than that.

11. [44]

    However, even if the Commissioner was not entitled to inform herself of matters, the interrogatories, which are directed to the defendant, would not throw any light on the matters about which the Commissioner had so informed herself. In that way, they are not necessary for the conduct of the proceedings to the extent of what is argued in relation to ground 10.

Conclusion

1. [45]

   For those reasons I made the following orders: