Joukhador v State of New South Wales

1. [1]

   The Commissioner of Police seeks by way of Notice of Motion filed on 17 April 2025 that he be excused from producing certain documents sought by the plaintiff (the respondent on the Notice of Motion) (Mr Joukhador), by way of a subpoena issued on 19 March 2025. The Commissioner’s primary submission is that he should be excused from producing the documents because they belong to a class of documents the production of which would be contrary to the public interest (the class claim). The secondary submission is that he should be excused from producing certain documents or parts of documents on the basis that the production of some or all of their contents would be contrary to the public interest (the contents claim). The contents claim was not, in essence, opposed by Mr Joukhador.

2. [2]

   For the reasons set out below, I reject the Commissioner’s class claim and find that he is entitled to the order sought on the basis of his contents claim.

3. [3]

   The matter was heard before me on 23 September 2025 with further submissions filed by both parties in late October 2025.

4. [4]

   Relevantly, the subpoena seeks production by the Commissioner of Police of what I will term the confidential Lanyon affidavits, being the following:

5. [5]

   A third category originally sought by the subpoena was withdrawn.

6. [6]

   The orders sought by the Notice of Motion are relevantly:

7. [7]

   The Commissioner read an open affidavit of Scott Cook APM sworn 17 April 2025 in support of the Notice of Motion, but did not, at the start of the hearing, tender the exhibits referred to in that affidavit indicating that they might be tendered if necessary, in the future. Included amongst the exhibits which were not tendered were the confidential Lanyon affidavits.

8. [8]

   Mr Joukhador relied upon the affidavit of sworn by him on 29 April 2025 together with a lengthy exhibit.

9. [9]

   Certain objections to some of Mr Joukhador’s material were taken by the Commissioner. However, given the nature of this application, and the nature of the objections, other than para 59 of Mr Joukhador’s affidavit which is clearly not admissible, I decided to deal with the remaining objections as matters going to weight.

Background

1. [10]

   Mr Joukhador has brought a malicious prosecution action against the State of New South Wales, following the institution and subsequent discontinuance of criminal proceedings against him. Some further background is available in a number of judgments concerning other proceedings between the same or related parties which relate to challenges to search warrants issued prior to Mr Joukhador’s arrest which underpins the malicious prosecution action: Joukhador as Principal Solicitor of Thomas Booler Lawyers v NSW Commissioner of Police [2017] NSWSC 1287; Joukhador v Commissioner of Police [2017] NSWSC 1653; Joukhador v Commissioner of Police [2018] NSWSC 872; Joukhador v State of New South Wales [2024] NSWSC 1526; and Commissioner of Police v Joukhador [2025] NSWSC 1269.

2. [11]

   A number of years ago, a public interest immunity (PII) claim was made by the Commissioner in relation to Mr Joukhador’s search warrant challenge. It was in that context that the confidential Lanyon affidavits were relied upon to substantiate the PII claims made by the Commissioner to support redactions in the search warrant applications sought by Mr Joukhador. I note that this PII claim was a contents claim rather than a class claim.

3. [12]

   More recently, in the course of preparing the malicious prosecution proceedings, Mr Joukhador sought, and received, access to the court file concerning the search warrant challenge. The confidential Lanyon affidavits which were relied upon in support of the PII claim in relation to the search warrant applications had been retained on the court file and were provided to Mr Joukhador in error.

4. [13]

   The Commissioner commenced proceedings by way of a summons to seek the return of the confidential Lanyon affidavits erroneously supplied to Mr Joukhador. This Court was informed that when the subpoena the subject of this judgment was issued Mr Joukhador understood that the malicious prosecution action and the summons seeking the return of the confidential Lanyon affidavits would be heard together, hence Mr Joukhador’s affidavit read in this matter contains material relevant to both issues. As it turned out, the summons matter was resolved out of court, with the outstanding costs issue dealt with by Wright J in Commissioner of Police v Joukhador [2025] NSWSC 1269.

5. [14]

   It is apparent that in September 2024 the redactions which had been made to the search warrant applications sought by Mr Joukhador had been pared back considerably. The new version of the search warrant applications with substantially reduced redactions is before the Court and there remain only a very small number of such redactions.

Consideration

1. [15]

   A number of matters arise for consideration.

2. [16]

   First, I must decide if the Commissioner has persuaded me that I should find the confidential Lanyon affidavits should be protected because they belong to a novel class of documents entitled to protection from disclosure unless there is a weightier public interest which requires production.

3. [17]

   Second, if I decide against the finding of a novel class claim, I must then consider the Commissioner’s ‘back-up’ claim of PII over some of the contents of those affidavits. As I understand it, there is no contest between the parties that some of the material in the confidential Lanyon affidavits so far as it may disclose the identity of informers, or those who contact Crime Stoppers, is properly the subject of protection, and the contents claim is not, in principle, opposed.

4. [18]

   The Commissioner’s primary argument is that I should find the confidential Lanyon affidavits worthy of protection as part of a novel class of “all confidential affidavits sworn in support of PII claims” entitled to protection from disclosure unless there is a weightier public interest which requires production.

5. [19]

   The Commissioner argued that ss 131 and 131A of the Evidence Act 1995 (NSW) (the Evidence Act provisions) essentially reflect the common law as outlined in Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, except that the common law (unlike the Evidence Act provisions) specifically recognised a particular category of information requiring protection in relation to informers. This would appear to be correct.

6. [20]

   At the hearing the Commissioner acknowledged that his class claim was not as strong a claim as that which applied to Cabinet documents, submitting that the only recognised “class” in Australian case law involved Cabinet documents. I will return to this latter submission below, as that submission does not appear to be well-founded.

7. [21]

   As noted, the Commissioner relied upon the evidence of Assistant Commissioner Scott Cook, a police officer of over 36 years standing, and the Commander of the State Crime Command of the NSW Police Force, clearly a very experienced police officer. Assistant Commissioner Cook stated at [6]-[25] of his affidavit:

8. [22]

   The argument made by the Commissioner, largely in accordance with the content of the evidence above, is that the confidential Lanyon affidavits should be protected as part of a class because if not so protected, there would be an inhibitory effect on deponents of such affidavits as future confidentiality could not otherwise be guaranteed (the “candour argument”). At the hearing, the Commissioner further refined this argument by stating that any confidential PII affidavit should be kept confidential until it is an “historical matter, more than seven years we would say”.

9. [23]

   It can be observed immediately that there is a flaw in this proposition. The corollary of this argument must be that it is only by providing protection to the class of documents of which these affidavits would be a part that future disclosure (that is, at least, disclosure within seven years) could be prevented with certainty. However, as conceded in argument by the Commissioner, and in accordance with the principle stated by the High Court in Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24 at 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ), even where documents fall within a class in respect of which there are strong public policy considerations militating against disclosure “the immunity from disclosure of documents falling within such a class is not absolute” [emphasis added].

10. [24]

    Their Honours in Northern Land Council further pointed to the balancing exercise which must be undertaken in relation to class claims:

11. [25]

    Accordingly, even if I were to find that the confidential Lanyon affidavits were part of a class of documents worthy of protection, such a classification does not provide an absolute bar to future disclosure within a notional seven-year period or any other period.

12. [26]

    I acknowledge there are different ramifications flowing from the recognition of a class claim as opposed to a contents claim (apart from the obvious logistical differences). For instance, the case law recognises that for class claims the balancing exercise conducted by a court starts with the scales tipped more in favour of non-disclosure. As observed in Northern Land Council at [9]:

13. [27]

    However, even if it be the case that a Court is less likely to order disclosure where documents are part of a class rather than on the basis of their contents, as noted, there is still clearly, on any view, the prospect that the documents will be disclosed. Accordingly, either way, on the Commissioner’s argument, there would still be an inhibitory effect even if I were to be persuaded I should find a novel class claim. This clearly weakens the Commissioner’s argument.

14. [28]

    It is convenient at this point, to make further observations about Assistant Commissioner Cook’s affidavit. Whilst I accept much of his evidence as uncontroversial, in my view, Assistant Commissioner Cook overstated the position which would flow from a refusal of a class claim. At [12] in his affidavit he described what would apparently flow from a refusal of a class claim as being a situation where “there was no expectation that confidential evidence would remain confidential, or that the confidentiality could be lightly overridden”. However, refusing to recognise a class claim would not warrant this response. Apart from the different starting point identified in the previous paragraph, a contents claim would simply mean that claims for PII would be dealt with on a case by case basis according to the particular content. It would not mean, as suggested by Assistant Commissioner Cook, that evidence properly attracting protection from disclosure would not remain confidential, nor that confidentiality would necessarily be lightly overridden.

15. [29]

    Other parts of Assistant Commissioner Cook’s evidence appeared to recognise candidly that, over time, the importance of secrecy of all or part of a confidential affidavit may dissipate, depending on factors such as the stage of a prosecution, including whether or not a prosecution had been concluded or abandoned. I agree with Mr Joukhador’s submission that this recognition alone points in the direction of the appropriateness of a contents claim being made over such material rather than a class claim. Further, I note in relation to Assistant Commissioner Cook’s evidence that the principle of informer protection (which no doubt also covers information provided via Crime Stoppers) is a well-recognised category under the common law. Even though there is no specific rule under s 130 of the Evidence Act ensuring the protection of informers (and cognate categories of confidential law enforcement sources), it will usually be the case that the public interest in protecting the confidentiality of such sources will outweigh any countervailing interest: see for instance, Derbas v The Queen [2012] NSWCCA 14; (2012) 221 A Crim R 13. Mr Joukhador does not contend to the contrary.

16. [30]

    With these observations in mind, I now turn more directly to consideration of the novel class claim argument. Regrettably, neither of the parties provided the Court with analysis of the relevant case law in relation to this issue.

17. [31]

    The case law recognises that the task of persuading a Court that it should grant novel class protection is a difficult one. As stated by Gibbs ACJ in Sankey at 39, a claim for immunity for a class of documents as opposed to a contents claim in relation to individual documents will be upheld only if it is really necessary for the proper functioning of the public service. Further, Stephen J observed in Sankey at 62 that “those who urge Crown privilege for classes of documents, regardless of particular contents carry a heavy burden”.

18. [32]

    In Rogers v Home Secretary [1973] AC 388, the Court considered whether there should be a novel class claim in relation to documents provided to the Gaming Board about an applicant’s character, reputation and financial standing. Lord Reid noted at 400 in Rogers, citing Conway v Rimmer [1968] AC 910, that there is a heavy burden of proof on those who make a class claim. The claim was based on the fact that the board could not adequately perform its statutory duty unless it could preserve the confidentiality of all communications to it regarding the character, reputation or antecedents of applicants. Noting the long recognised classes of documents and information which for years have been recognised by the law as entitled to be immune from disclosure in the public interest (Cabinet minutes, minutes of discussions between heads of government departments, dispatches from ambassadors abroad and “although different in nature” any evidence as to the sources from which the police obtain their information), Lord Salmon at 412 in Rogers stated that the immunity from disclosure “should not lightly be extended to any other class of document or information”.

19. [33]

    Ultimately, the novel class claim was upheld in Rogers on the basis that the crux of the information provided to the board was essentially equivalent to police informer information, long recognised as properly attracting protection on the basis of public interest, and it would be impracticable for the board to be sure of the precise information requiring protection. Lord Reid stated at 401 in Rogers:

20. [34]

    It can immediately be observed that police are in a different position to a gaming board. Unlike a gaming board, police are well equipped, and indeed are the quintessential body in most instances, to be able to identify, with precision, information requiring protection from disclosure.

21. [35]

    Further, even though the Commissioner’s argument was based entirely on the inhibitory effect of the potential disclosure of confidential police affidavits, that candour argument finds little current support in the case law. I also note, as is apparent from the discussion below, that the case law involving PII in the context of police methodology and procedure seems to have been dealt with in the context of contents claims rather than class claims. Whilst this does not rule out a novel class being found here, it certainly indicates that dealing with the issue of police methodology and procedure by way of a contents claim has been demonstrated to be workable.

22. [36]

    Although not referred to in any detail before me, the seminal case of Conway v Rimmer involved, as in the instant case, a malicious prosecution action. It concerned Conway, a former probationary police constable, taking proceedings against his former superintendent Rimmer to recover damages for malicious prosecution. Conway had been charged and acquitted of larceny. Both Conway and Rimmer wanted access to reports made by Rimmer in relation to Conway’s probation and Rimmer’s investigation of the alleged larceny. The Home Secretary objected to production of the reports on the ground that they belonged to a class of documents the disclosure of which would be injurious to the public interest. Even though a number of the speeches acknowledged the importance of protecting police methodology and procedures, the House of Lords rejected the class claim. It held that the documents should be inspected, and the matter determined on the basis of a contents claim. Whilst it can be observed that the Home Secretary was seeking class protection for reports made by a police officer in an employment and investigative context rather than for confidential police affidavits claiming PII, the following comments are nevertheless instructive.

23. [37]

    Lord Reid stated at 953–954:

24. [38]

    Lord Morris of Borth-y-gest stated at 972:

25. [39]

    Lord Upjohn stated at 995:

26. [40]

    Lord Morris of Borth-y-gest at 957 also expressed scepticism about the importance of “candour” in the context of making a class claim.

27. [41]

    The issue of candour was also the subject of comment by the majority of the High Court in Northern Land Council at [5] where it was indicated that rather than the need for candour, underpinning the class claim for confidentiality of Cabinet documents was the collective responsibility of Cabinet government. The Court stated:

28. [42]

    A more recent case, also dealt with on a contents rather than a class claim basis, and involving an allegation of malicious prosecution (as well as assault allegations) is Ahmet v Chief Commissioner of Police [2014] VSCA 265. The applicant sought complaint and investigation records concerning four police officers involved in alleged assaults. The Victorian Court of Appeal at [21] in Ahmet observed:

29. [43]

    The Victorian Court of Appeal in Ahmet concluded that in the circumstances, only a ‘contents’ claim could be pursued.

30. [44]

    As noted in Ryan v State of Victoria [2015] VSCA 353 at [91], the primary judge in Ahmet had:

31. [45]

    The Victorian Court of Appeal in Ahmet held that the primary judge had erred by not inspecting the documents in contest, as it was only by inspecting the documents that any real balancing of competing interests could have been undertaken. The matter was remitted to the primary judge for that exercise to be undertaken.

32. [46]

    I acknowledge that the confidential Lanyon affidavits are different in nature from the documents in question in Ahmet, but the case is instructive because of the similarity of the arguments made by the Chief Commissioner in Ahmet to those made in this case. Further, Ahmet is an example of an intermediate appellate court readily endorsing the inspection of documents in order to undertake a balancing of competing interests in the context of a contents claim involving police activities.

33. [47]

    Contrary to the Commissioner’s contention that there is no case in Australia recognising a class claim beyond Cabinet documents, my research revealed The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34. In that case, production was resisted by the appellant on the basis of both a class claim and a contents claim. The appellant relied upon the public interest in the confidentiality of the information supplied by survey respondents to the Australian Statistician, or more precisely the identity of the respondents to whom confidential trade information related. As noted at [35]:

34. [48]

    The Court upheld the novel class claim in Australian Statistician v Leighton, noting the following at [36] and [42]:

35. [49]

    Whilst that is an example of a novel class claim being upheld in Australia, the rationale again appears to be analogous to the well-recognised protection of police informer information, and the provision of such information to a non-police body.

36. [50]

    Another recognised class of documents found to be worthy of protection in Australia are documents leading to adverse security assessments: Parkin v O’Sullivan (2009) 260 ALR 503; [2009] FCA 1096; SBEG v Secretary, Dept of Immigration and Citizenship (2012) 291 ALR 281; [2012] FCA 277. Again, even for documents falling within this class, the balancing exercise referred to in s 130(1) is still required: SBEG at [18].

37. [51]

    I note that a reference to confidential affidavits can be found in Parkin v O’Sullivan at [28]:

38. [52]

    That observation, however, did not purport to deal with issues surrounding longer term protection of such documents if subpoenaed or whether they constituted a class attracting PII.

39. [53]

    Further, if one goes to the three cases cited in Parkin v O’Sullivan, the following can be observed. R v Smith (1996) 86 A Crim R 308 relevantly involved confidential affidavits setting out information in support of a claim for PII relating to the true identity of two police informers and a request for pseudonyms. Dodds v R [2009] NSWCCA 78; (2009) 194 A Crim R 408 involved the protection of the identity of undercover police officers. R v Meissner (1994) 76 A Crim R 81 involved the protection of information relating to two police informants. Thus, it can be seen that the information in all these cases falls into the same general well-recognised category involving police informants or persons requiring similar protection.

40. [54]

    Turning now in more detail to Ryan, it can be noted that the State in that case did not argue that the documents were the subject of a class claim, but rather accepted it needed to establish immunity was attracted by reference to the contents of the documents in question. The Court inspected the documents. The Court upheld the ruling of the primary judge who excluded evidence of police strategies and methodologies on the grounds that the evidence was not relevant and that it attracted PII. The Court noted (at [119]) that in Eastman v The Queen (1997) 76 FCR 9; Young v Quin (1985) 4 FCR 483 and Skrijel v Mengler [2003] VSC 137, police methodology involved a similar underlying public interest in the protection from disclosure as that supporting the exclusion of the identity of informers, namely that release would hinder the police ‘in their duty of preventing and detecting crime’. In that case, it is clear such an analysis was readily conducted on a contents rather than a class claim basis.

41. [55]

    Finally, the only authority cited by the Commissioner in support of finding this novel class claim was a paragraph in the decision of Hodgson JA (Hislop and Latham JJ agreeing) in Attorney General for NSW v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [42]-[43] where it was made clear that the issue was not the subject of argument.

42. [56]

    I note here too that Hodgson JA did not purport to deal with issues surrounding longer term protection of such documents or whether they constituted a class attracting PII.

43. [57]

    The class claim argument must of course be considered in the context of the statutory regime set out by the Evidence Act provisions. As noted, I agree with the Commissioner’s submission that the weight of authority is that the statutory provisions closely reflect the common law: Eastman v The Queen (1997) 76 FCR 9; New South Wales v Public Transport Ticketing Corp [2011] NSWCA 60; Ryan at [100].

44. [58]

    Finally, for completeness, whilst I received little assistance in relation to the applicability of the State Records Act 1998 (NSW) (the Act) to the question before me, s 9(1)(c) indicates that the Act does not apply to affidavits filed in Court. Otherwise, the Act appears to provide a general rule that public access to a State record is available (subject to exceptions) after 20 years. I am not aware of how the Act may apply in practice to documents held directly by the NSW Police Force or the NSW Crown Solicitors’ Office, including documents which may contain information supporting the contents of confidential affidavits provided to a Court, or in some instances, copies of the confidential affidavits themselves. In any event, given the general 20-year time frame of the Act, it adds little to the question for decision.

45. [59]

    Having reviewed the case law, I am of the view that the weight of authority is that an assessment of a PII claim made on behalf of police which involves issues including details of informers, police methodology and police procedures, can readily be undertaken by the courts on a contents basis. Unlike non-police bodies such as a gaming board (as in Rogers) or a government statistician gathering data (as in Australian Statistician v Leighton), the police can readily assist the court to identify information in need of protection at a particular point in time, with precision. As acknowledged by Lord Morris of Borth-y-gest in Conway v Rimmer set out at [38] above, the courts are well placed to assess these issues.

46. [60]

    In light of all the material referred to above, the Commissioner has failed to persuade me that ‘confidential police affidavits claiming PII’ properly should be the subject of a novel class claim. Rather, any claim for protection on the basis of PII should be considered on the basis of their contents. Accordingly, the relief sought by prayer two is refused.

47. [61]

    Before leaving the issue of class claims, I note that before me, there was argument as to what the appropriate test is, where a class claim was established, for a plaintiff to satisfy a Court, on balance, they should have access to the documents. So far as I understand it, the Commissioner argued that Mr Joukhador would need to establish “a concrete ground for belief that the documents contained material substantially useful to the party seeking discovery” in accordance with Air Canada & Ors v Secretary of State for Trade (No 2) [1983] 2 AC 394. Mr Joukhador, on the other hand, appeared to argue that that test posed too high a threshold and in Australia the test is as set out in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85: “Although a mere “fishing” expedition can never be allowed, it may be enough that it appears to be “on the cards” that the documents will materially assist the defence”, which now must also be viewed in light of the considerations set out in subss 130(5)(a), (c) and (d) of the Evidence Act. Mr Joukhador also seemed to contend at points that the test in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 may now be the appropriate test.

48. [62]

    Given I have found against the Commissioner in relation to a class claim, this issue does not need to be determined, and I will not consider it further.

49. [63]

    Given I have declined to recognise a class claim which would include the confidential Lanyon affidavits, the next question is whether the confidential Lanyon affidavits should be provided to Mr Joukhador, subject to any claim for PII (prayer 3 of the Notice of Motion) determined on a contents basis.

50. [64]

    At hearing, Mr Joukhador made clear that he was only seeking a redacted version of the confidential Lanyon affidavits. Whilst acknowledging it was for the Commissioner to establish the sensitivity of the information, Mr Joukhador made clear that it was not disputed that the specific claims in Assistant Commissioner Cook’s affidavit seeking protection of the identity of any informant to police or other confidential source, or the operation of the Crime Stoppers program or the process of collecting reports lodged through that program, were appropriately made.

51. [65]

    Further in oral argument, the Commissioner made it clear that if the class claim were rejected “it would be a matter of redacting two and a half paragraphs, one and a half paragraphs specifically on [a] principle about which there is no doubt” (that is, informer protection). In other words, the Commissioner conceded that the threshold test in relation to the production of material under the subpoena was met, and the only remaining issue was the Commissioner’s PII claim over discrete information identified in Assistant Commissioner Cook’s affidavit.

52. [66]

    Given the attitude of the parties, together with the clarity of the principles in relation to informer protection, I am of the view that, on balance, in accordance with ss 130 and 131A of the Evidence Act, it is in the public interest that the order sought in prayer 3 of the Notice of Motion should be made, with the Commissioner excused from producing such of the documents over which PII is claimed as specified in Assistant Commissioner Cook’s affidavit (namely, paragraphs 20(f), 20(i) and (39) of the confidential affidavit of Michael Arthur Lanyon APM sworn 15 September 2017). I will specify that the order will take effect in four full working days of the delivery of the judgment, with liberty to apply if any variation to that order is sought.

53. [67]

    As to costs, given the primary argument of the Commissioner, prayer 2 of the Notice of Motion, was unsuccessful, prayer 1 was not pressed and prayer 3 was ultimately not contested on a basis which could have been resolved in correspondence, Mr Joukhador should be awarded costs on the ordinary basis, subject to one matter. The written submissions submitted by Mr Joukhador following the hearing in relation to issues including the Air Canada test (amongst other things) were unduly lengthy and not well-targeted. Accordingly, costs in relation to the preparation of those written submissions should be borne by Mr Joukhador.

54. [68]

    I note that Prayer 1 of the Notice of Motion was not pressed.

Orders

1. [69]

   Accordingly, I make the following orders:

   1. (1)

      Dismiss prayer 2 of the Commissioner’s Notice of Motion.

   2. (2)

      The Commissioner is excused from producing parts of the documents specified in paragraph 1 of the Schedule to the Subpoena dated 19 March 2025 addressed to the Commissioner, namely:

   3. (3)

      The Commissioner is to pay the costs of Mr Joukhador of the Notice of Motion on the ordinary basis (other than for the preparation of Mr Joukhador’s written submissions submitted after the hearing).

   4. (4)

      The Confidential Exhibit to Assistant Commissioner Scott Cook’s affidavit sworn 17 April 2025 is to be returned to the Commissioner.

   5. (5)

      Subject to Order 6, Order 2 is to take effect four full working days after the delivery of the judgment.

   6. (6)

      Grant liberty to the parties to apply by email to my Associate if any variation to Order 2 is sought.