Commissioner of Police v Joukhador

1. [1]

   This judgment deals only with the question of which party should pay the costs of the other party in these proceedings, since they have otherwise been resolved by consent.

Background

1. [2]

   The background to these proceedings is complex and was touched upon in a number of judgments relating to other proceedings between the same two parties or related parties including: 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; and, Joukhador v State of New South Wales [2024] NSWSC 1526. It is not necessary for the purposes of determining the costs issue to set out in detail the background provided by those judgments but they should be read in conjunction with this judgment.

2. [3]

   It is sufficient to note that these various proceedings relate, directly or indirectly, to the fact that the defendant, Mr Joukhador a legal practitioner, had sought to challenge three search warrants executed at Mr Joukhador’s professional premises. For the purposes of that challenge, Mr Joukhador sought access to the relevant applications for the warrants. This was opposed by the plaintiff, the Commissioner of the New South Wales Police, on the grounds of public interest immunity relying on confidential affidavit evidence. Eventually, Mr Joukhador was granted access to redacted versions of applications for the warrants. In addition, however, as a result of having his agent apply to inspect the Court file in one of those matters, the agent was mistakenly given access to unredacted forms of the applications for the warrants and the confidential affidavit evidence. After the plaintiff, the Commissioner of Police, became aware of this access being given to Mr Joukhador’s agent and after unsuccessful attempts to resolve by correspondence what should be done to rectify the situation, the Commissioner commenced these proceedings.

The present proceedings

1. [4]

   By a summons filed in court on 4 March 2025, the Commissioner sought, in addition to certain notations, orders as follows in prayers 2, 3, 4, 5 and 6:

2. [5]

   On 27 May 2025, orders were made by consent effectively disposing of the proceedings except in relation to the question of costs. The orders made on that occasion included the following:

3. [6]

   The orders took this form because, by 27 May 2025, prayers for relief 2, 3 and 4 in the summons were no longer necessary nor sought, on the basis that the Commissioner accepted that the facts and matters warranted by the defendant or noted in order 1 made on that day were true and reliable.

4. [7]

   On 16 June 2025, the parties informed the Court that agreement had not been reached in relation to costs and that a hearing on that issue was required. The hearing in relation to costs took place on 16 July 2025.

Relevant factual findings in relation to costs

1. [8]

   My findings include the facts and matters set out in the following paragraphs.

2. [9]

   In 2017, in proceeding 2017/151403, the Court upheld a claim of public interest immunity made by the Commissioner of Police in respect of the three search warrant applications: Joukhador v Commissioner of Police [2017] NSWSC 1653. The public interest immunity claim was supported by two confidential affidavits sworn by Malcolm Arthur Lanyon, which were received by the Court on a confidential basis and placed onto the Court’s file in proceeding 2017/151403.

3. [10]

   In or about mid-2024, John Sidoti of JS Legal Services Pty Ltd, in his capacity as agent for the defendant, was given access to and copied material on the Court’s file for proceedings 2017/151403 that included copies of the search warrant applications in unredacted form and of the confidential affidavits.

4. [11]

   It was not in dispute that Mr Joukhador and his agent, Mr Sidoti, were not entitled to have, and should not have been given access to, the confidential affidavits and the unredacted warrant applications (together referred to as the Sidoti material).

5. [12]

   On or about 26 June 2024, the defendant caused copies of the Sidoti material to be uploaded via the Internet to a storage location accessible, and only accessible, via an electronic link or copy of the electronic link.

6. [13]

   On or about 27 June 2024, the defendant caused the electronic link or copy of it to become accessible by Turner Freeman, the defendant’s solicitors.

7. [14]

   On 16 September 2024, in the course of different proceedings brought by the defendant, Joukhador v State of New South Wales (file number 2023/164546), the defendant obtained redacted copies of the three search warrant applications which were the subject of the public interest immunity claim in proceeding 2017/151403.

8. [15]

   Although Mr Sidoti, as agent for Mr Joukhador, copied the Sidoti material in about mid-2024, Mr Joukhador did not until 19 December 2024 inform the solicitors then acting for the Commissioner in proceedings 2017/151403 that his agent had gained access to the Sidoti material. On 19 December 2024, Mr Joukhador wrote to the Commissioner’s solicitors stating:

9. [16]

   In their response of 6 January 2025, the solicitors noted that the Crown Solicitor’s Office (CSO) would be dealing with the matter and included the following:

10. [17]

    On 17 February 2025, a representative of the CSO inspected the relevant Court file and ascertained what it contained. On the same day, the CSO sent a letter by email to Mr Joukhador which included the following:

11. [18]

    In a follow-up email on the same day, the CSO sought an urgent response from Mr Joukhador, confirmation that the email had been received and provision of the undertaking requested as soon as possible.

12. [19]

    On 18 February 2025, the CSO resent the letter dated 17 February 2025 under cover of an email which also said:

13. [20]

    On 18 February 2025, the CSO’s telephone call to Mr Joukhador was not answered and a message was left asking him to make contact.

14. [21]

    On 19 February 2025, the CSO wrote a further letter to Mr Joukhador sent by email. That letter included:

15. [22]

    Two hours and 25 minutes later on 19 February 2025, Mr Joukhador emailed the CSO saying:

16. [23]

    By email to Mr Joukhador later that same day, the CSO reiterated its intention to approach the duty Judge. Shortly thereafter, Mr Joukhador responded as follows:

17. [24]

    By email to Mr Joukhador sent about two hours later on the same day, the CSO requested that the entire court file in his possession or any copy of it be provided to the CSO by 5 pm that day so that the CSO could go through the documents and remove any confidential material and return the non-confidential material. In addition, a written undertaking that he not disclose the contents of any confidential material that he may have read or, if applicable, a warranty that he had not read the material was also sought, together with an undertaking not to provide the material to anyone else and, if that had occurred, disclosure of the persons to whom it had been provided. If Mr Joukhador was not willing to agree to those requests the CSO reiterated its intention to make an application to the Court the next day. Four minutes later, Mr Joukhador responded saying:

18. [25]

    About an hour later, the CSO emailed Mr Joukhador and, after noting the location of his office, requested that he deliver a copy of a thumb drive containing whatever electronic version of the court file he had in his possession to Auburn police station by 5:30 pm on 19 February 2025. It was also noted that the Commissioner required the provision of the undertakings previously requested.

19. [26]

    On 20 February 2025, the next day, after an email indicating that arrangements had been made to attend the duty judge’s courtroom at 10 am on that morning, Mr Joukhador sent an email at 9:11 am stating:

20. [27]

    On that same day, the defendant surrendered to police (who then delivered to the Crown Solicitor’s Office) a universal serial bus (USB) electronic storage device or flash drive that contained material that included copies of the confidential affidavits and of the unredacted search warrant applications.

21. [28]

    After further emails on 20 February 2025, Mr Joukhador sent an email to the CSO stating:

22. [29]

    On the afternoon of the same day, the CSO sent by email to Mr Joukhador a letter which acknowledged that a USB flash drive had been delivered to Auburn Police Station that morning and put him on notice that, subject to any objection he might make by 5 pm on 24 February 2025 or such later time as may be agreed, the flash drive would be inspected in order to identify material subject to public interest immunity (including the confidential evidence in support of that claim), that material would be removed from the flash drive (or if necessary the non-public interest immunity material would be transferred onto another drive) and the non-public interest immunity material would be returned to Mr Joukhador. After noting the persons who may have had access to the flash drive or a copy of its contents, the letter continued:

23. [30]

    On the same day, 14 minutes later Mr Joukhador responded saying:

24. [31]

    Mr Joukhador’s stated understanding was incorrect in that the material sought to be protected from disclosure included not only the redacted portions of the applications for the three search warrants but also the confidential affidavit evidence relied upon in support of the public interest immunity claim. This fact was once again, in effect, pointed out in the CSO’s response 19 minutes later which also reiterated the request for the information sought in the preceding letter.

25. [32]

    On 26 February 2025, six days later, the CSO sent to Mr Joukhador by email a form of written undertaking which it requested by signed and returned by 5 pm on 27 February 2025. Seven minutes later, Mr Joukhador responded saying:

26. [33]

    On the same day, 44 minutes later, the CSO responded to Mr Joukhador in the following terms:

27. [34]

    A response was sent by Mr Joukhador by email about two hours later. It involved him reiterating his position that there were only approximately two paragraphs of the applications for search warrants that were then currently the subject of public interest immunity and “[t]he balance of the documents in the court file are not be [sic] subject to any public interest immunity as agreed by the crown solicitors office”.

28. [35]

    On 27 February 2025 at 8:53 am, the CSO by email reiterated in effect that the relevant material included the confidential affidavit evidence and noted that the Commissioner asserted a claim of public interest immunity over the two confidential affidavits on the file including their exhibits in full. The email continued:

29. [36]

    By an email sent 10 minutes later, Mr Joukhador responded saying:

30. [37]

    The CSO responded by email 10 minutes later to Mr Joukhador stating:

31. [38]

    Mr Joukhador responded three minutes later by email the following terms:

32. [39]

    If Mr Joukhador’s response was intended to convey that he maintained his position that the confidential affidavit evidence formed part of the applications for the search warrants, then he was mistaken. The correspondence from the CSO, in my view, had attempted on various occasions to correct any such mistake on Mr Joukhador’s part. It is difficult to understand why Mr Joukhador maintained his mistaken position.

33. [40]

    Later on the same day at 11:08 am, the CSO sent an email to Mr Joukhador in the following terms:

34. [41]

    On 4 March 2025, five days later the CSO sent an email to Mr Joukhador noting that it had received no response to the email referred to in the preceding paragraph and informed him of the Commissioner’s instructions to commence proceedings urgently and attached by way of electronic service of summons, notice of motion and supporting affidavit. The email noted that, “[s]ubject to hearing from you prior, we intend to approach the duty judge at 2 pm today 4 March 2025.”

35. [42]

    Mr Joukhador responded to this email within about a minute saying that he wished to retain solicitors and counsel, could not attend and asked to have the matter adjourned for one week. The CSO responded stating that, unless a signed undertaking was provided in the terms sent on 26 February 2025, the present instructions were to approach the Duty Judge at 2 pm and commence proceedings.

36. [43]

    The summons by which the present proceedings were commenced was filed in court on 4 March 2025. On that occasion, Mr Joukhador did not appear and the Duty Judge granted interim relief.

37. [44]

    On 1 April 2025, Mr Joukhador’s solicitors served on the Commissioner an offer of compromise under r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The offer of compromise was in the following form and signed by Mr Joukhador’s solicitor:

38. [45]

    The offer of compromise was not accepted by the Commissioner.

39. [46]

    As noted above, on 27 May 2025 orders were made by consent disposing of the proceedings except in relation to costs. The terms of the consent orders have been set out above at [5].

Submissions

1. [47]

   The Commissioner sought that the defendant pay costs and submitted that the two general principles that should guide the Court in its costs determination were that costs are compensatory and not punitive and that costs should ordinarily follow the substantive event or result.

2. [48]

   The Commissioner also noted at one point that there was an additional issue, namely whether or not what the plaintiff achieved was inferior to what the defendant offered in his offer of compromise dated 1 April 2025.

3. [49]

   The Commissioner submitted in effect that the result of the proceedings as set out in the consent orders made on 27 May 2025 represented substantially what the plaintiff sought in the summons. In particular, it was effectively contended that the notations included in the orders of the Court made on 27 May 2025 substantially met the purposes of, and correspond with, the substance of what was sought in the summons.

4. [50]

   It was further submitted, that if the event was found to be mixed or equivocal, the conduct of the parties in the lead-up to the commencement of the proceedings, and/or during them, may be a relevant consideration that the Court will take into account.

5. [51]

   In effect, it was submitted that institution of the proceedings was necessary to obtain the undertakings or assurances in relation to non-disclosure of the information in the confidential affidavit evidence and the redacted portions of the search warrant applications. While Mr Joukhador had taken steps to return the Sidoti material and other parts of the file copied by Mr Sidoti, the defendant did not provide the undertakings or assurances as to non-disclosure.

6. [52]

   As to the defendant’s offer of compromise dated 1 April 2025, the Commissioner submitted that it was “not better than what the plaintiff ultimately secured, nor would have been an appropriate resolution of the proceedings.” A number of aspects of the offer of compromise were identified as “problematic”, including the plaintiff being required to agree to the Court’s noting of facts asserted by the defendant that were not known by the plaintiff or supported by any warranty of the defendant, one of which was not entirely accurate.

7. [53]

   The plaintiff also pointed to what was described in the written submissions to be “disentitling conduct” on the part of Mr Joukhador, if it were otherwise determined that he should have his costs paid by the Commissioner. That conduct included aspects of the defendant’s conduct and correspondence from 19 December 2024 in relation to these proceedings.

8. [54]

   Mr Joukhador submitted that he was entitled to his costs of the proceedings on the basis that the 1 April 2025 offer of compromise represented a more favourable outcome to the Commissioner than the result actually achieved by way of the consent orders made on 27 May 2025. The defendant relied on r 42.15A of the UCPR (or alternatively r 42.15). The outcome by way of the consent orders was said to be “no less favourable” to the defendant than the terms of the offer. This was said to be because the offer of compromise provided for orders against Mr Joukhador in proposed orders 2 and 4 whereas the consent orders made no order against him. The notations in the consent orders were said not to be an “event” for the purposes of r 42.1. In addition, the defendant contended that the matters raised by the plaintiff did not mean that the defendant should be deprived of his costs.

9. [55]

   The defendant also contended that the plaintiff had failed to discharge the burden of establishing a basis for depriving him of his costs and that various factors tended against the Court “ordering otherwise”, for the purposes of r 42.15A (or r 42.15). Those factors were said to include that:

   1. (1)

      the Commissioner’s pre-litigation conduct, including “changing requests for undertakings”, was unreasonable;

   2. (2)

      the undertakings sought and the summons was “ultra vires in that they sought to restrain Mr Joukhador’s lawful access to the entirety of the Court file in dispute”;

   3. (3)

      the result achieved was that “other than notations, the Summons was dismissed” and no orders were made against Mr Joukhador which “signifies that the intervention of the Court was never necessary”;

   4. (4)

      the notations in the consent orders as to the defendant’s warranties did not represent a change in position from that adopted in the email sent at 9:11 am on 20 February 2025;

   5. (5)

      Mr Joukhador may be able to obtain copies of the confidential affidavit evidence by a subpoena issued in other proceedings between Mr Joukhador and the State of New South Wales; and

   6. (6)

      “[t]here has never been any wrongdoing on the part of Mr Joukhador”.

10. [56]

    The defendant also made submissions concerning what were described as “Errors in the summons as to jurisdiction and authority” which focused upon the orders originally sought in these proceedings.

11. [57]

    Furthermore, it was submitted that the Commissioner’s application for costs should be rejected on the basis that there had been no hearing on the merits and thus there was no “event” to enliven r 42.1 of the UCPR.

Consideration

1. [58]

   The Court has a wide discretionary power in relation to costs under s 98 of the Civil Procedure Act 2005 (NSW) in a case such as the present. Both parties sought orders that the other pay their costs.

2. [59]

   It is appropriate to deal first with Mr Joukhador’s claim to be entitled to costs and then with the Commissioner’s claim.

3. [60]

   Mr Joukhador claimed to be entitled to his costs under r 42.15A of the UCPR. That rule provides:

4. [61]

   In the present case, an offer was made under r 20.26 of the UCPR by Mr Joukhador by way of the offer of compromise dated 1 April 2025, the terms of which have been set out above at [44]. The offer was not accepted by the Commissioner.

5. [62]

   The issue then arises whether Mr Joukhador obtained “an order or judgment on the claim no less favourable” to him than the terms of the offer. It should be accepted, in the present case, that a comparison between the offer of compromise and the consent orders is not a simple task as, for example, it might be if the only relevant comparison was between one sum of money and another. One reason for this is that the defendant’s offer of compromise sought to address the issues of concern by a mandated process and consequential orders whereas the consent orders disposing of the matter made on 27 May 2025 addressed the issues of concern in a different way, essentially by relying on warranties as to various matters.

6. [63]

   In my view, the defendant’s submission that simply because the offer of compromise provided for orders against Mr Joukhador and the consent orders did not contain any orders against him, the consent orders were “no less favourable” to Mr Joukhador than the terms of the offer should not be accepted. If r 42.15A is to be applied in the present case, it is necessary to look at the substance of both the offer and of the outcome actually achieved by way of the consent orders, in light of all the circumstances at the relevant times.

7. [64]

   The issues of concern underlying the present proceedings were that Mr Joukhador, his agent Mr Sidoti, his solicitor and potentially other persons had obtained, or had the ability to obtain, access to information from a court file to which they ought not to have access. The material on the court file and the information in it should not have been made available to Mr Sidoti for copying. That information included parts of applications for search warrants which attracted public interest immunity and the confidential affidavits relied on in support of the application for public interest immunity, which had previously been upheld.

8. [65]

   It is obvious that these issues did not relate to purely private interests of the parties. Serious issues affecting the public interest arose in the circumstances and involved protecting from disclosure:

   1. (1)

      information on the court file which had been found to attract public interest immunity; and

   2. (2)

      information on the court file provided to the Court on a confidential basis in order to allow the claims for public interest immunity to be determined on a fully informed basis.

9. [66]

   The Commissioner in the present case properly sought to uphold the significant public interest in ensuring that such information was not disclosed or likely to be disclosed and this was the purpose of the proceedings. Mr Joukhador did not have any right to have access, whether by himself or through any agent or other person acting on his behalf, to that information or to disclose it. Thus, he could not have been seeking to vindicate such rights in these proceedings. It appears that both sides accepted that the material to which access ought not to have been granted should be returned and secured, and any further disclosure of that material should be prevented.

10. [67]

    In these circumstances, given the purpose of the proceedings being to uphold the public interest and the fact that Mr Joukhador had no basis on which to oppose the relevant documentation being recovered and further disclosure of the information being prevented, it is difficult to perceive how any outcome which achieved those things could properly be said to be, in substance, favourable or “no less favourable” to him than any other process for achieving them.

11. [68]

    Accordingly, to the extent that both the consent orders and the offer of compromise were designed to ensure that the material to which access ought not to have been granted should be returned and secured, and any further disclosure of that material should be prevented, I do not accept that “the defendant obtain[ed] an order or judgment on the claim no less favourable to the defendant than the terms of the offer” for the purposes of r 42.15A. Consequently, the costs consequences which might flow under that rule do not arise in the present case.

12. [69]

    If I am wrong in that conclusion, it is necessary to consider whether the Court should exercise its discretion to order otherwise, as referred to in the chapeau to r 42.15A(2).

13. [70]

    The onus is on the party seeking the exercise of the discretion to order otherwise to demonstrate why the Court should depart from the consequence of the rejection of the offer of compromise: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 at [35] (McColl JA with Mason P and McClellan CJ at CL agreeing); Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 (Leach) at [45] (McColl JA with Gleeson JA and Sackville AJA agreeing).

14. [71]

    McColl JA said in Leach at [48]:

15. [72]

    Nonetheless, it is well established that in order for an offer of compromise made under the UCPR to attract an indemnity costs order, it must involve a “genuine offer of compromise” and not merely be made so as to trigger the costs consequences under the rules: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 (at [16]) (Spigelman CJ; Beazley and McColl JJA); Kramer v Stone (No 2) [2023] NSWCA 298 at [18] (Ward P, Leeming and Kirk JA).

16. [73]

    In my view, the offer of compromise in the present case did not involve a genuine element of compromise. Mr Joukhador was in a position, in effect, where he had no compromise to offer. As noted above, both sides accepted that the material to which access ought not to have been granted should be returned and secured, and any disclosure of that material should be prevented. The consent orders and the offer of compromise were in substance both designed to ensure that those outcomes were achieved.

17. [74]

    In addition, I am of the opinion that it was reasonable, or not unreasonable, for the Commissioner not to accept the offer of compromise. The terms of the proposed order 2(a) relating to Mr Joukhador in the offer of compromise contained a qualification which had the potential to undermine the effectiveness of the orders. Order 2(a) had the effect of prohibiting the defendant, his agents and legal representatives from accessing the Sidoti material or the relevant court file but was confined to where the access was “for the purposes of access to” the unredacted search warrant applications or the confidential affidavits (the protected material). Thus, the order would only prevent access to the Sidoti material if the person seeking access had the subjective purpose of gaining access to the protected material. If the Sidoti material were accessed for a different purpose but the person happened to access the protected material and read what it contained, that arguably would not breach the order.

18. [75]

    Similarly, proposed order 3 required the CSO, on behalf of the Commissioner, to assist the defendant, his lawyers and agents to identify the protected material from any copies of the Sidoti material that the defendant yet retained or had access to. This order envisaged the defendant retaining or having access to the Sidoti material as well as copies of that material and then the defendant and the CSO (who while acting for the Commissioner is not a party to the proceedings) together identifying the protected material in the Sidoti material and any copies of it. If this were done, there would be a substantial likelihood of the CSO being required to identify for the defendant and others the very protected material which ought not be disclosed to them. In addition, it would involve the risk that the CSO would be required to indicate where the protected material was and perhaps debate with the defendant or others whether it was protected material and why, before such documents were destroyed in accordance with proposed order 4. Such a process would involve a significant increase in the risk of inappropriate access and disclosure.

19. [76]

    Taking into account these considerations concerning the terms of the orders proposed in the offer of compromise, I am of the view that it would not have been unreasonable to fail to accept the offer of compromise.

20. [77]

    The absence of a genuine element of compromise and the problematic terms of the orders in the offer of compromise together lead me to conclude that, even if r 42.15A(1) were engaged in the present case, I would order under r 42.15A(2) that the plaintiff was not required to pay the defendant’s costs at all in these proceedings.

21. [78]

    The Commissioner’s claim for costs was put initially on the basis that costs should follow the event, in accordance with r 42.1 of the UCPR. However, as the defendant contended, the present proceedings were resolved by consent and there was no hearing on the merits and, accordingly, there was no “event” for the costs to follow. McHugh J explained the situation in Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (Lai Qin):

22. [79]

    These principles have been adopted and applied in a number of cases. Based on the reasoning in Lai Qin there are two considerations in the present case which are relevant:

    1. (1)

       Whether any party’s conduct was unreasonable either in prosecuting or defending the proceedings;

    2. (2)

       Whether one party was almost certain to have succeeded if the matter had been fully tried.

23. [80]

    I have set out in detail above at [15] to [45] aspects of the correspondence between the parties related to the proceedings. In my view, there was nothing in the correspondence or conduct on behalf of the Commissioner which could properly be described as unreasonable. The approach taken by the Commissioner often involved careful explanation of the position and a willingness to resolve, in a practical but principled manner, the issue of retrieval of the Sidoti material and all copies so that it could be examined to determine what should not have been made available and what steps should be taken to ensure that any of the relevant information in the protected material would not be disclosed. I do not accept that the Commissioner’s conduct involved making improper threats or was a “moveable feast”. The changes in position reflected a developing understanding of what had occurred and how the situation might be remedied.

24. [81]

    On the other hand, Mr Joukhador’s conduct involved aspects which caused me some concern. This included the fact that he apparently did not raise the issue of access to the unredacted search warrant applications and the confidential affidavits being mistakenly provided to his agent immediately after he became aware of it, the fact that although he was a party to the proceedings in which the public interest immunity claim was upheld on the basis of the material in the confidential affidavits he in effect gave the Commissioner an ultimatum in the letter of 19 December 2024 rather than offering to remedy the problem, the fact that he appeared to persist in asserting that the only material which should be of concern to the Commissioner was the redacted portions of the search warrant applications and not the confidential affidavits despite numerous explanations from the CSO, and a degree of general uncooperativeness demonstrated by, for example, his stating on 19 January 2025 “I don’t think we need to return the files” and his not appearing at the hearing before the Duty Judge on 4 March 2025. Notwithstanding my level of concern, if the reasonableness of the conduct of the parties were the only factor, I would not be satisfied that Mr Joukhador’s conduct was so unreasonable that, by itself, this would have justified a costs order being made against him.

25. [82]

    As to the second consideration, whether one party was almost certain to have succeeded if the matter had been fully tried, I have reached the conclusion that the Commissioner was always going to succeed in the present case. There was never asserted to be any proper basis on which the defendant was entitled to access the unredacted search warrant applications or the confidential affidavits on the court file or to disclose the information contained in that material. Whatever the position might be in relation to subpoenas issued on Mr Joukhador’s behalf in other proceedings he has brought against the State of New South Wales, in the present case it should be accepted that the material to which access ought not to have been granted should be returned and secured, and any disclosure of information in that material should be prevented. The correspondence and discussions between the parties was in substance about how those ends could be achieved. In those circumstances, this is one of the rare cases where, although there has been no determination on the merits, one party was certain, or at least almost certain, to have succeeded if the matter had been fully tried.

26. [83]

    That consideration, together with the degree of uncooperativeness of the defendant tending towards the unreasonable, justifies an order for costs being made in the plaintiff’s favour. Having regard, however, to the fact that the defendant did hand over the USB containing the Sidoti material before proceedings were instituted and took steps to instruct other persons who might have had the ability to access to that material not to access it, in my view the defendant should only be ordered to pay 80% of the plaintiff’s costs.

Orders

1. [84]

   For these reasons, the orders of the Court are:

   1. (1)

      The defendant is to pay 80% of the plaintiff’s costs.