Youssef Hadid v Sheriff of New South Wales

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.

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:

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).

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.

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

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:

Mr Hopper refused, saying:

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. .

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:

Mr Temurcuoglu is said to have responded:

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:

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”.

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.

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.

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:

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.

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.

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:

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.

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.

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.

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.

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.

The only order I make is that the proceedings are dismissed