04:03

Annika Smethurst’s lawyers have been urged to clarify their case on whether material copied from her phone was confidential to support her bid to force police to delete the information taken during the raid on her home.

On Tuesday the high court stood over oral submissions to Wednesday’s hearing to give Smethurst’s counsel time to clarify her case and consider seeking an order to prevent the use of material copied from her phone rather than its destruction.

Smethurst has asked the court for an injunction ordering the police to destroy material collected and copied from her phone on the basis the raid in June constituted trespass.

Smethurst’s counsel, Stephen Lloyd, was grilled repeatedly about how the court could order destruction of documents, without a breach in equity such as a breach of confidence.

Chief justice Susan Kiefel said that a breach of confidentiality could result in destruction of confidential material but noted “that’s not this case” and the plaintiffs had “never said the information was confidential to the plaintiff”, an observation echoed by Justice Patrick Keane.

Justice Geoffrey Nettle noted that trespass could result in damages but asked what grounds Smethurst had to ask for destruction of the information “if it is not confidential – and it doesn’t sound like it is [confidential] to you”.

Lloyd responded that damages were “not an adequate remedy” and although the plaintiffs hadn’t asserted breach of confidence the court should undo the wrong of material being “forcibly taken from the phone” through the torts of trespass and conversion.

Kiefel suggested some of the material may be confidential depending on its “ultimate source” and queried whether a negative injunction ordering the police not to use the information would be sufficient. Lloyd said that it may be.

Lloyd then changed tack, arguing that copied material is confidential in the sense that “it’s on their own phone and they’re the only one that can access it”.

After a short break, the court returned and Kiefel suggested it stand over submissions on relief so that Smethurst’s counsel could consider their position further.

Lloyd suggested on Wednesday he may shift Smethurst’s case to seek a negative injunction preventing police using material seized and copied, rather than its destruction.

Kiefel replied that Lloyd would still have to examine the “underlying cause [of action]” and warned “the basis for a negative or mandatory injunction needs to be dealt with with a good degree of particularity tomorrow morning”.