DVI v ZTT

Case •

[2021] NSWCATEN 4

•

28 April 2021

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DVI v ZTT [2021] NSWCATEN 4
Hearing dates: On the papers
Date of orders: 28 April 2021
Decision date: 28 April 2021
Jurisdiction:Enforcement
Before: Armstrong J, President
Decision:

(1) A hearing is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The amended application lodged on 11 August 2020 seeking the referral to the Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) of the alleged contempt by the respondent is dismissed.

(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the parties, and of persons giving evidence in these proceedings (except for the respondent’s legal representative), is prohibited.

Catchwords:

PRACTICE AND PROCEDURE – contempt – application for referral to Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 – allegation that respondent failed to appear to give evidence in Tribunal proceedings in answer to summons – whether matter capable of amounting to contempt – no valid service of summons - referral not ordered

Legislation Cited:

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

District Court Act 1973 (NSW)

Evidence Act 1995 (NSW)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules (NSW)

Cases Cited:

Allianz Australia Insurance Limited v Yu (No 1) [2020] NSWSC 1914

ASIC v Sigalla (No. 4) [2011] NSWSC 62

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88

Bott v NSW Land and Housing Corporation (No 2) [2018] NSWCATCD 2

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Burns v Corbett [2015] NSWCATAD 188

Burns v Sunol [2018] NSWCATAD 109

Capaan v Joss Managing Director Westpac (No 2) (unreported, NSWCA, 6 June 1994)

Carr v Larussa Custodian Services Australia Pty Ltd [2017] WASC 42

Council of the Law Society of NSW v CZD [2017] NSWCATOD 153

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

DVI v Children’s Guardian [2020] NSWCATAD 150

NSW Bar Association v Harkin [2015] NSWCATOD 111

EJH v Independent Liquor and Gaming Authority [2021] NSWCATAD 7

EEZ v TAFE NSW [2020] NSWCATAD 35

Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309

Killen v Lane [1983] 1 NSWLR 171

Legal Services Commissioner v DRA (No 2) [2018] NSWCATOD 195

Marubeni Equipment Finance (Oceania) Pty Ltd v Harris [2018] VCC 267

Matthews v ASIC [2009] NSWCA 155

Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046

Mohareb v Palmer [2017] NSWCA 281

Mohareb v Palmer (No. 4) [2017] NSWDC 127

O’Connor & Ors v Hough & Ors (No 2) [2017] QSC 68

Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105

Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459

Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33

Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 31

Turner v Department of Justice [2016] NSWCATAD 146

Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181

Wallace v GWH Build Pty Ltd; GWH Build Pty Ltd & Anor v Wallace & Ors [2016] NSWDC 51

Witham v Holloway (1995) 183 CLR 525

Texts Cited:

None cited

Category:Principal judgment
Parties: DVI (Applicant)
ZTT (Respondent)
Representation:

For Applicant:
EQQ (Agent)

For Respondent:
D Kell SC (Counsel)
Crown Solicitor (Solicitor)
File Number(s): PC 20/28079
Publication restriction:

The disclosure of the names of the parties, and of persons giving evidence in these proceedings (except for the respondent’s legal representative), is prohibited.

Note: A reference to the name of the person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

  1. If “it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal, the Tribunal may refer the matter to the Supreme Court for determination”: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 73(5). The applicant (DVI) asks the Tribunal to refer the respondent (ZTT) to the Supreme Court for contempt under s 73(5), alleging that the respondent failed to answer a summons issued by the Tribunal to appear and give evidence in proceedings in the Administrative and Equal Opportunity Division (AEOD) of the Tribunal.

  2. Those Tribunal proceedings were administrative review proceedings brought by DVI against the Children’s Guardian, concerning the revocation by the Guardian of DVI’s Working with Children Check Clearance (WWCCC). The actions of the Children’s Guardian related to alleged incidents of harm to a child of CWB, the then partner of the applicant. DVI was successful in those proceedings and the Tribunal ordered that DVI be issued a WWCCC: [2020] NSWCATAD 150.

  3. During the course of those Tribunal proceedings and on the application of DVI, the Tribunal issued a summons to the respondent to appear and give evidence on 25 February 2020. The respondent did not appear to give evidence at the hearing held on 24 and 25 February 2020. Whether the respondent’s conduct is capable of amounting to contempt of the Tribunal falls to be determined. It is only where the conduct in question is capable of being so characterised that the Tribunal must then decide whether to exercise its discretion to refer the matter under s 73(5).

  4. For the reasons that follow, the Tribunal is not satisfied that the conduct the subject of the allegations in DVI’s referral application is capable of amounting to contempt of the Tribunal, and, accordingly, the Tribunal has decided to dismiss the application for referral under s 73(5) of the NCAT Act.

Relevant legal principles

  1. The NCAT Act establishes two procedures for dealing with contempt of the Tribunal. The first, under s 73(1), is limited to cases where contempt is committed in the face of, or in the hearing of, the Tribunal. The second procedure, under s 73(5), involves a reference of the matter to the Supreme Court for determination. The procedure under s 73(5) applies where there is no jurisdiction for the Tribunal under s 73(1) because the contempt is not in the face of or in the hearing of the Tribunal, or because a referral to the Supreme Court is otherwise appropriate.

  2. When non-compliance with a court subpoena to testify has been found to be a contempt, the Supreme Court has characterised the contempt as other than in the face of or hearing of the Court: see e.g. Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459. Accordingly, the present matter potentially involves contempt of the Tribunal not in the face or in hearing of the Tribunal. Because the Tribunal does not have authority to hear and determine contempt proceedings other than when there is contempt in the face or in the hearing of the Tribunal, the ultimate issue in the present circumstances is whether the Tribunal should exercise the discretion in
    s 73(5) of the NCAT Act to refer this matter to the Supreme Court for determination.

  3. Section 73(5) of the NCAT Act is in very similar terms to s 203 of the District Court Act 1973 (NSW) and therefore cases interpreting that provision are relevant: Burns v Corbett [2015] NSWCATAD 188 at [58]–[61]. Under s 73(5) and s 203(1) if “it is alleged, or appears to [the District Court or Tribunal] on its own view, that a person is guilty of contempt of [the Court or of the Tribunal]”, the Court or Tribunal may refer the matter to the Supreme Court for determination”. It is not the Tribunal’s role to determine whether a person is guilty of contempt. In Mohareb v Palmer [2017] NSWCA 281 at [19], the Court of Appeal (Basten JA; Sackville AJA agreeing) approved of Gibson DCJ’s statement that:

“For the power under s 203 to be exercised, there must be a finding by the court of conduct capable of amounting to contempt of court.”

  1. If that finding is made, the Tribunal must give the person alleged to be in contempt (contemnor) an opportunity show why the matter should not be referred to the Supreme Court, although that opportunity is limited to the issue of reference to the Supreme Court, and does not require the person the subject of the application for referral to waive his or her right to silence. The person should be informed that he or she is entitled to remain silent: Maniam. Whether the alleged contemnor had a reasonable excuse for the act or omission would also need to be considered: Maniam; and s 73(2) of the NCAT Act.

  2. Finally, the Tribunal may, in the exercise of the discretion, refer the matter to the Supreme Court for determination: Burns v Corbett at [61]; Mohareb v Palmer [2017] NSWCA 281 at [22]; Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 at [30]. Underlying this procedure is the consideration that the power to punish for contempt is one to be used sparingly and only in serious cases: Mohareb v Palmer (No. 4) [2017) NSWDC 17 at [82].

  3. Where the potential contempt concerns breach of Tribunal orders, the Tribunal indicated in Burns v Corbett at [92] that, where there are alternative means of enforcing orders of the Tribunal, a proper exercise of the discretion under s 73(5) should take into account the availability of these alternatives and whether any of them has been invoked already. The Tribunal stated further at [93]:

“Moreover, any exercise of the power under s 73(5) must be consistent with the purpose for which it has been conferred. From the reasoning of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 and also Witham v Holloway (1995) 183 CLR 525 at 532-534, it can be seen that the purpose of referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court to be determined is at least twofold. The first is to have the Tribunal’s orders enforced for the benefit of the applicant who originally obtained those orders. The second is to protect the effective administration of justice by demonstrating that the Tribunal’s orders will be enforced.”

  1. To make out a contempt for breach of a court order at common law, courts have accepted that: (i) it is necessary to establish that the alleged contemnor had notice of the order; (ii) the obligation imposed by the order is sufficiently clear to support enforcement of the order against the person; and (iii) the conduct of the alleged contemnor amounted to a wilful, as opposed to a “casual, accidental or unintentional”, failure to comply with the order: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at [111]-[113]; also see Witham v Holloway (1995) 183 CLR 525 at [530]; Turner v Department of Justice [2016] NSWCATAD 146.

  2. Following any referral by the Tribunal to the Supreme Court, the liability of the alleged contemnor is determined by the Supreme Court in separate proceedings commenced by the Prothonotary of the Supreme Court, pursuant to a direction of the Court under the Supreme Court Rules 1970, Pt 55, r 11.

Issues

  1. The questions in this matter, and my answers to those questions in brackets, are as follows:

  1. Is the conduct in question capable of amounting to contempt? (No, and it is therefore not necessary to consider whether to exercise the discretion in s 73(5) of the NCAT Act.)

  2. Should the non-disclosure order in relation to the names of the applicant and the respondent in these proceedings be continued, or another non-disclosure order made? (Yes.)

Application for referral and brief procedural history

  1. The decisions, and reasons for decision, in DVI v Children’s Guardian [2020] NSWCATAD 150 were published on 11 June 2020. DVI lodged an application with the Tribunal on 26 June 2020 asking that the respondent be held in contempt as a witness who failed to answer a summons to appear and give evidence in the Tribunal proceedings reported in those reasons for decision.

  2. By an amended application dated 11 August 2020, the applicant asks that the respondent be referred to the Supreme Court for contempt of the Tribunal, on the basis that the respondent failed to appear before the Tribunal on 25 February 2020 in answer to a summons served upon the respondent on 29 January 2020.

  3. A grant of representation was given to the applicant to appear through an agent (EQQ) under s 45(1)(b)(i) of the NCAT Act. A grant of legal representation was given to the respondent under s 45(1)(b)(ii) of the NCAT Act. The Tribunal noted, in procedural orders and directions made to progress the referral application, that the respondent is not required to give evidence or make submissions as to the alleged contempt, in accordance with the respondent’s right to remain silent. Orders and directions were also made by the Tribunal in relation to the anonymisation (or non-disclosure) of the names of the applicant, and later also the respondent, on an interim basis.

  4. In support of the referral application, the applicant has filed three affidavits, namely: affidavit of DVI, sworn 12 January 2021; affidavit of EQQ (also the applicant’s agent), sworn 13 January 2021; and affidavit of CBW, sworn 13 January 2021.

  5. Four affidavits have been filed on behalf of the respondent, namely: affidavits of ZTT, affirmed 15 October 2020 and 25 February 2021 respectively; affidavit of ZTT’s work manager, affirmed 25 February 2021; and affidavit of Kathryn Lockery from the Crown Solicitor’s Office, sworn 26 February 2021.

  6. The Tribunal also has written submissions before it: the applicant’s submissions dated 10 August 2020; the respondent’s submissions in support of an application for legal representation dated 6 October 2020; the applicant’s submissions opposing a grant of legal representation to the respondent dated 5 and 12 October 2020; the respondent’s submissions dated 15 October 2020, and those dated 26 February 2021 (and lodged with the Tribunal on 1 March 2021); the applicant’s further written submissions dated 5 March 2021; and further written submissions for the respondent dated 5 March 2021 (and lodged with the Tribunal on 8 March 2021).

Determination on the papers

  1. The parties had an opportunity to make submissions to the Tribunal as to whether the referral application, together with any request for ongoing anonymisation orders, could be determined on the papers, that is, in the absence of the parties and without a hearing, under s 50 of the NCAT Act. The applicant did not make any submissions. The respondent submitted that the Tribunal can appropriately determine the referral application on the papers, pursuant to s 50 of the NCAT Act.

  2. The respondent said this is so for the following reasons. First, consistently with s 50(2) of the NCAT Act, the issues for determination can be adequately determined in the absence of the parties by considering the written submission and affidavits lodged with the Tribunal. The Tribunal has relevantly made procedural directions, at various times, and the applicant and respondent have each filed the evidence upon which they rely, including with annexed documents, and lodged written submissions. Procedural fairness has already been accorded, and a hearing is not required for this purpose. Moreover, properly viewed, on the evidence there are no real legal or factual points of contest arising. Thus, relevant to the question of whether there was valid service of the summons on the respondent, even on the applicant’s affidavits there is no evidence to the effect that the respondent consented to service by email.

  3. Secondly, the nature of a referral application, properly understood, tends firmly against the holding of a contested inter partes hearing. The referral power under s 73(5) of the NCAT Act is in the nature of a “ministerial power”, as evident by analogy from the NSW Court of Appeal’s judgment in Killen v Lane [1983] 1 NSWLR 171 at [177] and subsequent decisions cited by the respondent: Capaan v Joss Managing Director Westpac (No 2) (unreported, NSWCA, 6 June 1994); Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105 at [17]-[19] (Handley AJA); Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309 at [18]-[21] (Ipp JA; Spigelman CJ and Beazley JA agreeing), [35]-[38] (Spigelman CJ); Burns v Corbett [2015] NSWCATAD 188 at [58]; Turner v Department of Justice [2016] NSWCATAD 146 at [23]-[25]. The respondent also refers to Bott v NSW Land and Housing Corporation (No 2) [2018] NSWCATCD 2 at [23]. The respondent submits that the Tribunal is thus not dealing with inter partes proceedings in the strict sense, and the applicant is not formally a “party” as traditionally understood. While the procedure provided by the Tribunal, including the application for referral made by the applicant, is a convenient means by which information can be drawn to the attention of the Tribunal, it would be consistent with the ministerial nature of the referral power sought to be exercised for the Tribunal to dispense with a hearing in the matter.

  4. After having regard to the respondent’s submissions, including the nature of the referral power in s 73(5) as akin to a ministerial (or executive) power the Tribunal is satisfied that the issues arising from the referral application, including whether any ongoing anonymisation orders should be made, can be determined adequately in the absence of the parties on the basis of the material and submissions lodged by them, and that therefore this matter can be appropriately dealt with on the papers.

Onus and standard of proof

  1. The onus is on the applicant to prove the facts which demonstrate the conduct in question is capable of amounting to contempt of the Tribunal. The rules of evidence apply in these proceedings, being proceedings in the exercise of the Tribunal’s enforcement jurisdiction: NCAT Act, ss 38(3), 33.

  2. The NCAT Act does not expressly provide for the standard of proof that is to apply in the referral proceedings under s 73(5). (This can be contrasted with civil penalty proceedings under the NCAT Act; s 77(6) provides that such proceedings are to be determined on the balance of probabilities, that is the civil standard of proof.)

  3. It is well established that, even in civil contempt proceedings, the criminal standard of beyond reasonable doubt ultimately applies. In Witham v Holloway [1994] HCA 3; (1995) 183 CLR 525 at [19], the High Court found that the illusory differences between civil and criminal contempt do not justify different standards of proof. The purpose of contempt proceedings is the same in both civil and criminal matters: to punish the contemnor for the breach: per McHugh J at [15]. The gravity of proceedings is reflected in the higher standard of proof: Wallace v GWH Build Pty Ltd; GWH Build Pty Ltd & Anor v Wallace & Ors [2016] NSWDC 51 at [152].

  4. In ASIC v Sigalla (No. 4) [2011] NSWSC 62 White J reasoned that the decision in Witham v Holloway was displaced upon the commencement of the Evidence Act 1995 (NSW), and therefore in civil proceedings proof on the balance of probabilities is necessitated by s 140. White J’s approach has not been commonly applied: Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 at [114]-[115] (Ward CJ in Eq); Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 at [116]-[118] (Ward CJ in Eq). The prevailing standard of proof in NSW and across Australia in civil contempt proceedings is “beyond reasonable doubt”: Matthews v ASIC [2009] NSWCA 155 at [27]; Marubeni Equipment Finance (Oceania) Pty Ltd v Harris [2018] VCC 267 at [12]; Carr v Larussa Custodian Services Australia Pty Ltd [2017] WASC 42 at [8]; O’Connor & Ors v Hough & Ors (No 2) [2017] QSC 68 at [21].

  1. The Tribunal has not had the benefit of submissions from the parties on the question of the standard of proof that should be applied in the current proceedings. As earlier stated, these proceedings do not involve contempt in the face of or in the hearing of the Tribunal where s 73(1) applies. The task of the Tribunal is instead to determine, under s 73(5), whether the matter has sufficient “substance” to warrant referral to the Supreme Court for determination on the standard of proof of beyond reasonable doubt: Wallace v GWH Build Pty Ltd at [155]. It is unclear whether, in making its referral to the Supreme Court, the Tribunal is required to be satisfied on the balance of probabilities as provided for in s 140 of the Evidence Act 1995 (NSW), or to the same standard by which the Supreme Court would make its ultimate determination (if the matter were referred), that of beyond reasonable doubt.

  2. The Tribunal has earlier expressed some divergent views on the standard of proof to be applied in referral proceedings. In several decisions, it has been suggested that the criminal standard of beyond reasonable doubt applies: Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 31 at [10]; Burns v Corbett [2015] NSWCATAD 188 at [89]. On other occasions, the Tribunal has cited the Briginshaw standard as the applicable approach in making a referral to the Supreme Court: Burns v Sunol [2018] NSWCATAD 109 at [22]; Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181 at [23]. In proceedings under s 73 of the NCAT Act, the Tribunal is to apply “the rules of evidence”, which might be taken to suggest that s 140 of the Evidence Act provides the applicable standard of the balance of probabilities (and incorporating the Briginshaw considerations at s 140(2) of the Evidence Act).

  3. It is not necessary for the Tribunal to decide the standard of proof that should be applied in these referral proceedings. As will be apparent in my reasons below, the criminal standard of beyond reasonable doubt has not been satisfied. If the correct standard of proof is the civil standard, it also has not been met; I cannot form the view, on the balance of probabilities, that conduct capable of amounting to contempt has been proved.

Material facts

  1. On the evidence before the Tribunal, my findings on the material facts are as follows:

  1. On 12 June 2019, the applicant’s agent (EQQ) telephoned the respondent at the respondent’s place of work to inform the respondent of the administrative review proceedings before the Tribunal, and asking if the respondent would give evidence in the Tribunal hearing without a summons. The respondent told the agent that the agent should speak to the respondent’s work manager. The respondent did not agree to give evidence without a summons and did not give consent to be served with any documents relating to the NCAT proceedings by email.

  2. The agent spoke to the respondent’s work manager that same day about whether the respondent would attend NCAT voluntarily or whether a summons would be required. The work manager told the agent that a summons to attend would be required. The manager provided the manager’s work email address and asked that the agent correspond with the manager, and not with the respondent, in relation to the Tribunal proceedings.

  3. The applicant’s agent and the respondent’s work manager did not discuss the manner of service of any summons that may be issued to the respondent, and in particular, the manager was not asked and did not consent to service of a summons via email. Neither the applicant nor the agent assert that there was any conversation between the agent and the respondent’s work manager to the effect that the respondent consented to service of a summons by email.

  4. There were emails exchanged between the agent and the respondent’s work manager on 12 and 13 June 2019. No consent to service of a summons by email was given in those emails.

  5. There was no communication between the applicant or the agent with the respondent or the respondent’s work manager between 13 June 2019 and the sending of an email by the agent to the respondent’s work email account on 29 January 2020.

  6. Between 25 November 2019 and 14 April 2020, the respondent was on workers compensation leave from work. Work attendance records for the respondent confirm this period of workers compensation leave.

  7. In the period of the workers compensation leave, the respondent attended the workplace on limited occasions and for limited purposes including completing relevant WorkCover forms. On one of those occasions in late January or early February 2020, the respondent was seen at that workplace by CWB, former partner of the applicant and a person giving evidence in these proceedings.

  8. A medical certificate provided by the respondent confirms that the respondent was unfit for work from 16 December 2019 to 15 April 2020.

  9. The respondent’s evidence is that, consistently with medical advice given to the respondent, the respondent did not access or read any work-related emails sent to the respondent’s work email account whilst on leave. The respondent did not access work emails at home. There was no expectation from the work manager that the respondent would read work emails whilst on leave. In any event, the respondent did not have a work-issued mobile phone at home on which to read work emails, and did not have access to work emails on the respondent’s home computer.

  10. There was no automatic “out of office” message on the respondent’s work email address. The respondent’s evidence is that this is because the transition to taking leave on 25 November 2019 was sudden, and the respondent did not arrange for an automatic “out of office” email to be generated when emails were sent to the respondent’s work email account during the period the respondent was on leave.

  11. The work manager’s evidence is that there was no expectation that employees in a role such as that performed by the respondent would read their work emails outside of working hours or whilst on leave. Moreover, in light of the respondent’s absence from work on workers compensation leave, the work manager did not expect that the respondent would read the respondent’s work emails whilst on leave.

  12. The agent’s evidence is that, on 29 January 2020, the agent telephoned the respondent’s place of work, where a female voice answered the agent’s call and confirmed that the respondent was still working there. At the agent’s request, that person gave the agent the respondent’s work email address. The agent asked the person to inform the respondent that the agent would be emailing to the respondent an “important document as discussed with [the respondent’s] manager earlier”. The agent was told the message would be relayed to the respondent.

  13. On that day, the agent sent an email to the respondent’s work email account, attaching a summons to appear and give evidence on 25 February 2020 issued by a Registrar of the Tribunal.

  14. The respondent was not personally served with a copy of the summons.

  15. The agent contacted the respondent’s work office on 20 February 2020 and was told that the respondent was still working there, but due to go on leave. The agent sent a further copy of the summons by email on that day, requesting that the respondent be available to give evidence on 25 February 2020, and offering to reimburse any expenses incurred. The agent sent a further email on 24 February 2020 advising of a change in the time the respondent should attend the Tribunal hearing.

  16. The agent’s evidence is that “at no time did the respondent communicate to [the agent], either directly or through the work manager, that the respondent would not accept service of the summons by email”.

  17. The respondent did not appear and did not give evidence at the Tribunal hearing on 25 February 2020.

  18. The respondent returned to work on 15 April 2020, two days per week. The respondent’s evidence is that the respondent reviewed work emails starting with the most recent, and that the respondent saw the emails from the agent on 21 April 2020. According to the respondent, this was the first time that the respondent knew of the sending of the summons to the respondent’s work email address, or that the Tribunal proceedings had been listed for 24-25 February 2020. The respondent forwarded the agent’s email to the respondent’s work manager that day.

  19. According to the work manager’s evidence, this was also the first time that the work manager became aware of the summons. The work manager sought legal advice and telephoned the NCAT Registry to ascertain the status of the proceedings in relation to which the summons had been issued.

Is the conduct in question capable of amounting to contempt of the Tribunal?

  1. Whether the respondent’s conduct the subject of the allegations is capable of amounting to contempt of the Tribunal involves, as a starting point, consideration of whether the summons in question was properly served on the respondent.

Was the summons properly served on the respondent?

Submissions

  1. The applicant’s submissions contain a considerable amount of material that is not relevant to the issues for determination in this matter. While the applicant is represented by an agent, the applicant is not legally represented. Bearing this in mind, and noting that the applicant’s submission lack some precision, the relevant arguments put forward by the applicant would seem to be as follows:

  1. Service at the respondent’s work place was almost impossible - the respondent hindered the process of service (whether deliberate or not) by refusing to communicate with the applicant’s agent directly, and the evidence filed by the respondent with regard to the respondent’s period of leave, and the absence of an email message on the respondent’s work email account to indicate that the respondent was not available at work, rendered the respondent uncontactable.

  2. While the respondent did not give explicit consent for the summons to be served by email, it was reasonable for the applicant to assume that the respondent implicitly consented to service of the summons by email. The applicant had no reason to suspect that the respondent was not at work, or would not access and read work emails. There is credible evidence that the respondent was seen in her workplace, there were assurances by staff that the respondent was at work, and there was no “out of office” message on the respondent’s work email account.

  3. The respondent has not produced evidence (such as computer and email access records, policy documents, and medical reports) to substantiate the respondent’s claim that the respondent did not access the respondent’s work email account whilst on leave.

  4. If the applicant had suspected the respondent would claim invalidity of service of the summons, the applicant would have sought direction from the Tribunal and if possible sought an order under r 15 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) to have the respondent served with the summons.

  5. The Tribunal has the power to determine that service on the respondent of the summons is valid and the Tribunal should do so given all the circumstances.

  1. The respondent submits that:

  1. There was no valid service of the summons in question. Service of documents in relation to Tribunal proceedings is governed by Pt 4 of the NCAT Act. Rule 13(2)(g) provides that means for service or giving of notices and documents by email is where a person consents to service by that method. Alternatively, under r 13(2)(i), the Tribunal or a registrar can direct that service occur, in a particular case, in another manner. Rule 15 is relevant to substituted and informal service.

  2. With respect to the applicant’s assertion that the respondent was served with the summons on two occasions by email “as permitted by NCAT Rules”, r 13(2)(g) permits service by email only in a case of a person who has consented to electronic service by means of an email address. Even on the evidence of the applicant’s witnesses, no such consent, as required by r 13, was given. Consent was not given expressly, nor could any conversation or conduct be taken to have amounted to imply consent.

  3. Further, there is no evidence that the applicant sought, from the Tribunal, any direction under r 15, either before or after the summons was sent to the respondent. It seems likely that the applicant and the applicant’s agent simply failed to appreciate that consent was required for valid service by email.

  4. As there was no valid and effective service of the summons on the respondent, there was, for this reason alone, no obligation on the respondent to attend the Tribunal in response to the summons. In such circumstances, there could be no suggested contempt by the respondent in failing to attend the Tribunal hearing on 25 February 2020.

  5. Further, the respondent submits that it is apparent from the evidence that the respondent was not aware that a summons had been sent to the respondent’s work email address and did not become aware of this until 21 April 2020 after returning from workers compensation leave.

  6. In the circumstances, the respondent submits that the Tribunal could not be satisfied that the conduct the subject of the allegations is “capable of amounting to contempt”: Mohareb v Palmer [2017] NSWCA 281 at [20]; Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 at [30]. As such, the Tribunal would not be justified in referring the matter to the Supreme Court pursuant to s 73(5) of the NCAT Act.

Consideration

  1. Any application for referral to the Supreme Court, if made out, has potentially serious consequences for the subject, including deprivation of liberty, monetary and other penalty. Given potentially adverse consequences for the alleged contemnor, strict compliance with rules of procedure is required.

  2. In the current matter, the onus of proof is on the applicant to prove that proper service of the summons was effected in any one of the ways provided for, or permitted or authorised by, the NCAT Act and Rules.

  3. The summons in question was issued by the Registrar under s 48 of the NCAT Act, on the application of DVI as a party to the administrative review proceedings referred to earlier. Rule 34 governs the issue of summons. Rule 13 provides for the ways in which such a summons may be served on the recipient, and is set out in full in the Annexure to these reasons. Rule 13(2) includes:

(2)   Means for service or giving of notices and documents A notice or document may be served on or given to a person or body—

…

(g)   in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body—by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number, or

…

(i)   in such other manner as the Tribunal or a registrar may direct in a particular case. (bold added)

  1. Rule 15 provides as follows:

15   Substituted and informal service generally

(1)   If a document that is required or permitted to be served on a person in connection with any proceedings before the Tribunal—

(a)   cannot practicably be served on the person, or

(b)   cannot practicably be served on the person in the manner provided by law,

the Tribunal or a registrar may direct that, instead of service, such steps be taken as are specified by the Tribunal or registrar for the purpose of bringing the document to the notice of the person concerned.

(2)   The Tribunal or a registrar may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3)   If steps have been taken, otherwise than under a direction under this rule, for the purpose of bringing the document to the notice of the person concerned, the Tribunal or a registrar may direct that the document be taken to have been served on that person on a date specified by the Tribunal or registrar.

  1. NCAT Procedural Directions must also be complied with by parties and their representatives: NCAT Act, s 26(4). Procedural Direction 1 “Service and Giving Notice” and Procedural Direction 2 “Summonses” address service of a summons. Where a summons is issued on the application of a party, that party must serve the sealed summons and any accompanying documents on the person named in the summons by the date and time for service specified in the summons: par 16, Procedural Direction 2. The ways in which a summons can be served are covered in r 13 of the NCAT Rules: pars 20–21, Procedural Direction 2. This Procedural Direction states at par 22 that “if difficulties are experienced in serving a summons a party can ask the Tribunal or a registrar to make a direction as to how to serve the summons”. Procedural Direction 1 gives information about substituted and informal service (at pars 20–23), reflecting the terms of r 15.

  2. There is no dispute about the following: no express consent was obtained from the respondent to service by email for the purposes of r 13(2)(g); no direction was sought from the Tribunal or registrar under r 13(2)(i); no order or direction for substituted or informal service of the summons was sought, nor made, by the Tribunal or registrar under r 15.

  3. The applicant argues that valid service of the summons was virtually impossible, and/or that the respondent’s consent to service by email can be implied from all the circumstances. As to the first point, there is no evidence before the Tribunal that the applicant, or any person on behalf of the applicant, attempted to effect personal service and was thwarted in such attempt by the respondent or the respondent’s work manager. There is also no evidence to indicate that the other forms of service provided for in r 13 were not possible (or that they were attempted and thwarted by the respondent or the respondent’s work manager). Further, there is no suggestion that the Tribunal failed to respond to a request from the applicant that a direction or order be made under either r 13(2)(i) or r 15 for any form of substituted or informal service. I do not accept the applicant’s argument that service by any of the methods provided for, or authorised by, the NCAT Rules (and NCAT Procedural Directions) was “virtually impossible”, or otherwise not practicable.

  4. As to the second point, I do not accept the applicant’s argument that the respondent impliedly consented to service of a summons to appear and give evidence by sending such a summons to the respondent’s work email account. On the evidence of both the applicant and respondent, there was no discussion of the means by which any summons to attend and give evidence at the upcoming Tribunal hearing may be served or otherwise brought to the attention of the respondent, nor was there any discussion about service of such a summons by email.

  5. Given the serious nature of contempt proceedings and potentially adverse consequences for the respondent if a referral to the Supreme Court is made, the applicant needs to demonstrate that the Tribunal’s procedural requirements have been observed in relation to the summonsing of a witness to attend and give evidence at the Tribunal. The applicant has failed to discharge the evidential onus, whether the standard of proof adopted is beyond reasonable doubt, or on the balance of probabilities under s 140 of the Evidence Act. There was no valid and effective service of the summons on the respondent under the NCAT Act, NCAT Rules and NCAT Procedural Directions and therefore no proper service.

  6. The applicant nonetheless submits that the Tribunal has the power to determine that service on the respondent is valid and that the Tribunal should do so given all the circumstances. No authority is provided on this point. The applicant seems to be asking the Tribunal to accept that some type of informal service of the summons occurred on 29 January or 20 February 2020 (being the two dates on which the summons was emailed to the respondent’s work email account). It is not clear whether the applicant’s submission is based on r 15(3) of the NCAT Rules, although there was (and is) no application asking the Tribunal to give a direction under r 15(3) for deemed service of the summons.

  1. Rule 15(3) is potentially engaged if steps have been taken (otherwise than by a direction under r 15(1) or (2)), for the purpose of bringing the document in question to the notice of the person concerned. The Tribunal (or registrar) may direct that a document is taken to have been served on the respondent on a date specified by the Tribunal. Before the Tribunal directs that “deemed service” has occurred under r 15(3), it should be satisfied that reasonable attempts at service were made, or that the efforts made were effective, in all probability if not certainty, to bring the knowledge of the requirements of the summons to the intended recipient. In NSW Bar Association v Harkin [2015] NSWCATOD 111 at [17] the Tribunal said that the summons under discussion may be “taken to have been served” for the purposes of r 15(3), in circumstances where attempts at service were unsuccessful and the applicant satisfied the Tribunal that reasonable attempts at service had been made. In the case of a summons, a direction under r 15(3) would usually be sought, and made, before the relevant Tribunal hearing to which the summons related took place.

  2. It is noted that r 15 is based on r 10.14(1) – (3) of the Uniform Civil Procedure Rules (NSW). Where a person seeks an order from the Supreme Court for substituted or “deemed” service under r 10.14, the person would generally need to prove that reasonable steps have been taken for the purpose of bringing the document in question to the attention of the recipient, or that the intended recipient knew of the contents of the document: see e.g. Allianz Australia Insurance Limited v Yu (No 1) [2020] NSWSC 1914.

  3. I cannot see any basis on which the Tribunal could determine that some type of informal service of the summons had occurred on 29 January or 20 February 2020, whether under r 15(3) of the NCAT Rules or otherwise, after the Tribunal proceedings to which the summons related were heard and after those proceedings were finalised.

  4. It is also noted that there is no evidence before me that the applicant asked the Tribunal at the time of the February 2020 hearing to take action to enforce the summons (even assuming that the applicant had taken reasonable steps to have the summons served on the respondent). There is no evidence, such as excerpts from the transcript of those proceedings, which suggests that the applicant, or the applicant’s agent appearing in those proceedings, asked the Tribunal at the February 2020 hearing to take action (such as the making of an order) in relation to a witness failing to answer a summons to attend and give evidence. The reasons for decision make no mention of any witness who failed to answer a summons to attend and give evidence in those proceedings.

Was there otherwise an obligation on the respondent to answer the summons?

  1. My view is that the applicant’s failure to ensure proper service of the summons (being service in accordance with the Tribunal’s procedures) is fatal to the referral application. There was no obligation on the respondent to answer a summons not validly and effectively served.

  2. In any event, on their evidence, which I accept, neither the respondent, nor the respondent’s work manager, were aware of the summons, and its contents, until 21 April 2020. The applicant has not demonstrated, to the required evidential standard (whether the civil standard in s 140 of the Evidence Act, or beyond reasonable doubt), that the respondent was aware of the contents of the summons prior to the hearing on 24-25 February 2020. There was no wilful or intentional failure to comply with a summons issued by the Tribunal.

Conclusion

  1. As is clear from my reasons above, the applicant failed to comply with the Tribunal’s rules of procedure. There was no service of the summons in any of the ways provided for, or authorised by, the NCAT Act, NCAT Rules (and NCAT Procedural Directions). As there was no valid service of the summons, it follows that there was no obligation on the respondent to attend the Tribunal on 25 February 2020 in response to the summons. In such circumstances, there is no conduct on the part of the respondent which is capable of constituting contempt of the Tribunal.

  2. Given my view, as stated above, that the respondent’s conduct is not capable of constituting contempt of the Tribunal, I do not need to consider further issues such as whether the respondent nonetheless had a reasonable excuse for failure to answer the summons for the purposes of s 73(2), NCAT Act. It also does not fall to be considered, on the facts of this matter, whether an intentional failure to answer a summons issued by a Registrar of the Tribunal is conduct which is potentially punishable in contempt proceedings.

Should ongoing non-disclosure orders in these proceedings be made?

  1. Section 64 of the NCAT Act provides:

64 Tribunal may restrict disclosures concerning proceedings

(1)   If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders--

(a)   an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

…

(3)   The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)   For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

  1. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [21]-[27] (Leeming JA), the Court of Appeal commented on the powers conferred on the Tribunal by s 64 of the NCAT Act, in the context of administrative review decisions in NCAT. Stating that applications for administrative review by NCAT are applications within the executive branch of government, Leeming JA noted the significant differences between administrative review decisions by NCAT, on the one hand, and judgments of the courts on the other. His Honour observed that the principle of open justice is engaged in court proceedings, in a way that is not found in NCAT. Leeming JA stated that s 64 confers power to prohibit or restrict the disclosure of applicants’ names whenever the Tribunal is satisfied that it is desirable to do so, and that section is significantly different from the regime established by the Court Suppression and Non-publication Orders Act2010 (NSW).

  2. In the administrative review proceedings referred to earlier, the Tribunal restricted disclosure of the name of the applicant, any victims, and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, pursuant to s 64(1)(a). While it did not state a reason for its disclosure restrictions, the Tribunal followed the usual practice in proceedings of that type (see NCAT (AEOD) Guidelines dated August 2017 entitled “Confidentiality, privacy and publication”). The Tribunal practice is to made orders under s 64(1)(a) to anonymise the name of applicants (and others) in hearing lists and decisions in matters relating to the Child Protection (Working with Children) Act 2012 (NSW) on the basis that, if such order is not made, the identity of an alleged victim could be disclosed which could breach the provisions of the Crimes Act 1900 (NSW).

  3. In these contempt referral proceedings, the Tribunal made an order, on 3 August 2020, on its own motion, under s 64(1)(a), to prohibit the disclosure of the name of the applicant, pending further order. On 8 December 2020, the Tribunal made orders, on its own motion, under s 64(1)(a), prohibiting disclosure of the name of each party to the proceedings on an interim basis, pending further order. The Tribunal indicated, in brief reasons, that it was satisfied that it is desirable to make such orders, on an interim basis, because if the orders were not made, the identity of an alleged child victim in the administrative review proceedings could potentially be disclosed. The parties were given an opportunity to apply for ongoing anonymisation orders, with supporting evidence and submissions as to whether such orders should be made.

Applicant

  1. The applicant has not applied for an ongoing non-disclosure order. The respondent indicated that if such an order is sought by the applicant, the respondent does not oppose it. It is accordingly an issue for the Tribunal to decide of its own motion whether to make an ongoing anonymisation order in respect of DVI (and of other persons).

  2. The Tribunal considers that the interim non-disclosure order should be continued in relation to the applicant. This is for two reasons: firstly, because of the nature of those earlier proceedings, which concerned matters relating to the Child Protection (Working with Children) Act 2012 and a child alleged to be at risk of harm. Secondly, disclosure of the name of DVI (and of other persons whose names cannot be disclosed by orders made in those AEOD proceedings) in the referral proceedings, and in written reasons for the referral decision, would effectively render the non-disclosure order made by the Tribunal in the earlier administrative review proceedings in NCAT of little or no utility.

  3. I am satisfied, for the purposes of s 64(1)(a) of the NCAT Act, for the reasons stated above, that it is desirable to make an ongoing non-disclosure order in respect of the name of the applicant, and to extend the scope of such order to prohibit disclosure of the names of persons giving evidence in these proceedings (except for the respondent’s legal representative).

Respondent

  1. The respondent seeks the continuation of the interim non-disclosure order under s 64 on grounds that include the following:

  1. The respondent has suffered, and continues to suffer, a work-related psychological injury. Between 25 November 2019 and 14 April 2020, the respondent was on workers compensation leave and unfit to work due to a psychological condition. The respondent’s treating psychologist recommends that the respondent’s identity and the nature of her psychological condition not be made known to the public, since it would be detrimental to the respondent’s mental health.

  2. It is further submitted that, in accordance with NCAT Policy 4 “Access to, and Publication of, Information Derived from Proceedings in the Tribunal” at [15], the respondent’s name should continue to be anonymised by use of the anonym ZTT, including in written reasons which may be published in these proceedings.

  1. In response, the applicant states that the applicant does not seek ongoing anonymity, and submits that the respondent’s claims of psychological injury are not established, and that there is no valid reason for anonymity (which I take to mean no valid reason for anonymity of either party).

  2. I am satisfied that there is a risk that disclosure of the respondent’s name will exacerbate an existing work-related psychological injury suffered by the respondent. In reaching that conclusion I have had regard to a report from the respondent’s treating psychologist. For this reason, I have decided to make an ongoing non-disclosure order in respect of the respondent’s name under
    s 64(1)(a) of the NCAT Act. The Tribunal has made non-disclosure or non-publication orders under s 64 on prior occasions where a party has sought such an order due to concerns that disclosure of the party’s name would damage (or further damage) the person’s mental health: e.g. Legal Services Commissioner v DRA (No 2) [2018] NSWCATOD 195; EJH v Independent Liquor and Gaming Authority [2021] NSWCATAD 7; Council of the Law Society of NSW v CZD [2017] NSWCATOD 153; EEZ v TAFE NSW [2020] NSWCATAD 35.

Orders

  1. The Tribunal makes the following orders:

  1. A hearing is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

  2. The amended application lodged on 11 August 2020 seeking the referral to the Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) of the alleged contempt by the respondent is dismissed.

  3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the parties, and of persons giving evidence in these proceedings (except for the respondent’s legal representative), is prohibited.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

ANNexure

Civil and Administrative Tribunal Rules 2014

13 Service, giving and lodgement of notices or documents

(1) Application of rule This rule applies for the purposes of each of the following—

(a) the Act and the statutory rules under the Act,

(b) the Administrative Decisions Review Act 1997 and the regulations under that Act.

(2) Means for service or giving of notices and documents A notice or document may be served on or given to a person or body—

(a) by means of personal service, or

(b) by posting a copy of the notice or document, addressed to the person or body—

(i) to the person’s or body’s address for service, or

(ii) if the person or body does not have an address for service, to the person’s or body’s business or residential address (or the business or residential address last known to the person or body serving the notice or document), or

(c) by leaving a copy of the notice or document, addressed to the person or body—

(i) at the person’s or body’s address for service, or

(ii) if the person does not have an address for service, at the person’s or body’s business or residential address (or the business or residential address last known to the person or body serving the notice or document), or

(d) in the case of a Government Department—by leaving a copy of the notice or document at, or by posting the notice or document to, any office of that Department addressed to the head of the Government Department, or

(e) in the case of a person or body whose address for service includes a DX address in New South Wales—by leaving a copy of the notice or document, addressed to the person or body, in the DX box at that address or in another DX box for transmission to that DX box, or

(f) in the case of a person or body that has consented to service by means of a fax sent to a fax number specified by the person or body—by faxing a copy of the notice or document, addressed to the person or body, to that fax number, or

(g) in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body—by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number, or

(h) in the case of service on a corporation—by serving a copy of the notice or document on the corporation in any manner in which service of such a notice or document may, by law, be served on the corporation, or

(i) in such other manner as the Tribunal or a registrar may direct in a particular case.

…

(4) When notice or document taken to be served, given or lodged Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is—

…

(d) in the case of a notice or document that is served electronically in accordance with subrule (2)(g)—

(i) if the notice or document that is served has been filed in, or issued by, the Tribunal by means of an ECM system referred to in Part 3—at the time provided by clause 13 of Schedule 1 to the Electronic Transactions Act 2000, or

(ii) if the notice or document that is served has not been filed in, or issued by, the Tribunal by such means—at the time provided by section 13A of the Electronic Transactions Act 2000.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 28 April 2021

Most Recent Citation
Cases Citing This Decision

9

JW v Department of Communities and Justice [2023] NSWDC 466
Keddis v Pelders [2025] NSWCATEN 1
Nichols v Ford [2024] NSWCATEN 3
Cases Cited

31

Statutory Material Cited

9

Allianz Australia Insurance Limited v Yu (No 1) [2020] NSWSC 1914
Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62
Hearne v Street [2008] HCA 36