(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
Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105
Registrar of the Court of Appeal v Maniam…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DVI v ZTT [2021] NSWCATEN 4
Case
[2021] NSWCATEN 4
Decision Date
CaseChat Overview and Summary
The applicant, DVI, filed an application against ZTT, seeking a referral to the Supreme Court under section 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) for an alleged contempt committed by the respondent. The basis of the application was the respondent's failure to appear to give evidence in Tribunal proceedings after being summoned. The matter was heard in the Civil and Administrative Tribunal (CAT) of New South Wales.
The primary legal issue before the court was whether the respondent's failure to appear to give evidence in the Tribunal proceedings, following a summons, constituted a contempt of court capable of referral to the Supreme Court. The court had to consider whether the summons was validly served and whether the respondent's conduct amounted to contempt. The court also needed to decide whether the referral to the Supreme Court was warranted under the relevant statutory provisions.
The court found that the summons had not been validly served on the respondent, and therefore, the respondent's failure to appear could not be considered contempt of court. Consequently, the court dismissed the application for referral to the Supreme Court. The court emphasised the importance of valid service of process and noted that without valid service, the respondent's failure to appear did not constitute contempt. The court also noted that the disclosure of the names of the parties and witnesses, except for the respondent's legal representative, was prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
Orders
Orders of the court
(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.