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FCZ v Crown Solicitor

FCZ v Crown Solicitor

Case [2022] NSWCATEN 3 19 August 2022

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FCZ v Crown Solicitor [2022] NSWCATEN 3
Hearing dates: 4 August 2022
Date of orders: 19 August 2022
Decision date: 19 August 2022
Jurisdiction: Enforcement
Before: I R Coleman SC ADCJ, Principal Member
Decision:
(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the names of the Applicant and the Applicant’s representative is prohibited.
(2) The application filed on 10 December 20221 seeking the referral to the Supreme Court under s 73(1) or s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) of the alleged contempt of the Respondent is dismissed.

Catchwords:
PRACTICE AND PROCEDURE- contempt- application for referral to Supreme Court under s 73(1) or s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW)- allegation that Respondent guilty of contempt in the face or hearing of the Tribunal, or for breaching order of the Tribunal by failing to prevent client of Respondent from breaching order of Tribunal- whether either matter capable of amounting to contempt- referral to Supreme Court refused

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Privacy and Personal information Protection Information Act 1998 (NSW)

Cases Cited:
Burns v Corbett [2015] NSWCATAD 188
DVI v ZTT [2021] NSWCATEN 4
Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Fraser v The Queen (1984) 3 NSWLR 212
Lane v. Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245
Mohareb v Kelso [2020] NSWCA 105
Mohareb v Palmer [2017] NSWCA 281
Mohareb v Palmer (No 4) [2017] NSWDC 17
Mirus Australia Pty Limited v Gage [2017] NSWSC 1046
National Australia Bank v Juric (No 2) [2001] VSC 375
Registrar, Court of Appeal v Collins (1982) 1 NSWLR 682
Turner v Department of Justice [2016] NSWCATAD 146
Turner v New South Wales Forensic & Analytical Science Service [2017] NSWCATAD 181

Category: Principal judgment
Parties: FCZ- Applicant
Crown Solicitor- Respondent
Representation: Solicitor:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s): PC 21/52158
Publication restriction: Nil

REASONS FOR DECISION

Introduction

By application filed 10 December 2021 (referral application) FCZ, as the Applicant has been referred to in these and related proceedings, sought orders that the Crown Solicitor of New South Wales (Respondent) be “found guilty of the following charges”, the particulars of which asserted, in substance, that:

on or about 16 November 2021 the Respondent “failed to prepare to lodge and/or failed to lodge” with the NSW Civil and Administrative Tribunal (NCAT) “sufficient information pursuant to s 58(1)(b) of the Administrative Decisions Review Act 1997 (ADR Act) in respect of documents that the Illawarra Shoalhaven Local Health District allegedly failed to locate for the purposes of administrative review in the case FCZ v Illawarra Shoalhaven Local District…

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.

Continue reading FCZ v Crown Solicitor

Details

AGLC: FCZ v Crown Solicitor [2022] NSWCATEN 3
Case: [2022] NSWCATEN 3
Decision Date: 19 August 2022

CaseChat Overview and Summary

The case of FCZ v Crown Solicitor involved an application for the referral of an alleged contempt matter to the Supreme Court. The application was made under sections 73(1) and 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW), following an allegation that the Respondent, the Crown Solicitor, was guilty of contempt in the face or hearing of the Tribunal, or for breaching an order of the Tribunal by failing to prevent a client of the Respondent from breaching an order of the Tribunal. The applicant sought the referral to the Supreme Court on the basis that the alleged contempt was of a serious nature and required the intervention of the higher court.

The central legal issue before the court was whether the alleged contempt of the Respondent could be considered serious enough to warrant referral to the Supreme Court. This involved an interpretation of the relevant sections of the Civil and Administrative Tribunal Act 2013 (NSW) and an assessment of the gravity of the alleged contempt. The court needed to determine if either the failure to prevent the client from breaching an order of the Tribunal, or the alleged direct contempt by the Respondent, constituted a matter of serious nature that justified the intervention of the Supreme Court.

The court found that neither the alleged failure to prevent the client from breaching an order of the Tribunal, nor the alleged direct contempt by the Respondent, amounted to a matter capable of amounting to contempt. The court concluded that the alleged actions did not meet the threshold of seriousness required for referral to the Supreme Court under the relevant sections of the Act. Consequently, the application for referral was dismissed, and the names of the applicant and the applicant’s representative were prohibited from disclosure under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

Orders

Orders of the court

(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the names of the Applicant and the Applicant’s representative is prohibited.

(2) The application filed on 10 December 20221 seeking the referral to the Supreme Court under s 73(1) or s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) of the alleged contempt of the Respondent is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

FCZ v Crown Solicitor [2022] NSWCATEN 3

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

DVI v ZTT
[2021] NSWCATEN 4 Para 34

…In DVI v ZTT [2021] NSWCATEN 4, ( DVI ), the President of the Tribunal, Armstrong J, reviewed the principles governing referral applications based on alleged breaches of orders of the Tribunal. It was accepted, at [7], in reliance upon Mohareb v Palmer [2017] NSWCA 281, at [19], that, for a contempt application to b…
Mohareb v Kelso
[2020] NSWCA 105 Para 29

…In Mohareb v Kelso [2020] NSWCA 105, ( Mohareb ), at [7] Simpson AJA discerned that the alleged contempt in the face of the court was a “criminal assault upon the applicant motivated by proceedings brought in the District Court by the applicant against the first respondent”, which allegedly occurred “at the applica…
Mohareb v Palmer
[2017] NSWCA 281 Para 34

…iples governing referral applications based on alleged breaches of orders of the Tribunal. It was accepted, at [7], in reliance upon Mohareb v Palmer [2017] NSWCA 281, at [19], that, for a contempt application to be referred to the Supreme Court, the Tribunal must find “conduct capable of amounting to contempt”, an…
Mirus Australia Pty Ltd v Gage
[2017] NSWSC 1046 Para 24

…With respect to the alleged contempt in the face of the Tribunal, in Mirus Australia Pty Limited v Gage [2017] NSWSC 1046, Ward CJ in Equity (as Ward P then was) observed with respect to a criminal contempt, at [117]:…
Turner v NSW Forensic & Analytical Science Service
[2017] NSWCATAD 181 Para 31

…In Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181, at [18] Deputy President Hennessy LCM referred to the interpretation of contempt in the face or hearing of the Tribunal adopted in Fraser , as “conduct seen or heard by the decision-maker”, and noted that, by reference to Collins , that there w…
Fu Xing Pty Ltd v Sidway Constructions Pty Ltd
[2017] NSWDC 17 Para 35

…( Mohareb v Palmer [2017] NSWCA 281, at [22]). The power to punish for contempt is used sparingly and only in serious cases ( Mohareb v Palmer (No 4) [2017] NSWDC 17, at [82]).…
Turner v Department of Justice
[2016] NSWCATAD 146 Para 38

…son, and that the conduct of the alleged contemnor was wilful, as opposed to “casual, accidental or inadvertent” ( Turner v Department of Justice [2016] NSWCATAD 146).…
Burns v Corbett
[2015] NSWCATAD 188 Para 37

…In Burns v Corbett [2015] NSWCATAD 188, at [93] the Tribunal stated:…
National Australia Bank Ltd v Juric
[2001] VSC 375 Para 33

…In National Australia Bank Ltd v Juric [2001] VSC 375, at [36] Gillard J accepted that, in order to prove a civil contempt of court involving breach of an order of the court the plaintiff needed to prove each element of the alleged contempt beyond reasonable doubt. It is difficult to accept that a lower standard…
Witham v Holloway
[1995] HCA 3

…g 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 Cour…
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd
[1986] HCA 46

…e 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 c…
Lane v Registrar of the Supreme Court of New South Wales
[1981] HCA 35 Para 26

…In Lane v Registrar of Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245, at [257] (Lane) the High Court accepted that “action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term i…
[1961] AC 290
[1961] AC 290 Para 31

…ugh the consideration of the issue concluded by referring to the statement by Priestley JA in European Asian Bank AG v Wentworth [1986] 5 NSWLR 445, at [463] that “either view is open”, and that the court had adopted the “broader view” in that case, the Tribunal does not appear to have preferred either approac…

Legislation cited in this decision · 5

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 16)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2014 (NSW)
1 mention (from Para 1)
Health Records and Information Privacy Act 2002 (NSW)
1 mention (from Para 9)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 13)

Medium Neutral Citation:	FCZ v Crown Solicitor [2022] NSWCATEN 3
Hearing dates:	4 August 2022
Date of orders:	19 August 2022
Decision date:	19 August 2022
Jurisdiction:	Enforcement
Before:	I R Coleman SC ADCJ, Principal Member
Decision:	(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the names of the Applicant and the Applicant’s representative is prohibited. (2) The application filed on 10 December 20221 seeking the referral to the Supreme Court under s 73(1) or s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) of the alleged contempt of the Respondent is dismissed.
Catchwords:	PRACTICE AND PROCEDURE- contempt- application for referral to Supreme Court under s 73(1) or s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW)- allegation that Respondent guilty of contempt in the face or hearing of the Tribunal, or for breaching order of the Tribunal by failing to prevent client of Respondent from breaching order of Tribunal- whether either matter capable of amounting to contempt- referral to Supreme Court refused
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal information Protection Information Act 1998 (NSW)
Cases Cited:	Burns v Corbett [2015] NSWCATAD 188 DVI v ZTT [2021] NSWCATEN 4 Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 Fraser v The Queen (1984) 3 NSWLR 212 Lane v. Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245 Mohareb v Kelso [2020] NSWCA 105 Mohareb v Palmer [2017] NSWCA 281 Mohareb v Palmer (No 4) [2017] NSWDC 17 Mirus Australia Pty Limited v Gage [2017] NSWSC 1046 National Australia Bank v Juric (No 2) [2001] VSC 375 Registrar, Court of Appeal v Collins (1982) 1 NSWLR 682 Turner v Department of Justice [2016] NSWCATAD 146 Turner v New South Wales Forensic & Analytical Science Service [2017] NSWCATAD 181
Category:	Principal judgment
Parties:	FCZ- Applicant Crown Solicitor- Respondent
Representation:	Solicitor: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	PC 21/52158
Publication restriction:	Nil