FCZ v Crown Solicitor

[2022] NSWCATEN 3

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

1. 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:

1. 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 File Number 2021/259392;

2. between 2 December 2021 and 5 December 2021 the Respondent failed to prepare to lodge and/or failed to lodge the documents referred to above;

3. on or about 6 December 2021 the Respondent failed to lodge the documents referred to above;

4. since 7 December 2021 the Respondent failed to prepare to lodge and/or failed to lodge the documents identified above.

1. The Tribunal shall hear the charges and determine an appropriate punishment pursuant to s 73(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act), or in the alternative, the Tribunal shall refer the matter to the Supreme Court of NSW pursuant to s 73(5) of the CAT Act.”

   2. The Respondent resisted the referral application.

   3. Over the objection of the Respondent, and for the reasons then given, the Tribunal had previously acceded to the Applicant’s request for an oral hearing of the referral application.

   4. Also over the Respondent’s objection, and for the reasons then given, at the commencement of the hearing of the referral application, the Tribunal granted leave for FCZ to be represented on the hearing of the referral application by a person who is not a legal practitioner. In view of the grounds on which the Respondent opposed doing so, leave was only granted after the Tribunal was satisfied that the Applicant’s proposed representative would conduct the Applicant’s case by reference to the evidence in the application, and the principles governing it.

   5. After the completion of the hearing, FCZ sought that the identity of her representative not be disclosed. Although, as the Respondent submitted, the basis for such request was tenuous, in the interests of protecting the identity of a child of FCZ, as the child’s identity was submitted to be likely to be revealed, by virtue of the association between FCZ and her representative, if publication of the identity of the latter was not prohibited. Accordingly, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2014 (NSW) (CAT Act) the Tribunal ordered that disclosure of the name of FCZ’s representative be prohibited. FCZ’s representative will be referred to throughout these reasons as “ZCF”.

   6. The Tribunal explained the principles governing the referral application to the Applicant’s representative, and directed her specific attention to a number of particular submissions made in the Respondent’s outline of submissions.

   7. In support of her application of 10 December 2021, the Applicant relied upon an Affidavit sworn by her on that date. Annexed to that Affidavit were a number of documents, including an Affidavit sworn by an officer in the employ of the Respondent of 16 November 2021. The Applicant filed written submissions in support of the referral application on 24 February 2022. On 24 March 2022 the Respondent filed written submissions in opposition to the referral application. At the commencement of the hearing the parties confirmed that there were no other documents which were relevant to the determination of the referral application.

   8. To better appreciate the current application recording some matters of background is appropriate.

Background

9. On 13 January 2021 the Applicant lodged with the Wollongong Hospital, a facility operated by the Illawarra Shoalhaven Local Health District (ISLHD), a request pursuant to the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) seeking access to medical records of her daughter for the period from 1 September 2013 to 30 November 2015. The documents sought included all medical records from the Wollongong and Port Kembla Hospitals, including but not limited to the Wollongong Hospital records of 3-4 April 2015 and, if “separate from the above” any “documentation relating to [child’s] attendance upon Dr Catherine Brown at Port Kembla Hospital on 10 May 2015 including but not limited to certificate under s 177 of the Evidence Act”.

10. Subsequently a medicolegal officer at Wollongong Hospital released some copies of FCZ’s daughter’s medical records held at that hospital to FCZ.

11. On 1 February 2021 FCZ filed a further HRIP Act request with respect to her daughter’s medical records in substantially the same terms as previously with the Kids and Families Division of the Domestic Family Violence and Sexual Assault Services, a facility of ISLHD.

12. By letter dated 12 May 2021 the ISLHD advised FCZ that it had decided not to provide her with access to the remainder of her daughter’s medical records and stated the basis upon which it had made that decision. It is unnecessary for present purposes to refer to the reasons for that decision.

13. On 21 June 2021 FCZ lodged an application for internal review of the decision of 12 May 2021 under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and s 21 of the HRIP Act seeking review of her application for medical records dated 13 January 2021.

14. On 17 August 2021 the ISLHD advised FCZ in writing that it had conducted an internal review and affirmed the decision of 12 May 2021 refusing access to the medical records of FCZ’s daughter.

15. On 20 September 2021, FCZ lodged an application for administrative review of the internal review with the Tribunal.

16. On 18 October 2021 the ISLHD filed a 129 page bundle of documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), and an application seeking orders under s 59(2) of the ADR Act that it not be required to lodge copies of documents that were the subject of FCZ’s application for access, those documents being FCZ’s daughter’s electronic medical records and a report from Dr Brown under s 58 of the ADR Act.

17. On 2 November 2021 the Tribunal set a timetable for the hearing of FCZ’s application for access to documents and ISLHD’s application pursuant to s 59 of the ADR Act. That was the date of order 2, upon which the Applicant relies in support of her application for contempt for breach of an order of the Tribunal.

18. On 16 November 2021 the Affidavit of the employee of the Respondent was filed, together with a confidential bundle of documents which was the subject of the Respondent’s s 59 ADR Act application, and submissions in support of the s 59 application.

19. The Affidavit of the Respondent’s employee relevantly stated (19) that, on behalf of ISLHD, the Respondent produced documents which were responsive to FCZ’s application, and that there were “further documents that were held by the ISLHD that are responsive to the Applicant’s application of 13 January 2021, which, at this stage, the ISLHD has not been able to locate” (18). The Respondent’s employee also deposed (19) to the nature, form and location of the documents which the ISLHD instructed the Respondent were “subject to the following security safeguards”, which were outlined in four sub-paragraphs of the affidavit.

20. On 21 December 2021 the Tribunal granted the Respondent’s s 59 ADR Act application and reserved its decision with respect to the Applicant’s administrative review application. There was no request by FCZ to cross-examine the deponent of the Affidavit of the Respondent’s employee of 16 November 2021 at the hearing on 21 December 2021.

21. On 11 March 2022 the Tribunal delivered its decision with respect to the Applicant’s administrative review application, the effect of the decision being that FCZ was denied access to the remaining records of ISLHD which had been produced. FCZ appealed against that decision. The appeal has been heard and the decision of the Appeal Panel with respect to it has been reserved. As has been known to FCZ at all material times, the Appeal Panel which heard her appeal included the Principal Member of the Tribunal who has heard the referral application. On the day the appeal was heard, and for more abundant caution, the referral application was mentioned, and it was then confirmed by FCZ that nothing arising in the course of the appeal had, or could have, any bearing on the referral application.

The principles governing the application

22. In oral submissions FCZ’s representative confirmed that FCZ sought that the Respondent be referred to the Supreme Court to be dealt with for contempt either on the basis that the Respondent was guilty of contempt of the Tribunal in the face or in the hearing of the Tribunal pursuant to s 73(1) of the CAT Act, or that the Respondent was guilty of contempt of the Tribunal by failing to comply with an order of the Tribunal, namely, order 2 of the orders of 2 November 2021 pursuant to s 73(5) of the CAT Act.

23. As is not in doubt, and the Applicant and her representative accepted, the present application is limited to determining whether the Applicant’s contempt application should be referred to the Supreme Court. It does not involve the hearing of any contempt application. The issue is whether the Applicant demonstrates evidence which is “capable” of establishing either or both of the contempts which she alleges.

Contempt in the face or hearing of the Tribunal

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]:

“Criminal contempt involves interference with the administration of justice. The precise elements of criminal contempt vary with the nature of the contempt alleged. The law is typically expounded by reference to general categories of behaviour, though such categories are not closed. Those categories include contempt in the face of the court (such as speaking insulting words to a judge in the discharge of his or her office, making affray or other disturbance that disrupts the business of the court, refusing to be sworn to give evidence or refusing to answer questions, interfering with witnesses, seeking to coerce or improperly influence a judge, publishing material that may interfere with a fair trial, and assisting a party to breach a court’s orders … and contumacious disobedience to the court’s order that exhibits defiance of the court.”

25. As the submissions on behalf of the Applicant confirm, the substance of her complaint pursuant to s 73(1) of the CAT Act is that, by “acts of omission” the Respondent assisted a party, its client ISLH, to breach an order of the Tribunal.

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 in a broad sense” could constitute contempt of court.

27. The Applicant asserted that, by failing to act in the ways identified by her, none of which was submitted to have occurred in the face or hearing of the Tribunal, the Respondent was complicit in the ISLH disobeying order 2 of the orders of 2 November 2021. The evidence upon which the Applicant relied was submitted to be capable of establishing contempt in the face of the Tribunal on that basis.

28. In reliance upon the decision in Fraser v The Queen (1984) 3 NSWLR 212, (Fraser) the Respondent submitted that the conduct, or its absence relied upon by the Applicant could not constitute contempt, as it was not “conduct, seen, heard or otherwise sensed by the Tribunal member”.

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 applicant’s home, well away from the court” [11].

30. In Mohareb, at [10] her Honour referred to Registrar, Court of Appeal v Collins (1982) 1 NSWLR 682 (Collins) as “a case in which a protester, standing in the precincts of several courts where criminal trials were conducted, in some cases where trials were in progress, handed out pamphlets to jurors and potential jurors, urging awareness of what Collins asserted to be police malpractice. The court took an expansive view of what constituted contempt in the face of the court”, and observed that, a “later bench of the court in Fraser v The Queen (1984) 3 NSWLR 212 drew back from such an expansive approach”.

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 was a “wider view” that contempt in the face or hearing of the Tribunal “extends to conduct without geographic boundaries… which is sufficiently proximate in time and space to the trial of proceedings then in progress or imminent so as to provide a present confrontation to the trial”. Although 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 approach, or to have needed to on the facts of the case before it.

32. For the reasons recorded below, and as the issue has not been fully agitated, it is unnecessary and undesirable to express a concluded view with respect to the correct or preferable approach in circumstances where there is no suggestion that the contempt alleged against the Respondent occurred in the face or hearing of the Tribunal. In the light of the statement in Lane cited above, it may be that the inaction of a solicitor for a party to proceedings could have the effect on the administration of justice identified by the High Court, and thus be capable of amounting to contempt.

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 of proof would apply to an alleged contempt of the Tribunal not involving the breach of its orders. Unless the evidence relied on by the Applicant is capable of establishing contempt on either of the bases asserted by her in accordance with the criminal standard of proof, referring the application to the Supreme Court would be problematic.

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 be referred to the Supreme Court, the Tribunal must find “conduct capable of amounting to contempt”, and [8] that the respondent to a referral application was entitled to be heard in opposition to the application, without waiving the right to silence.

35. If the Applicant demonstrates conduct which is capable of amounting to contempt of the Tribunal, the contempt application may, in the exercise of discretion, be referred to the Supreme Court (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]).

36. Where a contempt application is made in reliance upon alleged breaches of orders of the Tribunal, the availability of alternative means of enforcing the orders, and whether any of those means has been previously invoked are relevant to the proper exercise of the discretion to refer the application to the Supreme Court (DVI, at [10]).

37. In Burns v Corbett [2015] NSWCATAD 188, at [93] the Tribunal stated:

“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”.

38. In DVI, at [11] the Tribunal accepted that, to prove a contempt for breach of an order of the Tribunal, it was necessary to establish that the obligation imposed on the respondent by the order is sufficiently clear to support enforcement of the order against the person, 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).

Consideration

39. Under the heading “Is the matter capable of referral to the Supreme Court” the Applicant accepted (13-18) that for the referral application to succeed “the charged conduct must be capable of amounting to contempt”.

40. The further submissions of the Applicant asserting that there were “seriously arguable questions, capable of being answered by the Supreme Court, which is a Superior Court of Record possessing inherent power to answer questions of law authoritatively in the jurisdiction of NSW” does not advance the referral application, the principles governing which are not in doubt, and have been identified earlier in these reasons.

41. Under the heading “Should the matter be referred to the Supreme Court” the Applicant made a series of submissions (19-24). The Applicant’s case is encapsulated in her submission (23) that the:

“fundamental question in the matter is whether the Respondent’s refusal, in proceedings brought under the HRIPA Act, to ensure that her client provided to the Tribunal sufficient remnants of information that had been contained in documents she claimed were lost, amounted to contempt. If there is no environment in which to hold the Respondent accountable in respect of documents claimed to have been lost that would otherwise have had to be produced to the Tribunal, then possessors of relevant information would have “licence” to hide documents in their own best interests under the guise of losing them, thus defeating the purpose of the HRIPA Act to allow releases of information in the public interest.”

42. Prior to the commencement of the Respondent’s agent’s oral submissions, as a matter of procedural fairness, the Tribunal directed her attention to a number of fundamental propositions asserted in the Respondent’s written submissions, and particularly paragraphs 2, 36, 41, 44, 45 and 48 of the submissions, and suggested to the Applicant’s representative that she may wish to engage with each of those propositions.

43. In the referral application, under the heading “Grounds for Application” the Applicant articulated a number of matters upon which she relied. The Applicant acknowledged, correctly, that the Illawarra Shoalhaven Local Health District (ISLHD) was the “client” of the Respondent. The Applicant submitted that the Respondent was “supposed to be a model litigant” (pursuant to the NSW Model Litigant Policy for Civil Litigation para 3.1). Other than in the present application, the Respondent is not suggested to have been a “litigant” in any proceedings involving the Applicant.

44. The Applicant asserted that s 58(1)(b) of the ADR Act “obliges” the ISLHD provide to the Tribunal “a copy of every document, part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal”.

45. The Applicant referred to, and relied upon, order 2 made by the Tribunal on 2 November 2021 (relevant order). That order provided that the ISLHD “is to give to the Tribunal on a confidential basis any confidential evidence and submissions, and a copy of the documents the subject of the application, by 16 November 2021”. The application to which the order referred was the application of the Applicant filed 13 January 2021 for access to records which she asserted were held by the ISLHD.

46. By reference to the Affidavit of the employee of the Respondent of 16 November 2021, the Applicant asserted that there appeared to be “a deliberate semantic trick to dissociate the missing documents” from those required to be produced pursuant to order 2 of the orders of 2 November 2021 “in order to absolve ISLHD of its s 58 responsibilities.” The Applicant referred to having drawn the “insufficiency of this approach to the attention of the Crown Solicitor in an email to her personally on 3 December 2021” and to her complaint having been ”not resolved”.

47. As the Applicant submitted, the Respondent’s employee deposed in her affidavit, on instructions from the client, ISLHD, that there were documents which were “responsive” to the Applicant’s application which “at this stage”, the ISLHD had not been able to locate.

48. The Applicant referred, accurately, to the assertion of the Respondent of 4 December 2021, that the “missing documents did not come within the scope of s 58 because they are not in the possession or control of the ISLHD and they do not have a copy of them”. The Applicant submitted that was a “technical defence” which the Respondent was prohibited from advancing on behalf of its client pursuant to paragraph 3.2(g) of the Model Litigant Policy. Nothing to which the Applicant referred supports that contention.

49. The Applicant further asserted that “There must be a material record of the missing documents available in whole or part” otherwise the Respondent’s employee would not have been able to depose to them being missing. It was asserted that this “material record” would fall within the scope of a “copy” of documents within the meaning of s 58 of the ADR Act. That was asserted to be so because “otherwise, government officials could destroy documents that are not in the best interests of government and get out of their responsibilities to produce them by claiming that they do not have “copies” or that copies are no longer in their control”, thereby circumventing or defeating the purpose of s 58 of the ADR Act.

50. The Applicant asserted that the Respondent “should have ensured that its client put on evidence of everything it knew about the missing documents (even if that evidence was kept private from FCZ)” and “should also have ensured that its client put on evidence of how and why the originals went missing, and when it expects to locate them if at all”. Implicit in the concept of a document being “missing” is the likelihood that these things are not known, and that, if they were, the document would not be missing. The Applicant’s contention assumes a number of matters which are not established by any evidence to which the Tribunal has been referred.

51. The Applicant ultimately asserted that, instead of complying with its obligations, the Respondent “attempted to cover up the failure with impermissible semantic and technical defences” and that, accordingly, “the Crown Solicitor is in contempt of the Tribunal”.

52. The Applicant’s agent submitted that the determination of the current application involved questions of statutory interpretation and the “statutory obligations” of the Respondent’s client. The fate of this application does not involve such considerations. The issue is whether the evidence relied upon by the Applicant is capable of establishing contempt in the face or hearing of the Tribunal, or contempt constituted by aiding, abetting, or encouraging the ISLHD to breach the orders of the Tribunal.

53. The crux of the application pursuant to s73(1) of the CAT Act is summarised in the submission by the Applicant’s representative that she “wants the Crown Solicitor held responsible for the failure of her client to produce missing documents”, and that the assertedly inadequate response of the ISLHD could only be referable to the failure of the Respondent to properly advise ISLHD of its obligations pursuant to the HRIP Act. It was thus submitted that, by such failure, the Respondent was in contempt of the Tribunal.

54. The Applicant’s representative submitted that the application was of “legal importance” raising questions of “institutional integrity and transparency of government” and that it was important to have the Supreme Court “answer the question of the broader obligation of the client to produce missing information” and the consequence of failing to do so being to “condone or create loopholes in the legislation” which were not intended. Nothing to which the Tribunal has been referred supports those contentions.

55. It was submitted that the Respondent should have been aware that her client was “doing the wrong thing by the Tribunal”, and “stopped it doing so” or have refused to continue to represent it.

56. The Applicant’s representative relied on Annexures FCZ 5, 6 and 7 to her Affidavit of 10 December 2021. Annexure FCZ 5 is a series of emails between FCZ and an employee of the Respondent which passed between 10.00 a.m. on 30 November 2021 and 5.18 p.m. on 2 December 2021. The significance of those emails was asserted to be to give some “insight” into the relationship between the Respondent and the ISLHD, and to evidence the alleged failure of the Respondent to properly advise ISLHD of its obligations, or to insist that it comply with its obligations.

57. On 30 November 2021 the Applicant requested the Respondent to “compile an index of all the documents that ISLHD says cannot be located”. The Respondent replied the next day stating that:

“In the circumstances where it is my client’s view that you are not entitled access to your daughter’s medical record, it would be inappropriate for me to both describe the documents on your daughter’s medical record or provide you an index of those records, it is on this basis that my client is unable to comply with your request.”

58. The Applicant’s representative placed considerable reliance upon that passage in the email. As the Respondent submitted (36), and the legislation to which the Respondent referred makes clear, the obligation imposed on the ISLHD did not extend to the creation of the documents sought by the Applicant.

59. The following day the Applicant again emailed the Respondent making a request for a “list identifying as much information as possible about the missing documents” being provided to the Tribunal pursuant to s 58 of the ADR Act. The Applicant set out six respects in which she asserted that the Respondent should provide details with respect to the “missing” documents.

60. The Respondent replied later the same day reiterating the basis on which the request for an index of “missing documents” had previously been refused. Contrary to the submissions of the representative for the Applicant, nothing in the emails upon which the Applicant relies is capable of advancing the referral application on any of the grounds relied upon.

61. The Tribunal has not been referred to any evidence which suggests that the Respondent failed to properly advise the ISLHD with respect to its obligations pursuant to the HRIP Act or the ADR Act. Nor is there any basis for concluding, if it in fact did, for which there is no evidentiary foundation, that the ISLHD failed to do anything which it should have, or did anything which it should not have, in reliance upon any advice given, or omitted to be given, by the Respondent.

62. In view of the fact that, well prior to the hearing on 21 December 2021 the Applicant knew that the ISLHD asserted that there were documents which it had been unable to locate, the failure of FCZ to require the deponent of the Affidavit employed by the Respondent of 16 November 2021 for cross-examination assumes significance. To the extent that, as was submitted on behalf of the Applicant, the deponent of the Affidavit was not an employee of the ISLHD, cross-examination with respect to the nature and extent of the searches for missing documents, along the lines of the 6 points raised by the Applicant in her email at 1.40 p.m. on 2 December 2021 would have been possible and permissible, without in any way risking the contents of any documents to which the Applicant had not been granted access being disclosed. Inadequacies in the explanation for missing documents emerging from cross-examination may have resulted in the Tribunal directing the ISLHD to conduct further searches for them.

63. Without contending that it was the only basis for dismissing the referral application, the Respondent squarely asserted in its submissions (2, 41, 44), in substance, that the Applicant had brought her application against the wrong Respondent. The Applicant disagreed with that assertion, and, for the reasons referred to above, submitted that the Respondent was the appropriate respondent, and was guilty of contempt of the Tribunal.

64. Unless the “expansive approach” discussed earlier were taken, the referral application pursuant to s 73(1) of the CAT Act could not succeed. If it were, the result in this case would be no different. Nothing to which the Applicant has referred the Tribunal establishes that the ISLHD has done anything which it should not have done, or has failed to do anything which it should have done. In those circumstances, the Respondent could not potentially be in contempt of the Tribunal on the basis asserted by FCZ, or otherwise. Even if ISLHD had failed to discharge its legal obligations, without more, and there is no more, that could not potentially establish that the Respondent was in contempt of the Tribunal pursuant to s 73(5) of the CAT Act for aiding, abetting, or encouraging its client to breach an order of the Tribunal.

65. The referral application pursuant to s 73(5) of the CAT Act is based on the asserted breach of the relevant order, the terms of which have been recorded earlier in these reasons.

66. The Respondent’s employee’s affidavit stated (18) that ISLHD’s instructions were that there were documents that were responsive to the Applicant’s application of 13 January 2021 which “at this stage, the ISLHD has not been able to locate”. The deponent also stated (19) that the instructions of ISLHD that four categories of documents were “subject to the following security safeguards”. Each of those categories of document was then identified by reference to four numbered “tabs”. The instructions of the ISLHD with respect to whether each category of documents was “paper-based”, “electronic” or “paper-based and electronic”, and asserted security restrictions with respect to each the categories were also stated. That evidence was not challenged by cross-examination, or contradicted by any other evidence to which the Tribunal has been referred. Nothing emerging from the contents of the affidavit, or any other evidence rendered its acceptance unsafe.

67. The only basis upon which the Respondent could potentially be in contempt of the relevant order would be if there was evidence capable of establishing that the ISLHD had breached the order, and that the Respondent had aided, abetted, or encouraged the ISLHD to do so.

68. Only by making the series of assumptions urged on behalf of the Applicant, for which there is no evidentiary foundation, could it be held that the Respondent did anything to aid and abet, or encourage the ISLHD to fail to comply with its obligations under the relevant order. Whatever advice the Respondent may have given ISLHD, nothing to which the Tribunal has been referred is capable of establishing that ISLHD failed to comply with that order. In those circumstances the Respondent could not be in contempt of the orders of the Tribunal, in the manner asserted by the Applicant, or otherwise.

69. As the evidence upon which the Applicant relies is not capable of establishing contempt by the Respondent on either of the bases asserted by her, even if an “expansive view” were taken with respect to the claim pursuant to s 73(1) of the CAT Act, and capability were determined in accordance with the civil standard of proof, the application against the Respondent will be dismissed.

70. In the course of her submissions, the Applicant’s representative inferred that, if the application were dismissed on the basis that the Applicant had proceeded against the wrong respondent, that could be readily cured by filing a fresh application against ISLHD. It ought not be thought that such an application would be likely to meet with a different fate to the present application.

71. No possible basis for a referral application against ISLHD pursuant to s 73(1) of the CAT Act emerges from the evidence relied upon in the present application. The fact that nothing relied upon by the Applicant is capable of establishing that ISLHD is in contempt of an order of the Tribunal would be fatal to a referral application against ISLHD pursuant to s 73(5) of the CAT Act. There are other reasons why such an application would fail.

72. If, contrary to the findings recorded above, the evidence relied on by the Applicant is capable of establishing that ISLHD breached the relevant order, the Applicant would need to establish that such breach was capable of being found to have been wilful, as opposed to casual, accidental or unintentional.

73. The Applicant’s request for the production of medical records of her daughter was filed on 13 January 2021, and sought documents covering the period from 1 September 2013 to 30 November 2015. On 18 October 2021, ISLHD filed a 129 page bundle of documents pursuant to s 58 of the ADR Act in response to the Applicant’s application. As noted above, the Respondent’s employee’s affidavit of 16 November 2021 referred in detail to four categories of additional documents, production of which was opposed on grounds which were stated. In the absence of evidence that the ISLHD would, or should have held further documents, and the Applicant has not adduced such evidence, the relative antiquity of the documents sought by the Applicant, and the successful efforts of the ISLHD to locate and produce documents suggest that, even on the civil standard of proof, establishing that any breach of the relevant order was wilful, and not merely casual, accidental or unintentional would be problematic, and militate against granting an application to refer the ISLHD to the Supreme Court for contempt.

74. If, contrary to the findings recorded above, the evidence relied on by the Applicant is capable of establishing that ISLHD breached the relevant order, as the authorities make clear, that only enlivens the discretion to grant the referral application. If ISLHD breached the relevant order, there are alternative means of enforcing the order which the Applicant has not sought to invoke. Most obviously, the Applicant could have cross-examined the Respondent’s employee at the hearing on 21 December 2021 with respect to whether the “missing” documents were in fact in the possession or control of the ISLHD, and the reasonableness of ISLHD’s attempts to locate documents which were responsive to her application which ISLHD said it had “not been able to locate”, and its intentions with respect to further attempts to locate such documents.

75. As the Respondent submitted (48), if, after cross-examination of the Respondent’s employee, the Tribunal was satisfied that the ISLHD had not complied with its obligations under s 58 of the ADR Act, pursuant to s 58(4) of the ADR Act, or s 38(6)(a) of the CAT Act, it could have ordered ISLHD to produce relevant documents which had not been produced (Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208), or have directed ISLHD to make further searches for missing documents. The evidence of the Respondent’s employee having not been challenged; the Tribunal had no reason to consider making such an order. In any event, the Applicant has not referred to any evidence establishing that she sought such an order. These matters would militate heavily against exercising the discretion to grant a referral application against the ISLHD.

76. The Applicant having failed to adduce evidence capable of establishing any of the contempts alleged by her, the referral application will be dismissed.

Orders

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.

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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: 19 August 2022