Keddis v Pelders

[2025] NSWCATEN 1

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Keddis v Pelders [2025] NSWCATEN 1

Hearing dates:

25 November 2024

Date of orders:

28 February 2025

Decision date:

28 February 2025

Jurisdiction:

Enforcement

Before:

ADCJ Hennessy, Deputy President

Decision:

(1) The Tribunal declines to refer the matter to the Supreme Court for determination under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) Any application for costs is to be made within 7 days of the date of this decision.

Catchwords:

CONTEMPT – alleged failure to comply with summons to produce documents – whether failure capable of amounting to contempt – whether matter should be referred to the Supreme Court for determination

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Commissioner for Fair Trading v Rixon (No 5) [2022] NSWSC 146

DVI v ZTT [2021] NSWCATEN 4

Keddis v The Owners – Strata Plan No. 20198 (Civil and Administrative Tribunal), 3 September 2024, unrep)

Markisic v Commonwealth (2007) 69 NSWLR 737

Mohareb v Palmer [2017] NSWCA 281

Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277

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

Category:

Principal judgment

Parties:

Victor Keddis (Applicant)
Suzanne Pelders (Respondent)

Representation:

Applicant (self-represented)
Woodina Law (Respondent)

File Number(s):

2024/00333119

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. Mr Keddis alleges that Ms Pelders is guilty of contempt of the Tribunal because she has failed, without reasonable excuse, to comply with two summonses to produce documents issued under s 48 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The summonses relate to proceedings that were listed for hearing on 23 August 2024. Mr Keddis, who is one of five lot owners in a strata scheme, applied for the summonses to be issued to Ms Pelders who was then the director of Owners Corporate Management Services Pty Ltd (OCMS) the strata managing agent of the strata scheme. The Tribunal subsequently heard and determined those proceedings: Keddis v The Owners – Strata Plan No. 20198 (Civil and Administrative Tribunal), 3 September 2024, unrep)

2. The alleged contempt was not committed “in the face or hearing of the Tribunal”. In those circumstances the only procedure available is for the Tribunal to refer the matter to the Supreme Court for determination: NCAT Act, s 73 and Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 at 462-463. I must first determine whether the alleged conduct is capable of amounting to contempt: Mohareb v Palmer [2017] NSWCA 281 per Basten JA, with whom Sackville AJA agreed, at [19] – [20]. If it is, I must determine whether to exercise the discretion in s 73(5) of the NCAT Act to refer the matter to the Supreme Court: Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277 at [52].

3. Mr Keddis has submitted that Ms Pelders and Bannermans Lawyers are in breach of various statutory and common law duties. None of those allegations is relevant to the questions I need to decide.

4. Section 73 of the NCAT Act, dealing with contempt of the Tribunal, provides that:

73   Contempt of Tribunal

(1)  The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

Note—

Section 27(1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

(2)  A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

(2A)  Without limiting subsection (2), a person is guilty of contempt of the Tribunal if the person fails, without reasonable excuse, to comply with a summons issued for the purposes of this Act.

(3)  Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

(4)  For the purposes of this section—

(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.

Note—

Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

(5)  Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

(6)  The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

5. The onus is on Mr Keddis to prove the facts which demonstrate the conduct in question is capable of amounting to contempt of the Tribunal. I am inclined to the view that he must do so on the civil, rather than the criminal standard, but that is not a matter that is free from doubt so I have applied the criminal standard: DVI v ZTT [2021] NSWCATEN 4 at [24] – [30]. The rules of evidence apply in these proceedings: NCAT Act, s 38(3)(a)(i). The evidence from Mr Keddis comprises an affidavit dated 3 September 2024 (attached to his application for contempt); a statement filed on 3 October 2024 and a document headed “Submissions” (which contained both evidence and submissions) filed on 10 September 2024. Ms Pelders did not cross examine Mr Keddis on any of this evidence. I gave leave for Mr Keddis to tender two further documents in the course of the proceedings. Ms Pelders’ lawyers confirmed that she had received a copy of those documents by email on the morning of the hearing.

6. Ms Pelders chose not to give evidence but made submissions through her lawyer. I made directions for Ms Pelders to provide written submissions addressing all the evidence and the factual findings the Tribunal should make. Ms Pelders provided those submissions on 9 December 2024 with further submissions on 17 December 2024. Mr Keddis provided submissions in reply on 20 December 2024.

Is the alleged conduct capable of amounting to contempt of the Tribunal

First summons

7. The alleged conduct is failure to comply with two summonses to produce documents without a reasonable excuse.

8. The first summons was addressed to Suzanne Pelders and sought:

A copy of the emails by which the ballots (attached and dated 16^th and 22^nd February 2024) of lots 3 and 4 of SP 20198 were submitted to OCMS in relation to the strata committee elections at the EGM of 28 February 2024.

9. The background to this request, as set out in the application for the summons to be issued is as follows:

This matter . . . relates to whether the strata committee at the EGM of 28 February 2024 was determined by pre-meeting electronic voting in contravention of section 14A(a) of the Strata Schemes Management Regulation 2016.

. . .

The emails by which lots 3 and 4 submitted their ballots to OCMS before the meeting were not present in either the ‘email’ folder or the ‘meeting’ folder or any other folder of the records of the Owners Corporation inspected by Mr Keddis on 21 June 2024. Despite repeated requests by Mr Keddis, OCMS has refused to provide these emails of lots 3 and 4. There is no doubt that these emails exist as the ballots were received by OCMS and forwarded to the chairperson as noted in the minutes of the meeting.

10. The summons was returnable on 9 August 2024. As of 10 August 2024, Ms Pelders had not produced any documents in response to the summons. A week later, on 15 August 2024, she provided one of the emails to Mr Keddis directly. That was six days late, but still before the hearing of the matter on 23 August 2024. On 30 September 2024 Ms Pelders provided the other email to Mr Keddis directly. That was more than 7 weeks late. On 9 December 2024, following the hearing of this contempt application, Ms Pelders formally produced the documents to the Tribunal in response to the summons. The documents were produced 4 months late. There is no dispute as to these facts.

11. Ms Pelders has failed to comply with the first summons by the return date.

12. In written submissions Ms Pelders gave “several reasons” for the delay:

The first relates to the sheer amount of correspondence generated by the applicant in relation to this matter and associated matters and locating the documents requested to be produced pursuant to the summons, as well as our client completing its other usual strata management duties for this property and other properties. Secondly Ms Pelders was on leave for an extended period of time and other staff members were assisting her to respond to the summons (who were less familiar with the matter). Thirdly, a family member that worked for OCMS and with Ms Pelders unfortunately recently passed away during the time that the summons were issued to OCMS/Ms Pelders.

13. Mr Keddis’ response was that, as the “strata secretary” Ms Pelders has a duty to manage the records of the Owners Corporation and respond to all queries. Mr Keddis maintains that when he inspected all the documents of the Owners Corporation back to 2017 (remotely by Dropbox) it took him no more than 5 minutes to locate the folder marked ‘meetings’ and to see the separate folders for each general and strata meeting going back to 2017. Furthermore, if Ms Pelders is referring to the death of Kane Kennair, he passed away in April 2024, four months before the return date of the summons.

14. Ms Pelders provided no dates or other details of the unusually high workload, her absences from the workplace or the death of a family member. I am satisfied that searching for the documents would not have taken more than an hour or so. Ms Pelders has not provided a reason for giving the emails to Mr Keddis but not producing them to the Tribunal. I am not satisfied that Ms Pelders has a “reasonable excuse” for a delay of four months in producing the two emails referred to in the first summons to the Tribunal.

15. Ms Pelders conduct in failing, without reasonable excuse, to comply with the first summons by the return date, and not complying until four months later, is capable of amounting to contempt.

The second summons

16. The second summons, issued on 24 July 2024, was also addressed to Ms Pelders.

Copies of all emails sent by:

1. The strata committee to Ms Pelders instructing her to engage Bannermans Lawyers; and

2. Ms Suzanne Pelders to Bannermans Lawyers, including any attachment in particular minutes of meetings in which Bannermans Lawyers, were instructed to proceed in the matters related to SP 20198.

17. Ms Pelders produced the AGM minutes of 23 May 2022 and a costs agreement with Bannermans Lawyers and attachments but neither of the two kinds of emails described in the summons has been produced to the Tribunal. I note that the summons is for emails with minutes of meetings attached, not for the minutes of any particular meeting.

18. On the one hand, Mr Keddis says that these emails must exist because solicitors from Bannermans Lawyers refer to having received instructions to proceed with the matter. One of those emails is from David Bannerman, principal at Bannermans Lawyers, to Ms Pelders dated 27 September 2023 and states, in part:

Given the minutes confirming our engagement we will get the file upon (sic) and this aspect over to you next week.

19. Another email is from Jennifer Pham to Leah Stenta, an employee of OCMS, dated 18 July 2024:

Hi Leah, Thank you for your email, my apologies for the delay in responding to you as it has taken me longer than expected to review the file. Based on my review of the file, we do not hold a signed copy of the fee proposal. We proceeded with the matter on instructions received from Suzanne and providing a copy of the meeting minutes confirming acceptance of our fee proposal.

20. On the other hand, Mr Keddis writes in his 1 October 2024 statement that in the 12 month period from 25 September 2023 to 17 September 2024, contrary to the assertion of Mr Bannerman . . . “Bannermans Lawyers never received any minutes confirming their engagement.”

21. Mr Keddis expressed a similar understanding in interlocutory proceedings on 14 November 2024. Mr Keddis had issued a summons to Bannermans Lawyers for “the minutes of engagement” referred to in an email dated 27 September 2024 from Mr David Bannerman to Ms Suzanne Pelders” and a copy of “the meeting agenda and meeting minutes confirming acceptance of our fee proposal” referred to in an email from Ms Pham to Ms Stenta (of the respondent’s strata managing agent). In reasons for decision relating to non-compliance with that summons the Tribunal states that:

I note that during the hearing Mr Keddis told me that he thought that none of the documents sought actually exist. (Keddis v The Owners – Strata Plan No. 20198 (Civil and Administrative Tribunal, 14 November 2024, unrep))

22. On 30 September 2024 Ms Pelders provided the following response to Mr Keddis’ questions:

Ignoring any emails in which you are simply CC, did the strata committee send you any emails specifically instructing you to instruct Bannermans Lawyers to begin matters per their cost agreement of 18 September 2023? No

Did you send Bannermans Lawyers any emails (with any attachments) instructing them to begin matters per their cost agreement of 18 September 2023? No

23. On 14 November 2024, Ms Pelders produced to the Tribunal the strata committee meeting minutes of 25 September 2023 stating, “Attached minutes of Strata Committee Meeting to appoint Bannermans and all owners were emailed by Kane. Minutes typed up by our office. Email sent by Kane to all owners”.

24. Ms Pelders has expressly denied that the kinds of emails described at (a) or (b) of the second summons exists, at least in relation to the 18 September 2023 meeting. Those denials are consistent with Mr Keddis’ submission that Bannermans Lawyers never received any minutes from Ms Pelders confirming their engagement.

25. Ms Pelders’ conduct in not producing the emails referred to in the second summons is not capable of amounting to contempt because Mr Keddis has not proved that the emails exist. Failure to produce a document under summons will not be capable of amounting to contempt unless “the alleged contemnor had documents that met the description of the documents called for by the subpoena or other order to produce“: Markisic v Commonwealth (2007) 69 NSWLR 737 at 748. Having made that finding, there is no need to consider whether to exercise the discretion to refer this matter to the Supreme Court for determination.

Should the Tribunal refer the conduct relating to non-compliance with the first summons to the Supreme Court for determination?

26. I have found that Ms Pelders’ conduct in failing, without reasonable excuse, to comply with the first summons by the return date, and not complying until four months later, is capable of amounting to contempt. In those circumstances I “may refer the matter to the Supreme Court”.

27. The Supreme Court expressed the underlying rationale of the contempt power in Commissioner for Fair Trading v Rixon (No 5) [2022] NSWSC 146 at [25]:

The underlying rationale of every exercise of the contempt power is the necessity to “uphold and protect the effective administration of justice”: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46; He v Sun at [10].

28. The administration of justice may not be effective if a person fails, without a reasonable excuse, to comply with a summons to produce documents. If a person does not comply by the return date, a party may not obtain access to evidence which is relevant to the substantive proceedings. In this case Mr Keddis did obtain access to one email before the hearing on 23 August 2024, but not to the other email. Mr Keddis made no submissions as to the relevance of that email to the substantive proceedings, but there was at least the potential for the effective administration of justice to be compromised. It is also important to the effective administration of justice that documents be produced to the Tribunal, not to the party who has applied for the summons to be issued. The party can then make a claim for legal professional privilege if that is relevant.

29. There is no need for me to make any further finding in these proceedings as to whether Ms Pelders’ conduct was “casual, accidental or unintentional” as opposed to “deliberate”: Markisic v Commonwealth of Australia (2007) 69 ANSWLR 737 at [62] – [64]. I need only find whether the conduct is capable of constituting contempt. However, even if the conduct was deliberate, it was not serious enough or to justify referral to the Supreme Court. Ms Pelders ultimately produced the emails to Mr Keddis and, albeit belatedly, to the Tribunal.

Application for adjournment refused

30. At the 24 November 2024 hearing, Ms Pelders’ lawyer applied for an adjournment because she had only been briefed on the Friday afternoon, before the hearing at 10 am on Monday morning. She had been given a copy of the application itself but none of the evidence. Ms Pelders’ lawyer said she could not speak to the reasons for the delay in her being instructed but there was a third party involved. Mr Keddis opposed an adjournment.

31. On 23 October 2024, the matter was listed for hearing on 25 November 2024. Ms Pelders had four weeks to instruct solicitors but apparently did not do so until the business day before the hearing. In the absence of any evidence as to the reasons for the delay, I refuse the application for an adjournment.

Costs

32. Mr Keddis stated that he would be seeking costs and sought leave to make further submissions on paper or at a hearing. I refer Mr Keddis to the Tribunal’s publication on “Legal Costs” which contains the following statement:

Legal costs generally refer to the amount a person has been charged for legal services.  These include:

Fees charged by a barrister or solicitor to represent the client

Expenses paid on the client's behalf such as filing fees, expert witness costs and printing costs (disbursements)

. . .

Costs are generally awarded where a party is legally represented. An unrepresented party is not entitled to claim disbursements.

33. If either party considers that they are entitled to apply for costs, and that there are special circumstances justifying an award of costs, they should do so within 7 days of the date of this decision.

Orders

1. The Tribunal declines to refer the matter to the Supreme Court for determination under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. Any application for costs is to be made within 7 days of the date of this decision.

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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: 28 February 2025