Leighton-Daly v Antoinette Campbell Pty Ltd ACN 604 388 909

[2025] NSWCATEN 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Leighton-Daly v Antoinette Campbell Pty Ltd ACN 604 388 909 [2025] NSWCATEN 3

Hearing dates:

4 August 2025

Date of orders:

30 October 2025

Decision date:

30 October 2025

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ, Principal Member

Decision:

(1)   The contempt referral application filed on 29 April 2025 is dismissed.

Catchwords:

ENFORCEMENT- whether applicant adduced admissible evidence capable of establishing failure to comply with summons for production of documents constituting contempt of the Tribunal - whether discretion to refer contempt application to Supreme Court should be exercised if applicant made out case for contempt

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46

Burns v Corbett [2015] NSWCATAD 188

Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2021] HCA 21

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

DBI v ZTT [2021] NSWCATEN 4

HG v The Queen (1999) 197 CLR 414; [1999] HCA 2

Home789 Resources Pty Limited v Zheng Shang [2022] NSWCATEN 2

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

Jacomb v Australian Municipal Administrative Clerical and Services Union [2003] FCA 1143

Keddis v Peiders [2025] NSWCATEN 1

Markisic v Commonwealth (2007) 69 NSWLR 737

Mohareb v Palmer [2017] NSWCA 281

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

O’Born v Commissioner for Government Transport (1959) 77 WN (NSW) 81

Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Southern Pacific Hotel Services Inc v Southern Pacific Corp Ltd (1984) 1 NSWLR 710

Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; [1989] FCA 340

Turner v Department of Justice [2016] NSWCATAD 146

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Category:

Principal judgment

Parties:

Mathew Leighton-Daly (Applicant)
Antoinette Campbell Pty Ltd ACN 604 388 909 and Antoinette Campbell (Respondents)

Representation:

Applicant (self-represented)
Mullane & Lindsay (Respondents)

File Number(s):

2025/00215202

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. By application filed 29 April 2025 the Applicant sought an order pursuant to s 73(5) of the Civil and Administrative Tribunal Act2013 (NSW) (the CAT Act) that the Respondents be referred to the Prothonotary of the Supreme Court of New South Wales to be dealt with for contempt of the Tribunal (referral application).

2. The contempt alleged by the Applicant involved breaches of a Summons for the production of documents issued by him to the Respondents. The alleged breaches were particularised as:

1. the Respondents did not produce the emails between themselves and Raine & Horne Bowral;

2. the Respondents did not produce metadata in relation to the draft Contract prepared by it.

3. The Respondents opposed the application.

Material before the Tribunal

4. In support of the contempt referral application, the Applicant relied upon an Affidavit, together with exhibits, sworn by him on 31 January 2025, an Affidavit, together with exhibits sworn by him on 24 March 2025, and an Affidavit, together with exhibits sworn by him on 25 August 2025.

5. The Respondents elected to file evidence in the contempt referral application.

6. The Applicant filed submissions in support of the referral application on 25 June 2025, supplementary submissions on 25 August 2025 and, pursuant to leave granted by consent, further supplementary submissions on 22 September 2025.

7. The Respondents filed submissions on 10 July 2025. The Respondents filed an Affidavit and exhibits on 5 March 2025 and an Affidavit on 11 April 2025.

8. The Respondents filed an affidavit of the second Respondent of 12 September 2025, and submissions in reply dated 15 September 2025.

9. On 22 September 2025 the Applicant filed further submissions.

10. On 14 October 2025 the Tribunal received a statement by Melanie Gilbert referring to a Summons issued to her to attend the Tribunal on 4 November 2025. The Tribunal has regard only to the fact that the Applicant has apparently caused a Summons to issue to Ms Gilbert to attend the Tribunal. The relevance of that circumstance will become apparent later in these reasons.

Background to the proceedings

11. Prior to December 2024 the Applicant and his former spouse were engaged in proceedings in the Federal Circuit and Family Court of Australia (FCFCOA), pursuant to the provisions of the Family Law Act. Those proceedings related to financial and parenting issues. The Respondents acted on behalf of the Applicant’s spouse in those proceedings. The Applicant was also represented by solicitors in those proceedings.

12. On 26 September 2024, by consent, the FCFCOA made Final Orders finally resolving financial matters in dispute between the Applicant and his former partner. On 19 December 2024, by consent, the FCFCOA made Final Orders with respect to the parenting of the parties’ children.

13. On 19 December 2024 the Applicant filed an Application and Points of Claim in the Consumer and Commercial Division of the Tribunal seeking damages from the Respondents in the sum of $100,000 (the substantive proceedings). On 3 February 2025 the Applicant served Amended Points of Claim in the substantive proceedings. On 13 March 2025 the Respondents served their Defence to the Amended Points of Claim.

14. The Applicant alleges that the Respondents purported to act for him and his former partner in relation to the sale of their jointly owned former matrimonial home. It does not seem to be controversial that the orders of the FCFCOA provided for the sale of the home. For present purposes nothing turns on that.

15. As is not in doubt, having acted for his former spouse in FCFCOA litigation, the Respondents could not act for the Applicant in relation to the sale of the former matrimonial home without his consent. The Applicant did not ever give such consent.

16. The substance of the Applicant’s Points of Claim in the substantive proceedings is that, by purporting to act on his behalf in relation to the sale of his former matrimonial home without his authority or consent, the Respondents:

1. breached s 21 of the Australian Consumer Law;

2. breached their duty of care to him;

3. breached s 18 of the Australian Consumer Law;

4. breached the Legal Profession Uniform Law Australian Solicitors Conduct Rules;

5. failed to make a costs disclosure; and

6. breached s 50 of the Australian Consumer Law.

17. The Respondents denied each of the breaches or failures alleged by the Applicant on various grounds which do not assume significance for present purposes.

18. On 5 February 2025, at the request of the Applicant, the Tribunal issued a Summons directed to the Respondents to produce:

1. All documents (a) obtained, (b) prepared and/or (c) modified by the First Respondent in relation to the conveyance of (X) including but not limited to costs disclosures, property searches, title certificates, draft contract/s and director/staff timesheets in relation to professional work done.

2. Metadata for the above documents identifying when the document was obtained, created and/or modified (e.g. in the case of MS Word documents via a screenshot of ‘File; Properties’ data).”

   19. The Respondents dispute that they failed to produce any document, as that term is understood in law, within their possession or control. The Respondents apparently did not seek to have the summons set aside on any basis. In these proceedings, the Respondents have not asserted that the terms of the summons were uncertain, or otherwise oppressive (Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd (1984) 1 NSWLR 710), or a substitute for discovery (Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869). The evidence does not establish that the Summons was issued other than for a legitimate forensic purpose (ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307).

   20. Unlike many contempt referral applications, in which the only evidence before the Tribunal is that adduced by an applicant, in this case, the Respondents have filed evidence asserting that they have not failed to comply with the Summons addressed to them. As is not in doubt, the Tribunal is not determining the merits of a contempt application. Rather, the Tribunal is required to determine whether the evidence relied upon by the Applicant is capable of establishing a contempt of the Tribunal.

Principles governing the application

21. Section 73(2A) of the CAT Act provides that failing without reasonable excuse to comply with a Summons issued for the purposes of the Act may constitute contempt of the Tribunal. Section 73(2A) removes the uncertainty which decisions prior to the amendment of the Act in September 2023 identified (see Home789 Resources Pty Limited v Zheng Shang [2022] NSWCATEN 2). The Respondents accept that the referral application falls within the Tribunal’s jurisdiction.

22. In order for the discretion to refer the Respondents to the Supreme Court to be dealt with for contempt to be enlivened, the Applicant must adduce admissible evidence of conduct which is capable of amounting to contempt (Mohareb v Palmer [2017] NSWCA 281). Unlike other proceedings in the Tribunal, pursuant to s 38(3)(a) of the CAT Act, the Tribunal must observe the rules of evidence in these proceedings. There would be little point in doing otherwise, given that, if the contempt referral application is granted, the Prothonotary of the Supreme Court would not proceed on the basis of evidence which was inadmissible.

23. In Bott v NSW Land and Housing Corporation (No. 2) [2018] NSWCATCD 2 the Tribunal said at [24] that, in an application pursuant to s 73 of the CAT Act, there were two principal matters for consideration, they being:

1. the part that contempt plays in the enforcement proceedings of the Tribunal; and

2. the need to uphold and advance the integrity of the system of justice in New South Wales.

24. As is not in doubt, granting a contempt referral application is discretionary (Burns v Corbett [2015] NSWCATAD 188, Mohareb at [22]). If the conduct complained of is held to be capable of amounting to contempt, the Tribunal nevertheless has a discretion to decline to grant the contempt referral application.

25. The power to punish for contempt is to be used sparingly and only in serious cases (Mohareb v Palmer (No. 4) [2017] NSWDC 127; DBI v ZTT [2021] NSWCATEN 4). To constitute contempt, conduct must amount to wilful, as opposed to “a casual, accidental or unintentional” failure to comply with, in this case, a Summons (Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46; Turner v Department of Justice [2016] NSWCATAD 146).

26. The discretion to grant a contempt referral application is informed by, whether there are other remedies available to secure compliance with the Summons, and the extent to which the party seeking referral has sought to enforce the Summons for production of documents. If an applicant has not pursued either of those avenues of redress, the discretion to refer is unlikely to be exercised.

27. It is generally accepted that the criminal standard of proof, beyond reasonable doubt, applies to civil contempt proceedings (Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3, Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21). That being so, in order to succeed with his contempt referral application, the Applicant needs to adduce evidence which is capable of establishing beyond reasonable doubt that the conduct complained of constitutes contempt of the Tribunal.

28. The Tribunal will only grant a contempt referral application which is sufficiently serious. That determination is fact sensitive. If the Applicant makes out his case for referral, the Tribunal would not decline him the relief he seeks on seriousness grounds. If a person who the Tribunal directs by Summons to produce documents is found to have wilfully and without reasonable excuse failed to do so, that is a serious matter. That is even more so if the person is a legal practitioner. The enactment of s 73(2A) of the CAT Act reinforces finding that wilful and unexcused failure to comply with a Summons is a serious matter.

29. Before a witness can be dealt with for contempt for failing to produce a document on Summons, there must be evidence both that the document exists, or did exist, and that the witness had it in his/her possession, and has the capacity to produce the document (O’Born v Commissioner for Government Transport (1959) 77 WN (NSW) 81). The Applicant needs to adduce admissible evidence capable of establishing those matters if his application is to be granted.

30. Section 48 of the CAT Act is concerned with the “issue of Summons”. Section 48(3) of the CAT Act provides that a Summons issued by the Tribunal may require the person to whom it is addressed (a) “to attend and give evidence” or (b) “to attend and produce documents or other things” or both. The CAT Act does not expressly provide for the examination of a person who is required attend the Tribunal in response to a Summons issued pursuant to s 48. Rule 34 of the Civil and Administrative Tribunal Rules 2014, which is concerned with the “issue of Summons” does not expressly so provide. The Summons issued by the Tribunal on the application of the Applicant in this case was apparently for production of documents only. There is no rational basis for suggesting that a person Summonsed to attend and give evidence could not examined on oath or affirmation in relation to any asserted non-compliance with the Summons to produce documents (Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; [1989] FCA 340).

The submissions of the Applicant of 25 June 2025

31. In the course of his initial submissions, the Applicant disputed the allegations of the Respondents in their affidavit evidence. As recorded earlier, unless the evidence renders unarguable a disputed fact, the Tribunal proceeds on the basis that, if established by admissible evidence, the conduct alleged by the applicant is capable of constituting a contempt of the Tribunal.

32. The Applicant relied on the definition of “document” in the Evidence Act1995 (NSW) the dictionary to which provides that “document” means:

“any record of information, and includes-

(a)   anything on which there is writing, or

(b)   anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

(c)   anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d)   a map, plan, drawing or photograph.”

33. The Applicant emphasised the definition of “document” in (c) above, and submitted that the statutory definition of “document” “clearly catches data”, and “metadata”. Without expressing a concluded view, the Tribunal proceeds on the basis that metadata is capable of constituting a “document” production of which could be required to be produced in response to a Summons.

34. The applicant acknowledged that, on 25 February 2025 the Respondents produced “certain documents to the Tribunal in purported compliance” with his Summons. On 11 March 2025 the Applicant “raised concerns about the First Respondent’s compliance with the Summons” with the lawyer acting for the Respondents. The Applicant submitted that, on 14 March 2025, at a Directions Hearing, the First Respondent, via its lawyer, informed the Tribunal that it had complied with the Summons in full, a claim which he rejects. The Applicant referred to the ability of the Respondents to object to and have a Summons set aside (see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145). There is no evidence that the Respondents ever sought to do that. In this application there is accordingly no basis for failing to find that the Applicant has adduced evidence capable of establishing that the Respondents:

1. knew of the Summons and its contents, and

2. did not dispute that it was addressed to them and was validly issued.

35. The Applicant alleged that, in breach of the Summons, the Respondents did not produce communications between themselves and Raine & Horne Bowral. Attached to the Applicant’s Second Affidavit, at pages 290-312 he set out the contents of those emails, which, as is apparent, the Applicant obtained from Raine & Horne. The Applicant further alleged that the Respondents “also removed the footers from the emails they produced between the Respondents and the Applicant’s ex-wife and only produced some of the emails within the relevant email trail”, which he particularises (paragraph 27). Prima facie, emails between the Respondents and the Applicant’s former partner, for whom they acted in the Family Law proceedings, would attract legal professional privilege, but nothing turns on that for present purposes.

36. The Applicant identified that the Summons was issued to the First Respondent and that the Second Respondent is the solicitor Director of the First Respondent and “aided, abetted, counselled and/or procured the First Respondent’s non-compliance with the Summons”. For present purposes, and, although legally qualified, as the Applicant is a litigant in person, the Tribunal does not engage, or need to engage, with distinctions, if there be any, between the First and/or Second Respondent. If the Applicant adduces evidence which is capable of establishing that the conduct of the First and/or Second Respondent constitutes contempt of the Tribunal, and doing so is not vitiated by discretionary considerations, the referral application will be granted. In those circumstances, whether the Prothonotary prosecuted either or both Respondents for contempt would be a matter for the Prothonotary.

37. The Applicant made a number of submissions about the merits of the substantive proceedings. In determining the contempt referral application, the Tribunal is concerned only with whether admissible evidence adduced by the Applicant is capable of establishing beyond reasonable doubt conduct of the Respondents with respect to the Summons for production of documents which constitutes contempt of the Tribunal.

38. In his supplementary submissions, the Applicant referred to his Affidavit of 25 August 2025, and helpfully referred to the decision of the Tribunal in Keddis v Peiders [2025] NSWCATEN 1, in which it was found that late production pursuant to a Summons was capable of constituting contempt. As the Tribunal’s reasons in that case record, the applicant alleged that the respondent had failed to comply with two Summonses to produce documents without a reasonable excuse. The first Summons identified copies of emails. The respondent was found to have produced no documents in response to the Summons by its return date and to have subsequently “six days late” provided one of the emails required to be produced under the Summons and, more than “seven weeks late” produced further documents, and subsequently, more than two months later, following the hearing of the contempt referral application, formally produced documents in response to the Summons, albeit “four months late”. For the reasons which the Tribunal recorded, by reference to evidence given by the respondent, the Tribunal was not satisfied that the respondent had a reasonable excuse for a delay of four months in producing the two emails referred to in the first Summons to the Tribunal. That conduct was found to be capable of amounting to contempt. The respondent’s ability to produce the documents, albeit later than required by the Summons precluded any suggestion that the documents required did not exist or were unable to be produced. Clearly they were able to be and were produced.

35. The second Summons which gave rise to the contempt referral application required the production of copies of two identified categories of email. The Tribunal recorded that the Summons was for “emails with minutes of meetings attached, not for the minutes of any particular meeting”. The applicant asserted that the emails “must exist” because solicitors referred to having received instructions from the respondent. The Tribunal referred to the email exchanges between the parties and recorded [24] that the respondent had expressly denied that the “kinds of emails” required pursuant to the second Summons existed. The Tribunal found [25] that the respondent’s conduct in not producing the emails referred to in the second Summons was not capable of amounting to contempt because the applicant “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]). The contempt referral application in reliance upon the second Summons thus failed.

36. The Tribunal considered whether it should exercise the discretion to refer the respondent’s failure to comply with the first Summons by the return date and not complying with it until four months later should be referred to the Supreme Court. The Tribunal reiterated [28] that 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. The Tribunal found there was “at least the potential” for the effective administration of justice to be compromised.

37. In a passage upon which the present Respondents rely, the Tribunal recorded [29] that “Even if the conduct was deliberate, it was not serious enough or [sic] to justify referral to the Supreme Court” as, albeit belatedly, the respondent ultimately produced the documents referred to in the Summons. The Tribunal accordingly declined to refer the contempt referral application to the Supreme Court. The facts found in that case differ materially from those alleged in this case.

38. The Applicant engaged in some detail with “metadata”. The Tribunal accepts the Applicant’s submission that “metadata” falls within the statutory definition of “document” referred to earlier. The Applicant’s submissions did not engage with what is ultimately the critical issue in these proceedings which is whether the Applicant has adduced evidence which is capable of establishing beyond reasonable doubt that the metadata or other documents which the Respondents allegedly failed to produce were capable of being produced, either directly in hard copy form or, by retrieval of metadata and publication of it in hard copy form.

The submissions of the Respondents of 9 July 2025

43. The Respondents identified, accurately, that the Applicant’s complaint was not with respect to the failure to produce documents in response to the Summons, but rather to the “scale of compliance”. The Respondents referred to documents which are in evidence in the present application which the Applicant obtained from Raine & Horne in 2025, which included emails in which the Second Respondent, or an employee of the First Respondent was or were the recipient, sender or copied into. The Respondent referred to the Affidavit of the Second Respondent alleging that the emails were not saved in the file and therefore unable to be produced pursuant to the Summons. The Respondents submitted that they could not produce documents which they did not have in their possession or control.

44. The truth or otherwise of the Respondents’ allegations are not matters with which the Tribunal can engage in this application. The allegations made by the Applicant are not glaringly improbable. It is however relevant when determining whether the evidence relied upon by the Applicant is capable of establishing beyond reasonable doubt that the documents complained of were whether existing or able to be created by retrieval from electronic devices or recordings in the possession or control of the Respondents. The Tribunal cannot accept the contention of the Respondents that it can and should be found in these proceedings that the documents which were not produced were not in the possession or control of the Respondents. If the evidence relied upon by the Applicant is capable of establishing that the non-production of documents referred to in the Summons were within the possession or control of the Respondents, the Applicant would have discharged the onus he bears in that regard. Whether the applicant has adduced admissible evidence capable of establishing that requires consideration.

45. The Respondents engaged with the Applicant’s allegations about false and misleading statements. Whilst those allegations may assume significance in the substantive proceedings, as the contempt referral application is based on alleged failures to comply with the Summons without reasonable excuse, the Tribunal need not engage further with those allegations.

The Applicant’s Submissions of 22 September 2025

46. The Applicant disputed the allegations made by the Respondents. As noted earlier in these reasons, the capacity of those allegations to found a contempt is the focus of the Tribunal’s attention.

47. In his further submissions, the Applicant reiterated his complaints with respect to the asserted failure of the Respondents to produce “metadata”. The Applicant disputed any suggestion by the Respondents that he had failed to object to the alleged non-compliance with the Summons in a timely way. That is a factual controversy which, for the reasons which follow, the Tribunal need not determine, although without hearing contested evidence, which is inappropriate in a contempt referral application, the Tribunal could not make findings about that in any event.

48. The Applicant was concerned in his further submissions to assert that his Summons had a legitimate forensic purpose. In the absence of evidence that the Respondents have resisted the Summons on that basis, and the Tribunal is not aware of such evidence, the contempt referral application is determined on the basis that the Applicant’s Summons was for a legitimate forensic purpose.

Consideration

49. As the provisions of s 38(3)(a)(i) of the CAT Act confirm, in exercising its enforcement jurisdiction, the Tribunal must observe the rules of evidence. There is a logical reason why that is so. If the contempt referral application is granted, the Prothonotary would only prosecute the referred application in reliance upon admissible evidence. Quite apart from the mandatory requirement of s 38(3)(a)(i) of the CAT Act, there would simply be no utility in granting a contempt referral application in reliance upon material which was not admissible in accordance with the rules of evidence in those circumstances.

50. Implicit in the Applicant’s application are two factual assertions. The first allegation is that the metadata which he alleges has not been produced in response to the Summons must exist. The second allegation is that it must be within the power or control of the Respondents to produce that metadata in response to the Summons. The Applicant has not adduced evidence from a person qualified to give evidence with respect to either of those matters. Nor has the Applicant qualified himself to give such evidence. They are not matters of common knowledge or notoriety such that the Tribunal could accept lay opinion evidence with respect to them. The Applicant has not adduced evidence capable of establishing that the matters constitute knowledge which is not reasonably open to question and satisfies the requirements of s 144(1)(a) or (b) of the Evidence Act1995 (NSW).

51. Section 79 of the Evidence Act provides that:

1. If a person has specialised knowledge based on the person’s training study or experience, the opinion rule does not apply to evidence of an opinion of that person that his wholly or substantially based on that knowledge.”

   52. There are three mandatory requirements for the receipt of opinion evidence pursuant to s 79, they being:

   1. that the person has “specialised knowledge”;

   2. that specialised knowledge is based on the person’s training, study or experience; and

   3. the opinion is “wholly or substantially” based on that specialised knowledge.

   53. The requirement of “specialised knowledge” has two components, they being that there must be “knowledge” as opposed to “belief”, and that the knowledge must be “specialised” rather than “generally held in the community” (Uniform Evidence Law 19^th Ed. page 589).

   54. The expertise necessary to give opinion evidence may be derived from a combination of training, study and experience. It may be that, unlike, for example a legal or health professional, no particular formal training or study is required, and possible, in some circumstances, that expertise could be derived entirely from experience.

   55. The final requirement is that the opinion is based, at least substantially, on specialised knowledge. The High Court accepted in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 that an expert opinion should differentiate between assumed facts upon which the opinion is based and the opinion in question.

   56. In Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 the High Court reiterated the need for an expert opinion to evidence a sufficient connection between the opinion and relevant specialised knowledge.

   57. With respect to him, the Applicant has not adduced evidence capable of establishing the existence or availability of the metadata he seeks beyond reasonable doubt. On that basis alone the contempt referral application fails.

   58. A further basis upon which the application fails relates to the ability of the Respondents to produce the metadata if it in fact exists. Implicit in the Applicant’s contentions is the proposition that the metadata must exist, and that it must be within the power or control of the Respondents to retrieve or otherwise cause the metadata to be produced. There is a distinction between a “document” which is in existence and can be produced pursuant to a Summons, including documents stored electronically which can be retrieved and printed out, and the creation of a new document which does not currently exist, and requires skill to create (Jacomb v Australian Municipal Administrative Clerical and Services Union [2003] FCA 1143). In the Tribunal’s view, if they can be proved, the necessary facts would be proved by relevant expert opinion evidence, which the Applicant has not adduced evidence. Nor has he qualified himself to give such opinion evidence pursuant to s 79 of the Evidence Act. On both those bases, the contempt referral application fails.

   59. If, contrary to the Tribunal’s findings, the evidence adduced by the Applicant is capable of establishing a contempt beyond reasonable doubt, the Tribunal would not exercise its discretion to grant the contempt referral application. It appears from the recent evidence filed by the Respondents that the Applicant has caused a Summons to a person to attend the Tribunal, inferentially to enable the Applicant to examine the summonsed witness in relation to the alleged failure to produce metadata. If that is the case, the Tribunal would not exercise its discretion to grant the contempt referral application.

   60. Section 48(3)(a) of the CAT Act provides that a Summons may require a witness to “attend and give evidence”. Section 48(3)(c) refers to a witness being required to “attend and produce documents”. Those provisions, and particularly the former provision, would enable the Applicant to test the Respondents’ claims with respect to the alleged failure to produce documents. If the witness summonsed unreasonably refuses to attend in response to the Summons, or to answer questions asked with respect to the subject matter of the Summons, the Applicant has other remedies available to him. It is also relevant that, if the Respondents unreasonably fail to produce documents which are or should be available to them, the Tribunal hearing the substantive proceedings can potentially draw inferences adverse to the Respondents’ case in reliance upon the failure to produce those documents (see Manly Council v Byrne and Anor [2004] NSWCA 123).

   61. In Keddis v Peiders [2025] NSWCATEN 1, Deputy President Hennessy ADCJ helpfully considered the underlying rationale of the contempt power in the context of the exercise of discretion to refer an application which was found to be capable of amounting to contempt to the Supreme Court. Her Honour referred to the decision in Commissioner for Fair Trading v Rixon (No. 5) [2022] NSWSC 146 in which it was held, at [25] that “the underlying rationale of every exercise of the contempt power is the necessity to “uphold and protect the effective administration of justice””, a reference to the decision of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46. Her Honour observed at [28] that the administration of justice “may not be effective if a person fails, without a reasonable excuse, to comply with a summons to produce documents”, for reasons which her Honour explained.

   62. In this case, either the Applicant has not sought to avail himself of the ability to summons the Second Respondent, or an employee of the First Respondent to attend the Tribunal and be examined by the Applicant on the Summons. Alternatively, if as may be the case, the Applicant has now adopted that procedure, that would also be a reason for declining to grant the referral application. Either way, the Tribunal would not exercise the discretion to refer the Respondents, or either of them, to the Supreme Court to be dealt with for contempt.

Orders

1. The contempt referral application filed on 29 April 2025 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: 30 October 2025