Mallegowda v The Transport Secretary

[2024] NSWCATEN 1

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mallegowda v The Transport Secretary [2024] NSWCATEN 1

Hearing dates:

26 April 2024

Date of orders:

31 July 2024

Decision date:

31 July 2024

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ, Principal Member

Decision:

That the application filed on 26 March 2024 is dismissed.

Catchwords:

CONTEMPT — referral to Supreme Court pursuant to s 73(5) of the Civil and Administrative Tribunal Act 2013 — whether Respondent misused documents for ulterior purpose — whether Respondent breached the Harman principle

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Canterbury Bankstown Council v Payce Communities Pty Limited [2019] NSWSC 1419

DVI v ZTT [2021] NSWCATEN 4

Esso Resources Ltd & Ors v The Honourable Sidney James Plowman & Ors [1995] HCA 19

Harman v Secretary of State for the Home Department (1983) 1 AC 280

Hearn v Street [2008] HCA 36

Helicopter Aerial Surveys Pty Limited v Gary Robertson [2015] NSWSC 2104

Jones v Treasury Wine Estates Limited (No. 4) (2020) FCA 1131

Mallegowda v Secretary of the Department of Transport [2024] NSWCATAD 77

Mann v Medical Defence Union Ltd [1997] FCA 45

Moore v Bond University Limited [2023] NSWSC 1129

Street & Ors v Hearn & Anor [2007] NSWCA 113

Treasury Wine Estates Limited v Maurice Blackburn Pty Limited (2020) FCAFC 226

Category:

Principal judgment

Parties:

Shashikanth Mallegowda (Applicant)
The Transport Secretary (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Spark Helmore (Respondent)

File Number(s):

2024/00116697

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. On 26 March 2024, Shashikanth Mallegowda (Applicant) filed an application seeking that the Transport Secretary for the State of New South Wales (Respondent) be referred to the Supreme Court pursuant to s 73(5) of the Civil and Administrative Tribunal Act2013 (NSW) (CAT Act) to be dealt with for contempt of the Tribunal.

2. The application pleaded that “The alleged conduct of Respondent (Transport Secretary – Josh Murray) and their legal representatives including Mr Martin Watts (Junior Counsel), Ms Felicity Edwards (solicitor on records), Ms D Al-Haj Qasam (solicitor) and Ms Elyse Galvin (instructing solicitor)) for contempt of court” on the basis that, as the grounds pleaded by the Applicant alleged, the Respondent and the Respondent’s legal representatives “misused the documents (amended application for victimisation dated 24 May 2023 from Industrial Relations Commission) for ulterior purposes by emailing and tendering that document to another jurisdiction (NCAT) on 13 March 2024”.

3. The Respondent was submitted to have provided the document to the Tribunal and “repeatedly referred to the information/contents of that document” in submissions made on behalf of the Respondent. The Respondent was submitted to have thereby “breached the implied undertaking for using the document from one proceeding to other proceedings without the leave of the Industrial Relations Commission”. The use or information obtained or produced under the compulsory processes or rule of court or process of the court cannot be used for “collateral or ulterior purpose” in an unrelated proceeding. Here the amended victimisation application was filed and served to the Respondent according to the court compulsory process and rules of the court. The 5 page amended application contains huge personal information and the Respondents being senior legal practitioner and other two solicitors have breached on the face of the court because on 13 March 2024 towards the end of the proceedings I raised the breach of implied undertaking before the Tribunal.

4. The Respondent denied that reliance upon the Applicant’s amended application in the Industrial Relations Commission of New South Wales (“IRC application”) was capable of constituting a contempt of the Tribunal. In a letter written on behalf of the Respondent to the Applicant on 28 March 2024 the Respondent asserted that the application was misconceived in fact and in law, but that, if the Applicant wished to persist with it, the appropriate place in which to do so was the Industrial Relations Commission.

Applicant’s submissions

5. In his submissions in support of the referral application, the Applicant referred to the “Harman rule” which emerged from the decision in Harman v Secretary of State for the Home Department (1983) 1 AC 280. It is convenient to refer throughout these proceedings to the implied breach of undertaking relied upon by the Applicant as the Harman undertaking. The Applicant submitted, in reliance upon the Harman rule, that the Respondent could not rely upon information or evidence produced by him in the Industrial Commission proceedings for collateral or ulterior purposes in proceedings in the Tribunal unrelated to those proceedings, without first seeking the consent or leave of the Applicant or the relevant court or tribunal.

6. The Applicant relied upon the decision of the Court of Appeal, subsequently affirmed by the High Court in Street & Ors v Hearn & Anor [2007] NSWCA 113 and Hearn v Street [2008] HCA 36 respectively. The Applicant relied upon the statement by the High Court at [96] that:

“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence”.

7. The Applicant relied upon r 21.7(1) of the Uniform Civil Procedure Rules 2005 which provides that:

“No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purpose of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.”

8. The Applicant submitted that the conduct of the Respondent was capable of constituting a “collateral” or “ulterior” purpose in the context of the alleged breach of the Harman rule. In Mann v Medical Defence Union Ltd [1997] FCA 45 the Federal Court held that “Usually, if not invariably, the use of documents disclosed in one action for the purposes of another action will be a collateral or ulterior purpose, even where the parties to both actions are identical and where the causes of action are identical”.

9. The Respondent’s use of the Applicant’s amended application in the Industrial Commission was submitted to have been for the collateral or ulterior purpose of supporting the Respondent’s defence in proceedings between the parties in the Tribunal (Mallegowda v Secretary of the Department of Transport [2024] NSWCATAD 77).

10. The Applicant relied upon the decision of the High Court in Esso Resources Ltd & Ors v The Honourable Sidney James Plowman & Ors [1995] HCA 19 in which it was said at [42] that:

“It would be inequitable if a party were compelled by a court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, e.g. discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.”

11. The Applicant submitted that his amended application in the Industrial Commission was provided to the Respondent “as a result of compulsory court order and procedure” and was thus, if not otherwise, protected from disclosure in the proceedings in the Tribunal by the Harman undertaking.

Respondent’s submissions

12. The Respondent also referred to the decision of the High Court in Hearn, and particularly to the Judgment of Hayne, Heydon and Crennan JJ at [96] in which their Honours said:

“Where one party to ligation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purpose of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.”

13. The Respondent submitted that the preponderance of recent authorities has held that the implied undertaking does not apply to pleadings and other similar documents. That contention was submitted to be supported by Canterbury Bankstown Council v Payce Communities Pty Limited [2019] NSWSC 1419, Jones v Treasury Wine Estates Limited (No. 4) (2020) FCA 1131, Treasury Wine Estates Limited v Maurice Blackburn Pty Limited (2020) FCAFC 226, Moore v Bond University Limited [2023] NSWSC 1129 and Helicopter Aerial Surveys Pty Limited v Gary Robertson [2015] NSWSC 2104 where Brereton J said at [35] “It has never been the case that pleadings have been regarded as subject to the implied undertaking, nor other evidence served in support of the pleadings, such as the claim book”.

14. The Respondent disputed that the victimisation application had been filed pursuant to orders of the Industrial Relations Commission. The Respondent submitted, correctly, that the orders facilitating the filing of the IRC application resulted from a request by the Applicant for leave to amend his application to which the Respondent consented. It was thus submitted that the IRC application was not a document that was produced under compulsion, but rather was a document which the Applicant voluntarily filed in the Industrial Relations Commission setting out “the scope of the issues to be determined by the Commission in the Applicant’s application for relief from victimisation”.

15. In support of his case, the Respondent referred to the Judgment of Henry J in Payce Communities at [121]-[122] where Her Honour said:

“121   Pleadings are, in my view, of a different nature to the species of other documents to which the implied undertaking applies. A pleading is a document which a party voluntarily files with the court and serves on another party to set out the scope of the issues to be determined by the court. In that sense, pleadings are not produced on compulsion as part a court process.

122   Accepting that Council’s defence documents were served in accordance with orders made by this Court is not, in my opinion, enough to bring them within the “Harman” principle and subject to the implied undertaking. A defendant is not compelled by a court to put forward a defence by filing a list response, or to disclose evidence by way of documents and information at that time. The rules of the court require a defendant, if it chooses to defend the claim by lodging a list response, to admit or deny the allegations and provide particulars in support.”

16. The Respondent relied on the Applicant’s requirement for leave to bring his discrimination complaint in the Tribunal, to the extent that the issues in that complaint were issues which were the subject of the Industrial Relations Commission proceedings. The IRC application was thus submitted to have been “relevant to the Tribunal’s assessment of leave, to objectively ascertain whether there was an overlap of issues” between the complaint in the Tribunal and the Industrial Relations Commission proceedings and that it would have been “impossible to make this assessment without having some regard to what was contained in the victimisation application”.

17. The Respondent submitted that even if there was, contrary to the Respondent’s primary position, an implied undertaking, that undertaking would be to the Commission and not to the Tribunal. It was submitted, without reference to authority, that “There can be no contempt of the Tribunal because the victimisation application was not filed in the Tribunal. The Commission is the proper place and jurisdiction in which any contempt application in respect of the implied undertaking should have, but has not, been raised”.

18. There is an obvious argument to the contrary, given that the integrity of proceedings in the Tribunal is a matter with which the Tribunal is concerned and, arguably, could consider that a breach of the Harman principle in an appropriate case could constitute contempt of the Tribunal. In the absence of this issue having been more extensively agitated, and as the Applicant is unrepresented, the Tribunal is disinclined to express a concluded view about it. It does not need to in order to determine the referral application any event.

19. The Respondent accordingly submitted that the evidence relied upon by the Applicant was not capable of constituting contempt of the Tribunal, and the referral application should be dismissed.

Consideration

20. The principles governing the application are not in doubt. It is no part of the Tribunal’s function to determine the merits of the application, but simply whether the conduct complained of by the Applicant is “capable” of establishing contempt (DVI v ZTT [2021] NSWCATEN 4). The rules of evidence apply in these proceedings (ss 33 and 38(3) of the CAT Act). As Armstrong J accepted in DVI, the power to refer a contempt application to the Supreme Court is discretionary, and underlined by a consideration that the power to punish for contempt is appropriately invoked “sparingly and only in serious cases”.

21. Irrespective of whether the Tribunal is the correct forum in which to bring the present referral application, it should be dismissed, as the evidence relied upon by the Applicant is not capable of establishing beyond reasonable doubt that the Respondent breached the Harman rule by relying, to the extent that the Respondent did, on the victimisation application filed by the Applicant in the Industrial Relations Commission.

22. Nothing to which the Applicant has referred the Tribunal establishes that his victimisation application was not on the public record. Nor does anything to which the Applicant has referred establish that the Applicant’s filing of that application, or inclusion in it of any fact or circumstance, was by compulsion of law. The Applicant sought leave, which was granted without opposition, to file his amended victimisation application in the Industrial Relations Commission.

23. If not a “pleading” in the strict sense, the application was, as an initiating process, by its nature a pleading. In those circumstances, as the authorities to which the Tribunal has referred make clear, the use of the application by the Respondent was not constrained by the Harman principle. As the Respondent submitted, reliance upon the application by the Respondent in the proceedings in the Tribunal visited no prejudice, injustice or unfairness on the Applicant and was necessary in order that any “overlap” between the proceedings could be identified and the risk of duplicity of proceedings could be avoided.

24. Nothing to which the Applicant has referred suggests, much less establishes, that the Respondent’s reliance upon his victimisation application in the Industrial Relations Commission in any way prejudiced his case in the Tribunal. The application is dismissed.

Orders

1. That the application filed on 26 March 2024 is dismissed.

**********

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: 31 July 2024