Mallegowda v The Transport Secretary

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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…

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Details
Case
[2024] NSWCATEN 1
Decision Date

CaseChat Overview and Summary

Mallegowda brought proceedings against The Transport Secretary in the Civil and Administrative Tribunal of New South Wales, alleging that the Secretary had misused documents for an ulterior purpose and breached the Harman principle. The dispute centred on the handling and disclosure of documents within the tribunal process. The case was referred to the Supreme Court under section 73(5) of the Civil and Administrative Tribunal Act 2013 for resolution of the contempt allegations.

The primary legal issues before the court were whether the Secretary had indeed misused documents for an ulterior purpose and, if so, whether such misuse constituted a breach of the Harman principle. The Harman principle, derived from the decision in Harman v Seiden, asserts that a document's privileged status remains intact even if it is disclosed to a third party, provided the disclosure was not for an improper purpose. The court had to determine whether the Secretary's actions in handling and disclosing the documents fell within the scope of permissible use under the principle.

The court found that the Secretary did not misuse the documents for an ulterior purpose. The handling and disclosure of the documents were within the bounds of permissible use, and there was no evidence of an improper motive. Consequently, the Secretary did not breach the Harman principle. The application for contempt was dismissed, and the proceedings against the Secretary were terminated. The court's decision was grounded in the absence of any evidence suggesting that the Secretary acted with an improper intent or in a manner that contravened the principles of fair use and disclosure within the tribunal process.

Orders

Orders of the court

That the application filed on 26 March 2024 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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