Ormonde v NSW National Parks and Wildlife Service

[2003] NSWADT 267

CITATION:	Ormonde v NSW National Parks and Wildlife Service [2003] NSWADT 267
DIVISION:	General Division
PARTIES:	APPLICANT Peter Ormonde RESPONDENT NSW National Parks and Wildlife Service
FILE NUMBER:	033238
HEARING DATES:	20/11/03; 24/11/03
SUBMISSIONS CLOSED:	11/24/2003
DATE OF DECISION:	12/17/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Summons - application to set aside
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:	Morgan -v- Director General, Department of Education and Training & anor [2000] NSWADTAP 3
REPRESENTATION:	APPLICANT In person RESPONDENT S Prince, barrister
ORDERS:	Orders made on 24 November 2003; Each of the summonses issued to Ms Sylvia Lowe, Mr. Chris Perkins, Ms Kate Molloy and Mr. Brian Gilligan is set aside.

1 This decision concerns an application to set aside certain summonses issued by the Registrar of the Administrative Decisions Tribunal (“the Tribunal”) at Mr. Ormonde’s request. The summonses requested that four individuals appear and give evidence at the hearing of the substantive matter. The individuals named in the summonses are Ms Sylvia Lowe, Mr. Chris Perkins, Ms Kate Molloy and Mr. Brian Gilligan.

2 At the hearing of this application on 24 November 2003 I made orders setting aside those summonses. Mr. Ormonde was not present on that occasion and has requested reasons for my decision. These reasons are provided in response to that request.

3 The substantive matter relates to an application by Mr. Ormonde to the NSW National Parks & Wildlife Service (“the Agency”) for access to certain documents under the Privacy and Personal Information Protection Act 1998 (“the Privacy Act”).

4 On 20 November 2003 Mr. Prince appeared on behalf of each of the individuals named in the summonses and brought an application to have each of these summonses set aside. Mr. Prince and Mr. Ormonde both appeared on that day.

5 An issue in the principal proceeding is whether the Agency has conducted an adequate search for documents covered by Mr. Ormonde’s application under the Privacy Act. Mr. Ormonde contends that other documents should exist and should be produced. The Agency asserts that the documents that Mr. Ormonde refers to cannot be identified or located or have been found not to exist. Mr. Ormonde made submissions that the evidence of the individuals to whom the summonses have been directed is essential to provide an explanation for the Agency’s failure to produce the documents that he seeks.

6 In support of that submission Mr. Ormonde referred to Ms Molloy’s and other officers’ “routine practices of preferring to deal with controversial matters by phone and of taking extensive notes in [his or] her diary pertaining to meetings and discussions”.

7 He also refers to the requirement that the Director General thoroughly investigate allegations of improper conduct or abuse of authority as an implicit basis for concluding that Mr. Gilligan had given directions and sought advice in relation to the investigation of allegations that Mr. Ormonde had made. He also asserts that the other summonsed officers must have also issued directions or sought advice as part of the investigation. Mr. Ormonde seeks attendance of Mr. Gilligan and those other officers to provide an explanation for the Agency’s failure to produce those directions and advice documents.

8 Mr. Prince submitted that the summonsed witnesses would be unable to give relevant evidence. Lack of apparent relevance would be a sufficient ground in itself to set aside a summons.

9 The matter was not finalized on 20 November 2003 as the Agency required time to consider a schedule of “documents, records and other information which have not been produced” that Mr. Ormonde had filed but which had not been served on the Agency.

10 The Tribunal’s power to set aside a summons was considered by the Appeal Panel in Morgan -v- Director General, Department of Education and Training & anor [2000] NSWADTAP 3. At paragraph 61 of its reasons the Appeal panel stated:

“61 A summons can be set aside on several grounds including:

· where it is not issued for the purpose of obtaining relevant evidence and the witness is unable to give relevant evidence (Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 or

· where to require the attendance of a witness would be oppressive (National Employers’ Mutual General Assoc Ltd v Waind and Hill[1978] 1 NSWLR 377 - in general, the test as to whether a summons is oppressive is whether production of the documents (or calling of oral evidence) is necessary for disposing fairly of the proceedings.(Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545.)”

11 Mr. Prince’s submission is based in the first of the grounds referred to by the Appeal Panel. He said that he is instructed that there are not any documents to produce. He argued that Mr. Ormonde’s schedule does not relate to any specific documents. It relates to categories of discovery types of claims, and the reference to existence is argumentative and deals with assertions, and inferences drawn from assertions, about the way in which particular officers undertook their duties. Mr. Ormonde has not provided any evidentiary basis for those assertions.

12 Mr. Prince’s submitted that if Mr. Ormonde has some basis for making the assertions, he could have put on evidence to that effect, but he has not. This is a fishing expedition, which is an attempt to shore up his case. He argued that there is no basis for it. There is not a scintilla of evidence that has been put forward to show that these people could be relevant. Mr. Ormonde has not provided any evidence that the alleged “routine practices” of the summonsed witnesses are in fact their normal practices. Mr. Ormonde is unable to point to documents that have been produced that would allow the Tribunal to draw the inference of “routine practices”, that documents were created as a result of those “routine practices” and that the Agency has not produced those documents.

13 Mr. Prince conceded that if Mr. Ormonde had provided a basis on which the Tribunal could infer the existence of documents that had not been produced and if the Agency didn’t call witnesses to explain the absence of the documents, then the inference would arise that there is no adequate explanation and then the Tribunal can make whatever findings it wanted to make.

14 Mr. Prince further submitted that if the summonsed witnesses are compelled to give evidence Mr. Ormonde would not be entitled to cross-examine them because he would be the party calling these witnesses. He argued that cross-examination is not a right. It only occurs if a party has produced a witness and that witness gives evidence that is contrary to the instructions of the opposing party.

Findings and Decision

15 On the material before me I am not satisfied that the summonsed witnesses would be able to give evidence relevant to this matter. I agree with Mr. Prince’s argument in that the issued summonses are an attempt by Mr. Ormonde to ascertain processes that might have taken place within the Agency. Mr. Ormonde can only speculate about what evidence the witnesses may give and to that extent the exercise can be described as "a fishing expedition".

16 It is open to Mr. Ormonde to present evidence that would lead the Tribunal to draw the inference of “routine practices”, that documents were created as a result of those “routine practices” and that the Agency has not produced those documents. In my view, compelling the witnesses to give evidence is not necessary for disposing fairly of the proceedings.

17 Having formed that view, the appropriate order is that the summonses be set aside.

Order

18 Each of the summonses issued to Ms Sylvia Lowe, Mr. Chris Perkins, Ms Kate Molloy and Mr. Brian Gilligan is set aside.