Pullen v Joiner

[2015] FCCA 51

FEDERAL CIRCUIT COURT OF AUSTRALIA

PULLEN v JOINER & ANOR [2015] FCCA 51

Catchwords:
CONTEMPT – Failure to comply with court order – whether non-compliance – whether wilful non-compliance – no wilful non-compliance.

PRACTICE AND PROCEDURE – Where orders sought that Information Commissioner or other independent person scrutinise documents and files held by respondents – application dismissed.

Legislation:

Privacy Act 1988, ss.52, 55, 55A, 66

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Witham v Holloway (1995) 183 CLR 525

Applicant: KEVIN MICHAEL PULLEN

First Respondent: MATTHEW JOINER IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN (BANKRUPT)

Second Respondent: GERALD COLLINS IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN (BANKRUPT)

File Number: BRG 1139 of 2012

Judgment of: Judge Jarrett

Hearing date: 11 November 2013

Date of Last Submission: 11 November 2013

Delivered at: Brisbane

Delivered on: 23 January 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr Muller

Solicitors for the Respondents: Rodgers Barnes and Green

ORDERS

1. The application filed on 9 September, 2013 is dismissed.

2. The applicant pay the respondents costs of and incidental to this application to be taxed and paid in accordance with the Federal Circuit Court (Bankruptcy) Rules2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1139 of 2012

KEVIN MICHAEL PULLEN

Applicant

And

MATTHEW JOINER IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN (BANKRUPT)

First Respondent

GERALD COLLINS IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN (BANKRUPT)

Second Respondent

REASONS FOR JUDGMENT

1. On the application of Mr Pullen, on 27 February, 2013 I ordered that:

   1.  The First and Second Respondents deliver any document in their possession containing personal information about the Applicant to the Applicant within 28 days.

   2.  For any category of documents on the Respondents’ file in relation to the administration of the Applicant’s bankruptcy that the Respondents do not provide to the Applicant, the Respondents are to identify that category of documents and state the basis why those documents are either:

   (a)     Not personal information; or

   (b)     Otherwise not required to be provided to the Applicant.

   3.  The Respondents pay the Applicants costs of and incidental to the Application fixed in the sum of $100.00.

2. On 27 March, 2013 the respondents provided to Mr Pullen a large volume of documents which they contend met the description in order 1 of 27 February, 2013.  They specified a number of categories of documents for the purposes of order 2.

3. By this application, Mr Pullen seeks orders:

   1 . THAT the First and Second Respondents jointly or severally be held in contempt of court.

   2. THAT the First and Second Respondents jointly or severally be penalised for the contempt of court.

   3. THAT the First and Second Respondents jointly or severally comply fully with the Order dated 27 February 2013 made by FEDERAL MAGISTRATE JARRETT of the FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

   4. THAT the First and Second Respondents jointly or severally better particularise those documents that are allegedly either (a) not personal information or (b) otherwise not required to be provided to the Applicant by reference to at least the identity of the initiating correspondent, the identity of the receiving party and the nature of the subject matter to which the correspondence relates.

   5. THAT this Court refers any documents not provided by the First and Second Respondents to the Applicant because those documents are allegedly either (a) not personal information or (b) otherwise not required to be provided to the Applicant, to the Office of the Information Commissioner for an independent determination that those documents are correctly exempted under the Privacy Act 1988.

   6. THAT the First and Second Respondents jointly or severally pay the costs of the Applicant of this Application.

   7. Such further or other order(s) as to the Court may seem fair and just.

4. The application was dealt with on the papers with the assistance of written and oral submissions from each of the parties.  None of the parties sought to cross-examine the deponents of any of the affidavits relied upon by any other party.

Background

1. The applicant is an undischarged bankrupt.  The first and second respondents are the trustees of the applicant’s estate in bankruptcy.

2. The respondents contend that under cover of a letter from their solicitors on 27 March, 2013 they sent to the applicant 6,330 pages of documents in compliance with order 1 of the orders of 27 February, 2013.  They assert that those documents were all of the documents on the respondents’ file that contained personal information about the applicant except those which the respondents were otherwise not required to provide to the applicant by law.  The letter also spelt out a number of categories of documents that the respondents considered were exempt from production pursuant to the order.  There are 18 separate categories of such documents.  The respondents claim that the documents in each of the categories are exempt from production for one or more of six reasons spelt out in the letter.

3. The process by which the documents were collated and categorised for the purposes of production to Mr Pullen is described in the affidavit of James Stewart Wilson filed on 8 November, 2013.  Mr Wilson is an accountant.  He works under the supervision of the first and second respondents and has the carriage of the applicant’s personal insolvency administration on behalf the respondents.  Relevantly, Mr Wilson deposes:

   3. On 27 February 2013 Jarrett FM ordered the Respondents to provide the Applicant all of the documents on their file relating to the administration of the Applicant’s bankrupt estate (which are the only documents held by the Respondents which contain personal information about the Applicant) within 28 days (ie. by 27 March 2013) except for documents that do not contain personal information about the Applicant or are otherwise not required to be provided to the Applicant. …

   4. Once that order was made, Mr Joiner directed me to review the entire file relating to the administration of the Applicant’s bankrupt estate (Respondents’ file) and arrange a copy of the documents not exempt from production under the order made by Jarrett FM on 27 February 2013 to be delivered to the Applicant.

   5. As a result, I personally reviewed the entire Respondents’ file. I tagged with a post it note each document I considered did not contain personal information about the Applicant or was not otherwise required to be provided to the Applicant. Once I completed this process, I had a conference with the Respondents’ solicitor, Steven Muller of Rodgers Barnes & Green, in which Mr Muller reviewed each document on the Respondents’ file that I had tagged. During that conference Mr Muller gave me certain advice, the contents of which I do not propose to waive legal professional privilege over, which caused me to remove some of the tags I had placed on documents.

   6. I then gave the Respondents’ file to the team’s personal assistant and instructed her to copy all of the documents on the Respondents’ file that were not tagged. She then copied all of those documents.

   7. Based upon Mr Muller’s review of the documents on 19 March 2013, Rodgers Barnes & Green prepared a letter dated 27 March 2013 addressed to the Applicant setting out the categories of documents that had not been delivered to the Applicant in accordance with the order made on 27 February 2013 by Jarrett FM. …

   8. … Due to the volume of documents that were copied and provided to the Applicant, I did not keep an itemised list of each document delivered to the Applicant. …

   9. I also had the team’s personal assistant copy separately all of the documents in the Respondents’ file that I had tagged (those documents do not include all of the correspondence passing between Rodgers Barnes & Green and the Respondents, as that correspondence was sent electronically and are stored electronically on my firm’s computer database. Legal professional privilege is claimed over all of that correspondence). These documents were kept separate. I have placed these documents into an envelope which I sealed and signed across the seal, and have given to the Respondents’ solicitor with instructions that if necessary it be handed up in Court on the next hearing date.

4. Mr Wilson was not challenged on his evidence in cross examination.

5. By letter dated 11 April, 2013 Mr Pullen responded to the respondent’s solicitors.  In respect of the categories of documents claimed to be exempt from production by the respondents, Mr Pullen said:

   I note the exemptions that you have identified in the letter but draw your attention to at least the following inconsistencies therein:

   item 4 notwithstanding the apparent exemption, documents provided to date include copies of invoices, receipts.  Therefore, it is not clear as to the nature of the documents which have been excluded.

   Item 5again, notwithstanding the apparent exemption, documents provided to date include those identifying the remuneration paid to your clients.  Therefore, it is not clear as to the nature of the documents which have been excluded.

   Item 6 yet again, notwithstanding the apparent exemption, copies of file notes, internal memos and in-house annotations have been provided.  Therefore, yet again, it is not clear as to the nature of the documents which have been excluded.

   To advance this matter, I suggest that further elaboration be provided on each and every document that has in fact been excluded and the legislative basis for the exclusion.

   I remain concerned that your clients may be continuing to withhold privacy information to which I am entitled.

6. On 21 May, 2013 the solicitors for the respondents wrote to Mr Pullen in response to his letter set out above.  Relevantly, they said:

   You have expressed concern that our clients may be withholding documents from you that you are entitled to under the order made by Federal Magistrate Jarrett on 27 February 2013.  No basis has been provided for your assertion except that you say some documents provided to you fall within 3 of the categories of documents identified as being documents our clients are not obliged to produce.

   Insofar as the documents provided to you under the cover of our letter of 27 March 2013 fall within the categories we identified as documents that our clients were not obliged to provide to you that does not waive our clients’ entitlement to refrain from providing to you the balance of the documents falling within those categories.

   Our clients have complied with the requirements of the order made by Federal Magistrate Jarrett on 27 February 2013.  That order only required our client to identify each category of documents you were not provided with not to list each of the documents falling within those categories.

7. Mr Pullen responded by letter on 23 May, 2013.  Relevantly, he said:

   I remain sceptical that your clients have undertaken a full and proper review of their files.  For example:

   A clipped bundle of documents headed “subpoenaed documents 19/3/2010 Matt I took to court” has been provided.

   That bundle included a copy of any internal file note dated 16/9/2009 prepared by JW which appears to relate to a telephone conversation held with “Peter – Assure Credit Management”.  That file note was NOT available at the Court for viewing by the undersigned in response to the subpoena.

   On the other hand, the subpoenaed documents viewed by the undersigned at the court INCLUDED a copy of a memo dated 16 September 2009 from a Peter Tran to James Wilson.  However, that copy was NOT included in the aforementioned bundle nor elsewhere in the documents supplied.

   Any other anomalies located will be advised in due course.

   … Your clients resisted similar access to the documents and it appears as if they may not yet have fully met their obligations under the Court order. 

8. On 10 July, 2013 Mr Pullen again wrote to the respondent’s solicitors.  He pointed out that a number of letters written by him to the respondents had not been included in the documents provided to him on 27 March, 2013.  Relevantly, in the letter he said:

   Further to my letter of May 23 last, I advise that copies of at least the following documents have NOT been supplied by your clients as clearly required under the Court order:

   correspondence from the undersigned to your clients dated:

   4 May 2009
   30 Jun 2009
   10 Dec 2009
   22 Jan 2010
   1 Feb 2010
   13 Mar 2010
   4, 18 & 26 Oct 2010
   8 & 22 Nov 2010
   1, 9, 13, 14 (2 letters) & 19 Dec2011
   4 & 12 Feb 2011

   12 Apr 2011

   There is also a letter dated 29 January 2009 from Jillian Pullen to your clients which clearly identified the undersigned but a copy has not been supplied.

   I again suggest that it would be prudent for your clients to undertake a further comprehensive review of their files and forward copies of any missing documents and to provide a more detailed list of documents which have been excluded to reduce any concerned that documents may have been withheld unlawfully but also to avoid further recourse to the Court to determine whether your clients have fully met their obligations under the Court order.

9. No further correspondence relevant to these issues has passed between the parties.

The Complaints

1. Mr Pullen is sceptical about the extent to which the respondents have complied with the order of 27 February, 2013.  He infers from the anomalies that he has identified in his correspondence set out above that the respondents have been less than diligent in discharging their obligations under the order.

2. To the extent that his concerns rest upon the production by the respondents of documents which fall into categories in respect of which they have otherwise sought to resist production (that is to say the documents referred to in his letter of 11 April, 2013) his concern is misplaced.  The inadvertent production of two or three documents, in the course of the production of more than 6,300 documents does not lead to the conclusion that the respondents have not conscientiously undertaken compliance with the orders of 27 February, 2013.

3. Mr Pullen’s concerns also rest upon the proposition that he was not provided with certain documents which he already had in his possession and which he says should have been provided to him again along with the documents produced by the respondents on 27 March, 2013 (and in particular the documents referred to in his letters of 23 May and 10 July, 2013).

4. Save for three letters (those of 4 May 2009, 30 June, 2009 and 1 February, 2010), Mr Wilson’s evidence is that each of the documents about which Mr Pullen complains were in fact provided to him.  Mr Wilson’s evidence, however, is based upon inference.  He gives no direct evidence that the relevant documents were given to Mr Pullen.  I have set out above Mr Wilson’s evidence about the way in which the respondents went about identifying the documents to be produced to Mr Pullen.  Mr Wilson deposes that no list was kept of the documents that were provided to Mr Pullen.  That is unfortunate.  Had there been a list, there would be a record of each of the documents sent to Mr Pullen pursuant to the order.  As it is, the Court is asked to infer that the documents about which Mr Pullen complains were in fact in the bundle of documents sent to him on 27 March, 2013.  Mr Pullen has prepared an index to the documents he received on that date and the documents about which he now complains do not appear in his index.

5. Mr Wilson’s evidence, from which I am asked to infer that the relevant documents were in fact delivered to Mr Pullen, is not particularly satisfactory.  Given that the task of copying the relevant documents, once identified by Mr Wilson and confirmed by the respondent’s solicitor, was delegated to another person and that other person has not given evidence in these proceedings, I am unwilling to draw the inference that the documents about which Mr Pullen now complains were delivered to him under cover of the correspondence of 27 March, 2013.  That is especially so in the absence of an index or a list to the documents that were delivered.

6. It is likely that there were a number of documents that were not delivered to Mr Pullen in accordance with the order.  Given the process by which the documents were identified and copied for provision to Mr Pullen as described by Mr Wilson, as well as the volume of documents concerned however, I am not satisfied that the respondent’s failure to provide those documents to Mr Pullen was intentional or deliberate.  It was plainly inadvertent.

7. As to the letters of 4 May 2009, 30 June, 2009 and 1 February, 2010 Mr Pullen tendered three facsimile transmission reports (exhibit 3) which he says confirm that the three letters were sent to the respondents by facsimile and that they were received by them.  Mr Wilson’s evidence is that those letters are not on the respondents’ file and Mr Wilson has no recollection of ever seeing them. 

8. There is no reason to doubt either witnesses’ evidence.  It is entirely plausible that the documents were sent by facsimile by Mr Pullen to the respondents’ offices but that they were never placed with the respondents’ file or since their receipt, they have been lost.  Whilst there is no evidence that the documents were not placed with the file or that since receipt they have been lost (apart from Mr Wilson’s evidence that they are not on the file), there is no other likely explanation.  To the extent that Mr Pullen might suggest that the respondents have deliberately withheld the letters from him, that explanation is unlikely.  They are documents that Mr Pullen sent to the respondents.   It is difficult to identify any advantage to the respondents from deliberately withholding those documents from Mr Pullen.  He does not identify any such advantage.

9. Rather, it seems that Mr Pullen suggests that the failure to produce those letters demonstrates inattention to detail – inattention to the task required of the respondents by the orders of 27 February, 2013.  Whilst that might be so, it is equally plausible that the letters were sent by Mr Pullen (now many years ago) and have been misplaced or lost by the respondents or those under their supervision.

10. Mr Pullen challenges the respondents’ entitlement to refuse to produce documents within one of the categories that they have set out in their solicitor’s letter of 27 March, 2013.  In particular in paragraph 15 (q) of Mr Wilson’s affidavit he contends that documents which are described as “general file administration documents” are said to be exempt from production.  Specific reference is made to a “checklist” and a “to do list”.  It is said that those documents do not contain personal information about the applicant.  Mr Wilson was not cross-examined about these matters.  By their description they are administrative documents to aid the conduct of the administration.  There is nothing that tends to suggest that the documents do contain personal information relating to Mr Pullen.  There is no reason to think that this claim by the respondents indicates a wilful or deliberate non-compliance with the order of 27 February, 2013.

11. Mr Pullen was also concerned that paragraph 17 of Mr Wilson’s affidavit contained evidence that the respondents had failed to provide copies of two documents to him pursuant to the order of 27 February, 2013.  The two documents were letters sent to AMP Superannuation Ltd and Sunsuper Ltd.  Mr Wilson annexes copies of those letters to his affidavit.  The annexed copies demonstrate that the letters are each of two pages in length.  Both are unsigned and bear the date 4 July, 2007 on each page of each letter.

12. Before me Mr Pullen tended copies of two letters, one dated 6 July 2007 to AMP Superannuation Ltd and the other dated 6 July, 2007 to Sunsuper Ltd (exhibits 2 and 1 respectively).  Mr Pullen says that those letters were supplied to him by the respondents in response to the 27 February, 2013 order.  Both of the documents appear to be signed by the respondent Mr Joiner.  Mr Pullen points out that on the copies of the letters provided to him the opening page of each is dated 6 July, 2007 but page 2 of each is dated 4 July, 2007.

1. It is difficult to understand what Mr Pullen says flows from the discrepancies in the letters annexed to Mr Wilson’s affidavit and those provided to Mr Pullen on 27 March, 2013.  However, in both his written and oral submissions he summarised his view by saying “that Mr Wilson’s comments on these letters merely reflects the inadequate record keeping by the respondents”.  I agree, but I do not think that it is indicative of anything else.

2. By the order of 27 February, 2013 I ordered that the respondents pay Mr Pullen’s costs of that application fixed in the sum of $100.  No time limit was imposed for the payment of those costs.  The respondents have not paid Mr Pullen the costs so awarded.  Instead, they have set-off the amount ordered to be paid by them against costs orders made on 20 September, 2013 and 26 July, 2012.

Contempt

1. There is now little distinction between civil and criminal contempt: Witham v Holloway (1995) 183 CLR 525. Whatever the nature of the contempt alleged, it must be proven beyond reasonable doubt by the party bringing the charge of contempt: Witham v Holloway at 534. The breach of a court order or undertaking will not constitute contempt unless it is wilful and not casual, accidental or unintentional: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113.

2. Whilst it may be the case that the respondents’ evidence about the documents that they provided on 27 March, 2013 is less than satisfactory I am not satisfied, either on the balance of probabilities or beyond reasonable doubt, that any non-compliance with that order was deliberate or wilful.  As I have set out above, if there was any non-compliance with that order by the respondents, it was likely to have been inadvertent or as a result of, as Mr Pullen puts it, the respondents’ poor record keeping.

3. I accept the respondent’s submission that Mr Pullen does not prove beyond reasonable doubt that the respondents have wilfully disobeyed the order of 27 February, 2013.  The respondents have provided a response and explanation to each of Mr Pullen’s concerns raised in his correspondence.

4. The application is, as far as it seeks the imposition of orders on the respondents for contempt, dismissed.

Further Particularisation

1. Mr Pullen seeks that the respondents further particularise by way of lists, the documents they have delivered to him and the documents in respect of which they say they have a valid claim of exemption.

2. Mr Pullen’s request for those lists goes beyond the order made on 27 February, 2013.  That order did not provide for the provision of lists although as I have indicated above, that there was no index or list of the documents provided to Mr Pullen is unfortunate.  However, in my view, no purpose is to be served now by ordering the provision of a list of the documents provided by the respondents to the applicant. 

3. So too, the further particularisation of the documents in respect of which exemption is claimed is, in my view, unnecessary.  The categories of documents in respect of which the respondents have claimed exemption are set out in the relevant correspondence.  In my view, that is sufficient to meet the requirements of the order made on 27 February, 2013.

Review of the Documents

1. Apart from the matter of contempt, Mr Pullen’s other main focus in these proceedings appears to be a desire for there to be an order that “the respondents’ files in connection with the Bankrupt Estate be reviewed by an independent party competent in the administration of the Privacy Act 1988. I suggest that the Information Commissioner is the appropriate party.”

2. Mr Pullen points to ss.52, 55, 55A and 66 of the Privacy Act1988 as a source of this Court’s power to make the order he seeks. However, ss. 55, 55A and 66 are not a source of power for this Court to make an order against the Information Commissioner to undertake the task that Mr Pullen wishes to be undertaken in this case.

3. Section 52 of the Privacy Act sets out the powers that the information Commissioner has when making determinations to finalise complaints made under the Privacy Act. Section 52 is in the following terms:

   52Determination of the Commissioner

   (1)  After investigating a complaint, the Commissioner may:

   (a)  make a determination dismissing the complaint; or

   (b) find the complaint substantiated and make a determination that includes one or more of the following:

   (i)  a declaration:

   (A)  where the principal executive of an agency is the respondent—that the agency has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct; or

   (B)  in any other case—that the respondent has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct;

   (ii)  a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

   (iii)  a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint;

   (iv)  a declaration that it would be inappropriate for any further action to be taken in the matter.

   (1A)  The loss or damage referred to in paragraph (1)(b) includes injury to the complainant’s feelings or humiliation suffered by the complainant.

   (1B)  A determination of the Commissioner under subsection (1) is not binding or conclusive between any of the parties to the determination.

   (2)  The Commissioner shall, in a determination, state any findings of fact upon which the determination is based.

   (3)  In a determination under paragraph (1)(a) or (b) (other than a determination made on a representative complaint), the Commissioner may include a declaration that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the investigation of the complaint.

   (3A)  The Commissioner may include an order mentioned in subsection (3B) in a determination under subparagraph (1)(b)(i) 

   
   

   or (ii) that concerns a breach of:

   (a)  Information Privacy Principle 7; or

   (b)  National Privacy Principle 6, to the extent that it deals with the correction of personal information; or

   (c)  a provision of an approved privacy code that corresponds to National Privacy Principle 6, to the extent that it deals with the correction of personal information; or

   (d)  section 18J.

   (3B)  A determination may include an order that:

   (a)  an agency or respondent make an appropriate correction, deletion or addition to a record, or to a credit information file or credit report, as the case may be; or

   (b)  an agency or respondent attach to a record, or include in a credit information file or credit report, as the case may be, a statement provided by the complainant of a correction, deletion or addition sought by the complainant.

   (4)  A determination by the Commissioner under subparagraph (1)(b)(iii) on a representative complaint:

   (a)  may provide for payment of specified amounts or of amounts worked out in a manner specified by the Commissioner; and

   (b)  if the Commissioner provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.

   (5)  If the Commissioner makes a determination under subparagraph (1)(b)(iii) on a representative complaint, the Commissioner may give such directions (if any) as he or she thinks just in relation to:

   (a)  the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and

   (b)  the manner for determining any dispute regarding the entitlement of a class member to the payment.

   (6)  In this section:

   complainant, in relation to a representative complaint, means the class members.

4. It will be observed from the terms of s.52 that the powers given to the Information Commissioner by that section are not powers which are given to this Court or which, in the context of the current proceedings at least, this Court can insist upon the Information Commissioner exercising. Moreover, given the terms of s.52 of the Act, it is unlikely that orders in the nature of those sought by Mr Pullen in this case fall within the powers described in the section.

5. The evidence reveals that Mr Pullen has in fact made a complaint to the Information Commissioner about the respondent’s conduct arising from their compliance with the orders of 27 February, 2013.  The Information Commissioner, however, has declined to consider Mr Pullen’s complaint any further given that the matter is before the Court. 

6. Although Mr Pullen did not articulate his claims in this way, it might be possible to construe his application as one in which he seeks orders against the Information Commissioner to perform the obligations cast upon the Information Commissioner by the Privacy Act. If that is a correct characterisation of Mr Pullen’s application, it is an application which must fail because the Information Commissioner has not been joined as a party to the proceedings.

Conclusion

1. Mr Pullen’s application that the respondents be dealt with for contempt must fail.  So too must his other claims for relief.

2. The application is without merit and should be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Deputy Associate: 

Date:  23 January 2015