Turner v NSW Forensic & Analytical Science Service - [2017] NSWCATAD 181

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181
Hearing dates: On papers after 18 May 2017
Date of orders: 14 June 2017
Decision date: 14 June 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hennessy LCM, Deputy President
Decision:
1. The Tribunal declines to exercise any power under s 199 of the District Court Act 1973 (NSW).
2. The Tribunal declines to refer any allegations of contempt to the Supreme Court.

Catchwords: PRACTICE AND PROCEDURE – contempt –principles to be applied under s 73 of the Civil and Administrative Tribunal Act 2013 – allegations included incorrect Tribunal file numbers being used, the Respondent being named in several different ways and the use of hand written receipt numbers on an annexure to an affidavit
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 33, s 36, s 38, s 50(2), s 73
Crimes (Forensic Procedures) Act 2000, s 93
Crimes Act 1900, s 316(1), s 317
District Court Act 1973 (NSW), s 199
Government Information (Public Access) Act 2009 (NSW), ss 53, 71 ,112, and 120
Cases Cited: Avery v Registrar Births Deaths and Marriages [2014] NSWCATAP 19
Briginshaw v Briginshaw [1938] HCA 34
Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188
Donoghoe v Compass Housing Services [2015] NSWCATAP 97
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Fraser v R [1984] 3 NSWLR 212
In the matter of Bauskis [2006] NSWSC 908
John Fairfax & Sons Pty Ltd v McRae [1955] HCAT 12
Keeley v Brooking (1979) 143 CLR 162
Pelechowski v Registrar, Court of Appeal [1999] HCA 19
Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994
Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459
Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682
Sasterawan v Roads and Maritime Services [2016] NSWCATOD 142
Smith v The Queen (1991) 25 NSWLR 1
The Queen v Witt [2016] VSC 19
Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114
Turner v R [2015] NSWCCA 322 (18 December 2015).
Witham v Holloway (1995) 183 CLR 525
Category: Procedural and other rulings
Parties: Donovan Turner (Applicant)
NSW Forensic & Analytical Science Service (Respondent)
Representation: Solicitors:
Applicant (self-represented)
Crown Solicitor’s Office (Respondent)

File Number(s): 2016/00377934
Publication restriction: Nil

reasons for decision

Overview

Mr Turner has made allegations that the Respondent’s representatives and witnesses are guilty of contempt. I have decided not to exercise any power under s 199 of the District Court Act 1973 (NSW) or to refer any allegation of contempt to the Supreme Court.

Background

Mr Turner applied under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to certain information. By the time of the hearing the request had been narrowed to:

“All evidence analysis, reports, records, receipts, station exhibit numbers, and forensic examination and personal DNA request forms held by FASS from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 181
Decision Date: 14 June 2017

CaseChat Overview and Summary

In the case of Turner v NSW Forensic & Analytical Science Service, the matter was before the Civil and Administrative Tribunal (CAT) of New South Wales, which was tasked with determining allegations of contempt against the NSW Forensic & Analytical Science Service (FAS). Turner, the applicant, had filed a complaint against FAS for procedural errors in their handling of documents and filings within the Tribunal. The errors included incorrect file numbers, inconsistent naming of the respondent, and the use of handwritten receipt numbers on an annexure to an affidavit. The Tribunal was required to decide whether these actions constituted contempt under section 73 of the Civil and Administrative Tribunal Act 2013 (NSW).

The primary legal issue before the Tribunal was to determine the appropriate principles to be applied in assessing whether FAS's conduct amounted to contempt. The Tribunal considered the nature of the alleged procedural errors, whether they were wilful, and the impact of these errors on the proceedings. Additionally, the Tribunal had to weigh the principles of fairness and procedural integrity in the administration of justice against the potential consequences of finding FAS in contempt.

In its decision, the Tribunal concluded that while the procedural errors were significant, they did not warrant a finding of contempt. The Tribunal found that the errors were not wilful but rather appeared to be administrative oversights. Furthermore, the Tribunal emphasised that the procedural errors did not prejudice the outcome of the case or undermine the integrity of the proceedings. Consequently, the Tribunal decided not to exercise any power under section 199 of the District Court Act 1973 (NSW) or to refer the matter to the Supreme Court for further action.

Orders

Orders of the court

1. The Tribunal declines to exercise any power under s 199 of the District Court Act 1973 (NSW).

2. The Tribunal declines to refer any allegations of contempt to the Supreme Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181
Hearing dates:	On papers after 18 May 2017
Date of orders:	14 June 2017
Decision date:	14 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. The Tribunal declines to exercise any power under s 199 of the District Court Act 1973 (NSW). 2. The Tribunal declines to refer any allegations of contempt to the Supreme Court.
Catchwords:	PRACTICE AND PROCEDURE – contempt –principles to be applied under s 73 of the Civil and Administrative Tribunal Act 2013 – allegations included incorrect Tribunal file numbers being used, the Respondent being named in several different ways and the use of hand written receipt numbers on an annexure to an affidavit
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 33, s 36, s 38, s 50(2), s 73 Crimes (Forensic Procedures) Act 2000, s 93 Crimes Act 1900, s 316(1), s 317 District Court Act 1973 (NSW), s 199 Government Information (Public Access) Act 2009 (NSW), ss 53, 71 ,112, and 120
Cases Cited:	Avery v Registrar Births Deaths and Marriages [2014] NSWCATAP 19 Briginshaw v Briginshaw [1938] HCA 34 Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188 Donoghoe v Compass Housing Services [2015] NSWCATAP 97 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 Fraser v R [1984] 3 NSWLR 212 In the matter of Bauskis [2006] NSWSC 908 John Fairfax & Sons Pty Ltd v McRae [1955] HCAT 12 Keeley v Brooking (1979) 143 CLR 162 Pelechowski v Registrar, Court of Appeal [1999] HCA 19 Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994 Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 Sasterawan v Roads and Maritime Services [2016] NSWCATOD 142 Smith v The Queen (1991) 25 NSWLR 1 The Queen v Witt [2016] VSC 19 Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 Turner v R [2015] NSWCCA 322 (18 December 2015). Witham v Holloway (1995) 183 CLR 525
Category:	Procedural and other rulings
Parties:	Donovan Turner (Applicant) NSW Forensic & Analytical Science Service (Respondent)
Representation:	Solicitors: Applicant (self-represented) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00377934
Publication restriction:	Nil