Webb v Secretary, Department of Communities and Justice

[2025] NSWCATEN 2

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v Secretary, Department of Communities and Justice [2025] NSWCATEN 2

Hearing dates:

On the papers

Date of orders:

2 May 2025

Decision date:

02 May 2025

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ

Decision:

(1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispense with a hearing of the contempt application filed on 31 January 2025.

(2) The contempt application filed on 31 January 2025 is dismissed.   

Catchwords:

ENFORCEMENT- whether conduct of solicitor capable of constituting contempt in the face or hearing of Tribunal- whether contempt application should be heard by Tribunal or referred to Supreme Court if applicants adduce evidence capable of establishing contempt

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW)

Cases Cited:

Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16

Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [HCA] 1

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25

Fraser v R (1984) 3 NSWLR 212

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Hebashy v SGS Australia Pty Ltd [2024] FCA 28

John Fairfax & Sons Pty Limited v McRae (1955) 93 CLR 351; [1955] HCA 12

Law Society of New South Wales v DXW [2019] NSWCATOD 101

Registrar, Court of Appeal v Collins (1982) 1 NSWLR 682

Rondel v Worsley [1969] 1 AC 191

The Queen v Witt [2006] VSC 19

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

Webb v Port Stephens Council [2020] NSWCATAP 152

Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57

Witham v Holloway (1995) 163 CLR 525; [1995] HCA 3

Category:

Principal judgment

Parties:

Telina Webb (First Applicant)
Paul McEwan (Second Applicant)
DraftCom Pty Limited (Third Applicant)

Secretary, Department of Communities and Justice
(First Respondent)
Port Stephens Council (Second Respondent)
Goulburn Mulwaree Council (Third Respondent)

Representation:

Applicant:
T Webb (Self Represented)

Solicitors:
S Chew (Department of Communities and Justice)(First Respondent)

File Number(s):

2025/00042868

Publication restriction:

NIL

REASONS FOR DECISION

Introduction

1. By application filed 31 January 2025 Telina Webb, Paul McEwan and Draftcom Pty Limited (Applicants) sought an order for “penalty for contempt in the face of the Tribunal, NCAT Act 2013 s 73” against the Secretary, Department of Communities and Justice (Respondent) (contempt application).

2. The grounds for the application were articulated as:

“The Applicants’ solicitor Justin Cahill breached s 73, by deliberately misrepresenting the application for s 110 orders was qualified and that the Tribunal has jurisdiction to consider and grant the orders as sought.”

3. The application proceeded “Please refer to the attached submissions of 31^st January 2025”. The Tribunal has considered those submissions.

4. On 19 February 2025 the Respondent filed an application seeking the dismissal of the Applicants’ contempt application, and an order dispensing with a hearing of the application. The grounds for the Respondent’s application were articulated as:

“The Department is seeking dismissal of the contempt application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the basis that it is vexatious and lacking in substance.”

5. In support of its application, the Respondent filed written submissions on 19 February 2025. The Tribunal has considered those submissions.

6. Directions were made without opposition that, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Tribunal dispense with a hearing of the contempt application. The Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions provided by them and other material referred to in such submissions, and that the parties have been afforded the opportunity to oppose the making of such an order.

7. Sensibly without objection by the Applicants, the Tribunal directed that the Applicants file submissions in response to the submissions of the Respondent of 19 February 2025, and that the Respondent have the opportunity to file brief submissions in reply to the Applicant’s submissions. Although the relief sought by the Respondent was in substance for summary dismissal, the Tribunal has considered the submissions of the parties, and determined the contempt application on its merits in the same way as it would have had the Tribunal’s usual procedure in contempt applications with respect to the sequence of filing submissions been adopted. Having regard to the contents of the Applicants’ submissions, and the nature of the contempt application, the Tribunal is satisfied that the reversal of the usual sequence of submissions has not disadvantaged the Applicants, who are litigants in person, or otherwise been procedurally unfair.

8. It is reasonably clear that the Applicants sought that the Secretary of the Respondent Department be dealt with for contempt or be referred to the Supreme Court to be dealt with for contempt in reliance upon the conduct of its solicitor. The grounds for the application were pleaded as “The Applicants’ solicitor breached s 73, by deliberately misrepresenting the application for s 110 orders was qualified and that the Tribunal has jurisdiction to consider and grant the orders as sought”. The Respondent does not suggest that the Applicants’ basis for their contempt application is misconceived. Whether the Respondent’s solicitor could, or should have been named as a respondent to the contempt application need not be explored in this case.

9. The Applicants, correctly identified s 73 of the CAT Act as the source of jurisdiction and power to grant the relief sought by them. Section 73 provides that the Tribunal has the same powers as the District Court pursuant to s 199 of the District Court Act 1973 (NSW) with respect to contempts committed “in the face” or “hearing” of the Tribunal. The Tribunal being constituted by a current judicial officer, the relief sought by the Applicants falls within jurisdiction. If the Applicants discharge the onus of proof which they bear, the Tribunal would be empowered to deal with the Respondent in accordance with s 199(7) or (8) of the District Court Act.

10. Section 73(5) empowers the Tribunal to refer the contempt application to the Supreme Court if it is satisfied that the Applicants have adduced admissible evidence capable of proving the alleged contempt in accordance with the criminal standard of proof, which is beyond reasonable doubt (Holloway v Witham (1995) 183 CLR 525; [1995] HCA 3). The Applicants’ submissions suggest that the relief they seek is pursuant to s 73(5) of the CAT Act. For the reasons which follow, the contempt application meets the same fate whether considered by reference to s 73(1) or s 73(5).

Respondent’s submissions

11. The Respondent’s submissions of 14 February 2025 accurately set out relevant matters of background to the proceedings, including reference to the proceedings before the Tribunal which the Respondent and others initiated on 4 October 2024 in reliance on ss 110(1) and 110(3) of the Government Information (Public Access) Act 2009 (GIPA Act) (restraint order application).

12. Section 110(1) of the GIPA Act provides that a person who has made at least 3 access applications, to 1 or more agencies in the previous 2 years that lack merit are not permitted to make an access application without leave (restraint order). Section 110(3) of the GIPA Act provides that restraint orders may be made to apply to all access applications made by the person the subject of the order, or may be limited by reference to particular kinds of information or particular agencies.

13. In the proceedings initiated on 4 October 2024, the Respondent and two other agencies sought to restrain the present Applicants from making an access application to “any NSW public sector agency whether solely, on their behalf, or acting jointly, or in concert with any other person or entity without first obtaining the Tribunal’s approval”.

14. On 8 October 2024 the present Applicants sought dismissal of the restraint order application (dismissal application). The Applicants asserted that s 110 of the GIPA Act made no provision for joint respondents, and that the section made no provision for a business of any kind being a respondent to a restraint order application. The crux of the claim was that the Tribunal lacked the jurisdiction to grant relief sought against the present Applicants.

15. On 5 November 2024 the Tribunal rejected the dismissal application. On 14 January 2025 the Tribunal provided a written Statement of Reasons for the decision of 5 November 2024. The Tribunal recorded the contentions of the Applicants that it did not have jurisdiction to deal with the restraint order application, that an application under s 110 of the GIPA Act seeking restraining orders from the Tribunal could only be made against a “single person” or “single individual” as opposed to “three named individuals” or against a corporation, that an application under s 110 of the GIPA Act cannot be made on behalf of more than one party, and that an order under s 110 of the GIPA Act could not be made against the second and third of the present Applicants on the basis that they were acting in concert for the purposes of s 110(1)(b) of the GIPA Act. The Tribunal’s decision of 5 November 2024 has not been appealed against.

16. The Respondent submitted that the contempt application was vexatious and lacking substance on the basis that:

1. the conduct forming the basis of the referral application does not constitute contempt of the Tribunal; and

2. that the Applicants have failed to discharge the onus they bear of establishing that the alleged conduct is capable of amounting to contempt of the Tribunal.

17. After referring ([17]-[19]) to the provisions of s 73 of the CAT Act, the Respondent referred to “the NCAT’s power to dismiss proceedings”, and referred to the authorities with respect to the interpretation of s 55(1)(b) of the CAT Act, which empowers the Tribunal to dismiss proceedings on a number of grounds. At least in the context of these proceedings, the Tribunal perceives that any distinction between the expression in s 55(1)(b) “lacking in substance” and “lacking in merit” is a distinction without a difference.

18. The Respondent addressed the substance of each of the submissions of the Applicants of 31 January 2025. The Applicants variously submitted that, through the solicitor, the Respondent attempted to pervert the course of justice, that the submissions made by the Respondent’s solicitor were made notwithstanding that the Respondent, and the solicitor, were aware at all times that they were not able to make out their case pursuant to s 110(1) of the GIPA Act, that the Respondent’s solicitor knowingly made misleading submissions to the Tribunal for the purpose of perverting the course of justice, and that the “particular dialogue” adopted by the Respondent’s solicitor evidenced “the criminal conduct” perpetrated by “directly and personally” making “false representations” to the Tribunal. Each of those claims was submitted to be without an evidentiary foundation.

19. The Respondent did not dispute the accuracy of the passages of the transcript of the hearing on 5 November 2024 relied upon by the Applicants. The Respondent provided (Annexure B) a full copy of the transcript of the proceedings.

20. The Respondent summarised, accurately in the Tribunal’s view, the principles governing applications for contempt in the face of the Tribunal. They relevantly confirm that there is no restriction on the identity of persons who may be the subject of an allegation of contempt, a contemnor potentially being a party to the proceedings, a witness, a legal representative or any other person (The Queen v Witt [2016] VSC 19).

21. The Applicants assert that the Respondent’s solicitor was in contempt in the face of the Tribunal, and that the Respondent is vicariously guilty of contempt in the face of the Tribunal on that basis. The solicitor’s submissions are presumed to have been made on the Respondent’s instructions. Arguably, the contempt application could have been made against he solicitor. Neither party’s submissions engaged with this issue. For the reasons which follow, the Tribunal does not need to. The outcome would not differ if the solicitor was the respondent, or a respondent to the contempt application.

22. As the Respondent submitted, contempt in the face of hearing of the Tribunal has been interpreted to mean conduct seen or heard by the decision maker (Fraser v R (1984) 3 NSWLR 212). The Tribunal accepts that the conduct relied upon by the Applicants would have been heard by the decision maker on 5 November 2024. It is unnecessary in those circumstances to have regard to the asserted “wider view that contempt in the face or hearing of the court extends to conduct, without geographic boundaries” (see discussion in Registrar, Court of Appeal v Collins (1982) 1 NSWLR 682). As the Applicants’ complaint relates to what the Respondent’s solicitor said to the Tribunal on 5 November 2024, rather than how he said it, or his demeanour when doing so, conduct “seen” by the Tribunal could not advance the contempt application.

23. The Respondent referred to the decision of the Tribunal in Turner v NSW Forensic and Analytical Science Service [2017] NSWCATAD 181 in which, by reference to the decision in John Fairfax & Sons Pty Limited v McRae (1955) 93 CLR 351; [1955] HCA 12, the Tribunal accepted that a penalty would not be imposed in the exercise of the contempt power “unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference”. As was accepted by the Tribunal in Turner, the jurisdiction of NCAT to punish for contempt in the face or hearing of the Tribunal is exceptional, should be exercised with restraint, and only in a clear and serious case in which it is necessary to act immediately. In the circumstances of this application, in the absence of necessity to act immediately if the Applicants discharge the onus they bear, referral of the contempt application to the Supreme Court pursuant to s 73(5) of the CAT Act would be the preferable course.

24. The Respondent further submitted, correctly in the Tribunal’s view that, civil contempts involve the criminal standard of proof (Witham v Holloway (1995) 163 CLR 525; [1995] HCA 3).

25. The Respondents submitted ([31]) that a “fundamental element” which the Applicants needed to demonstrate, beyond reasonable doubt, in order that the Respondents could be found guilty of contempt was that the conduct complained of had the tendency to interfere with the course of justice in the course of the proceedings, and rejected the Applicants’ contentions by reference to three specific matters:

1. the submissions made on behalf of the Respondent were made by their solicitor “in the usual course of proceedings”;

2. that the solicitor did not mislead the Tribunal, as evidenced by the Tribunal’s rejection of the Applicants’ dismissal application on 5 November 2024, and the reasons for such refusal.

26. At the time the Respondents filed their submissions the restraint application was apparently listed for further hearing on 10 and 11 March 2025. What then occurred is not known, and, although potentially relevant on sentencing if contempt were proved, would not be relevant to an evaluation of the events of 5 November 2024.

27. The crux of the Respondent’s contentions ([35]) was that there was no basis for suggesting that “making of submissions in legal proceedings with which (the opposing parties) disagree amounts to contempt” and that, if that were so, contempt of the State’s courts and tribunals would “occur on a regular basis”. It was submitted that the Applicants had previously made contempt applications. Whether that is so or not is not relevant for present purposes. The present application stands or falls on its merits, and is not assisted or impeded by what may have happened in previous contempt applications.

Applicants’ further submissions

28. On 20 March 2025 the Applicants made a number of submissions with respect to the Reasons of the Tribunal of 14 January 2025, by comparison with what was submitted to have emerged during the course of the hearing on 5 November 2024. The submissions of 5 November 2024 and the Tribunal’s Reasons of 14 January 2025 provide the context in which the present application must be determined.

29. The Applicants reiterated their contentions that the Respondent in the present proceedings “falsely” asserts that there was a decision on 5 November 2024 dismissing their dismissal application. A number of criticisms were levelled at the Tribunal with respect to the hearing on 5 November 2024 and the reasons for the Tribunal’s decision of that date published on 14 January 2025. What is alleged to have happened in other proceedings involving the present parties is not relevant for present purposes.

30. Relevantly, the Applicants submitted in support of their contention that the contempt proceedings should not be dismissed, or found to be vexatious or frivolous that there was “nothing frivolous about identifying contempt, bringing that contempt to the judiciary for some kind of disciplinary action, and no person is above being brought to account for such actions in accordance with the Rule of Law”. The Tribunal does not dispute those propositions. The issue for determination in these proceedings is whether the Respondent should be “brought to account” for contempt of the Tribunal in accordance with settled principles of law.

31. The contempt proceedings were submitted to be the “direct result of the actions” of the Respondent’s solicitor, acting on the Respondent’s instructions. A number of submissions were made with respect to the actual or expected knowledge and understanding of the Respondent’s solicitor ([29]-[31]). The Tribunal accepts that the Respondent’s solicitor knew, or should have known of each of those matters. Although the Respondent’s solicitor undoubtedly submitted that the Respondents were “within the bounds of s 110(1)” of the GIPA Act, the Tribunal struggles to understand that he knew, or ought to have known that “at all times to be false and misleading” as submitted by the Applicants. The Applicants have not provided evidence capable of establishing beyond reasonable doubt that the applicants for the restraint order knew that it could not be “within the bounds” of s 110 of the GIPA Act. That is unsurprising, given the terms of the provision and apparent scope for reasonable disagreement with respect to the interpretation of parts of it.

32. The submissions of the Applicants with respect to the advice given by the Respondent’s solicitors to them, which advice is privileged, cannot advance the contempt application. As recorded above, the Respondent’s solicitor is presumed to have acted on instructions from the Respondent. The Respondent does not suggest otherwise.

33. The Applicants referred to the decision of the Tribunal in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 in which the Tribunal recorded that parties in the position in which the Applicants find themselves “are not be regarded as unsophisticated members of the community with limited literary skills and a limited understanding of the statutory regimes in which they are operating”. Having regard to the material filed on behalf of the Applicants, although unrepresented, and not apparently having had legal training, they are neither unsophisticated members of the community, nor lacking in literacy skills and evidence considerable understanding of the provisions of the GIPA Act. No part of the determination of these proceedings turns on any of the matters referred to by the Tribunal in DXW.

28. The Applicants submitted ([45]) that the Respondent’s solicitor “is noted to be a practising solicitor for a quarter of a century. He in particular, as the formal representative and holding the salutation of doctor, is unable to provide any credible excuse for his behaviour(s)”. None of those matters advances, or impedes the present application. The solicitor’s conduct is evaluated objectively, and by reference to what a competent solicitor would have submitted, or not submitted, on 5 November 2024. Unless and until the Tribunal, or the Supreme Court, finds the conduct of the Respondent’s solicitor and/or the Respondent by reason of such conduct, to constitute contempt of the Tribunal, there is no occasion for the Respondent or the solicitor to provide any explanation or excuse for any conduct found to have been contemptuous of the Tribunal.

29. The Applicants further submitted ([47]) that the present case involved a contempt in the face of the Tribunal in that the conduct complained of “interfered with the course of justice because the conduct occurred to influence a Tribunal Member at first instance, and secondarily during Tribunal proceedings”. The Applicants thus raise two complaints. The first is that, in some unidentified way the conduct of the Respondent through the solicitor interfered with the course of justice. The second is that such conduct “occurred to influence a Tribunal Member”, and, inferentially, did so. Pivotal to both complaints are the allegations with respect to the conduct of the Respondent’s solicitor. Each of these serious complaints requires consideration.

30. The Applicants submitted ([53]) that, for the reasons articulated at [50]-[52] “It would not be appropriate for the Tribunal to determine any disciplinary action for the contempt proceedings directly” but rather would be appropriate ([54]) for the Tribunal to determine the contempt application and “defer to the NSW Supreme Court for restitution”. Having regard to the nature of their complaints, particularly in so far as, at least inferentially, they imply that the conduct of the Respondent’s solicitor improperly influenced, or was likely to improperly influence a decision of the Tribunal, if the Applicants establish that the conduct complained of is capable of constituting contempt of the Tribunal, the preferable course would be to refer the contempt application to the Supreme Court. If the contempt application is referred to the Supreme Court pursuant to s 73(5) of the CAT Act, whether the Respondent or the solicitor are prosecuted falls to be determined by the relevant officer of the Supreme Court. In a case such as this, it is preferable that the Tribunal not be seen to be the “prosecutor, judge and jury”. As the authorities make clear, in determining whether to refer a contempt application to the Supreme Court, the Tribunal decides only whether the evidence relied on by the applicant is admissible and “capable” of proving the alleged contempt beyond reasonable doubt. The Tribunal does decide whether there has been a contempt.

31. The Applicants reiterated their earlier contention that, in making the submissions he did on 5 November 2024, the Respondent’s solicitor “deliberately acted on the false premise that the Tribunal had jurisdictional powers it did not have” by seeking the relief it sought. The Applicants referred to findings in a previous decision (Webb v Port Stephens Council [2020] NSWCATAP 152) at paragraphs [58]-[65], which they set out in their submissions. In reliance upon that decision, it was submitted ([58]) that the Respondents were “all fully aware” that the relief sought by them in the referral request application were without merit. The Tribunal has considered that decision. Although the Applicants’ reliance upon it is understandable, having regard to the reasons for the decision of the Appeal Panel, the Tribunal does not consider that the decision advances, or impedes the present contempt application.

32. The Applicants submitted ([67]) that “None of the Respondents nor their Representative in the s 110 proceedings has made any effort to purge the contempt”. With respect to the Applicants, no question of purging contempt arises unless and until contempt is proved in accordance with the criminal standard of proof.

33. In concluding submissions ([78]) the Applicants reiterated their contention that the Respondents and their solicitor acted “as a collective in contempt of the Tribunal by engaging in conduct that had the tendency to and did interfere with and undermine the authority, dignity, and performance of the court (Tribunal) and those who participate in the court (Tribunal) proceedings; and at all times intending to do so”.

34. The Applicants made a number of submissions in relation to the penalties appropriate to be imposed on the Respondents if they are found guilty of contempt. None of those matters is relevant for present purposes, and would only be relevant in the event that the Respondent is found guilty of contempt.

35. The Applicants referred to an Affidavit of Jonathan Franklin of 13 December 2024. That Affidavit has no bearing on the evaluation of the conduct of the Respondents on 5 November 2024 which gives rise to the present proceedings.

36. On 27 March 2025 the Respondents filed further brief submissions which, with respect to them, do not materially add to matters.

The Hearing on 5 November 2024

43. The First and Second Applicants appeared at the hearing, as did the Respondent’s solicitor, assisted by two other agents or employees of the Respondent. The Tribunal identified the restraint order application on behalf of the present Respondent and others pursuant to s 110 of the GIPA Act which would “if successful, put limitations on the ability of those (present Applicants) to lodge applications under the GIPA Act”. The Tribunal acknowledged, accurately there is no doubt, that the present Applicants sought the dismissal of the restraint order application.

44. The Tribunal invited submissions on behalf of the present Applicants, which were made by the First Applicant. After referring to some matters of background which do not assume significance for present purposes, the First Applicant submitted that she thought “This is quite simple. So those three particular paragraphs talk about the Tribunal’s powers to make a section 110 order against a person, and those three paragraphs talk about the Tribunal not having the powers to issue a section 110 order, on one application, a section 110 order against more than one person, particularly in the context of acting in concert” and that although it “may be desirable to make an in concert order to prevent another person from making application with Ms Webb, section 110 does not give the Tribunal power to do so. In addition, the difficulties of identifying such an application by another person may make it impractical to enforce such an order”.

45. The First Applicant proceeded to make further submissions, particularly with respect to previous orders of the Tribunal, after which the Tribunal asked “Why are you seeking dismissal of the whole proceedings? Are you seeking dismissal against some of the respondents or all of the respondents or what?”. The First Applicant replied “They neither singularly or jointly, or if they have 150 agencies listed on their application, the Tribunal doesn’t have the jurisdiction to issue the orders that they want”. The First Applicant added that “It may be that these agencies can make singular applications, and I would totally understand that, but in the context of how this application has been filed, it’s our position that the Tribunal doesn’t have the jurisdiction for these particular circumstances”.

46. The Tribunal then invited the Respondent’s solicitor to make submissions, making clear to the First Respondent that, after those submissions “you’ll have an opportunity to respond”. The transcript suggests that there were difficulties with the audio link between the Respondent’s solicitor and the Tribunal. The Respondent’s solicitor referred to the Applicants’ submissions of 15 October 2024 with respect to jurisdiction and submitted that “Section 110 speaks of a person and persons acting in concert, but more particularly, the Interpretation Act 1987 provides that a person, where a person’s referred to in the singular can mean a plural, and where a person is referred to, it can mean a corporation, and that’s made clear in our written submissions and reply in this, which were filed just before Ms Webb’s on the 14^th of October”.

47. After further inaudible submissions, including reference to s 55(1)(b) of the CAT Act, the Tribunal suggested to the solicitor for the Respondent that “The short answer to that is that, if there is no jurisdiction, then the Tribunal just can’t deal with it. And so that’s just a question of whether or not the Tribunal has the power to make a decision in the application irrespective of what is contained in section 55 (of the CAT Act). That would mean that this Tribunal would be an [sic] error if it proceeded to deal with something that it didn’t have jurisdiction to do, so it would be bound to dismiss your application if there is no jurisdiction”.

48. In further submissions, recorded in the transcript as largely “inaudible”, the Respondent’s solicitor submitted that the restraint order applicants were “within the bounds” of s 110 of the GIPA Act in seeking the restraint on the ability of the Applicants to make further GIPA applications. The Tribunal then suggested “So, you would need to establish against each of those respondents that an order should be made under section 110. Is that your case in the substantive matter?” The solicitor for the Respondent replied that “In the substantive matter that would be seeking order [sic] in favour of the three applicants”. The solicitor for the Respondents agreed with the suggestion then made by the Tribunal that the Respondents would “need to establish that each of those (Applicants), that an order should be made against them under section 110”.

49. After the Tribunal referred to the Appeal Panel decision on which the Applicants relied, the Tribunal asked whether the Appeal Panel “found that it was impermissible to simply make the order about in concert with any other person, irrespective of who that could be”. The Respondent’s solicitor replied “That’s my understanding of the Appeal Panel’s decision” and submitted that there were “a lot of grey areas in section 110” of the GIPA Act, and that it was “not an issue on which there is currently a clear statement of the law”. That submission does not appear to have been without foundation. The Tribunal then asked whether the Respondents’ argument was that “by virtue of the meaning given to the words in both the GIPA Act and in the Interpretation Act, it is permissible for the three restraint order applicants to make their application against the three (present Applicants), that they’re not precluded from doing so because of the definitions of person in the GIPA Act, and also that the singular includes the plural under the Interpretation Act”. The Tribunal further suggested that “Because you are seeking an order under section 110 against each of the named (Applicants), there’s no issue that would offend the earlier Webb appeal decision”. The Respondent’s solicitor agreed with the Tribunal’s summary of the arguments. In response, the First Applicant reiterated the Applicants’ primary submissions.

The Tribunal’s oral reasons for its decision of 5 November 2024

50. After summarising, accurately the Tribunal is satisfied, the parties’ competing contentions, the Tribunal recorded that in its “view”, the restraint order applicants had an “arguable case that it is permissible” to pursue the restraint order application, and did “not consider that there is an issue in the three agencies bringing this application and indeed the Tribunal has dealt with in the past an application under section 110 from more than one agency against an individual”. The Tribunal reiterated its finding that the restraint order applicants had an “arguable case” for seeking relief against “three named individuals”, the form of order ultimately made being a matter for determination in subsequent proceedings. The Tribunal observed that the Applicants were “at liberty to make arguments before the Tribunal who hears the substantive matter in relation to what sort of orders can be made by the Tribunal”. The Tribunal thus “would not dismiss the proceedings” the effect of which was that the Applicants’ application for dismissal of the restraint application was dismissed, leaving on foot for subsequent determination the merits of the restraint application.

51. There followed a number of submissions by the Second Respondent in relation to the Tribunal’s decision and discussion about procedural matters which do not assume significance for present purposes.

52. The decision of 5 November 2024 has apparently not been appealed against. Nothing turns on that for present purposes.

The Reasons for Decision of 14 January 2025

53. In its published Reasons, the Tribunal recorded, accurately as it did on 5 November 2024, the competing applications of the parties before it. The crux of the Applicants’ case was that it was “not permissible” for three agencies to have lodged the restraint application or for such an application to be made against more than one entity, or a corporation. The Tribunal reiterated the submissions of the present Respondent in reliance particularly upon the definition of “person” in s 8 of the Interpretation Act 1987 and the canon of construction that, if the section did not apply, there needed to be “some clear indication in an individual piece of legislation” that it did not.

54. The Tribunal reiterated that it did not “consider that there is an issue in the three agencies bringing this application and indeed the Tribunal has dealt with in the past an application under s 110 from more than one agency against an individual”. The Tribunal thought that happened in a matter of “Powell” but did not further identify the decision or the passages in it which were considered to be supportive of the Tribunal’s finding. That decision not having been referred to by the present parties, as a matter of procedural fairness, the Tribunal has not searched for, or read it. Importantly, the Tribunal recorded that it thought that the present Respondent had an “arguable case that it can bring an application against three named individuals”, the form of order, if the application was successful being a matter in respect of which the parties could make submissions and which the Tribunal would consider.

55. The Tribunal did not consider the matter was “suitable to being dismissed summarily”, and that the present Applicants were “at liberty to make arguments before the Tribunal who hears the substantive matter in relation to what sort of orders can be made by the Tribunal”.

Consideration

56. Two questions potentially require answering in these proceedings:

57. Whether the conduct of the Respondent’s solicitor on 5 November 2024 relied on by the Applicants is capable of establishing contempt in the face or hearing of the Tribunal beyond reasonable doubt, and, if it is found to be:

58. Whether the Tribunal should proceed to hear and determine the contempt application pursuant to s 73(1) of the CAT Act, or exercise its discretion to refer the application to the Supreme Court pursuant to s 73(5) of the CAT Act.

59. For the reasons which follow, the Tribunal answers the first question in the negative. If the first question had been answered in the affirmative, for the reasons recorded below, the Tribunal would have referred the contempt application to the Supreme Court.

60. The parties to the proceedings on 5 November 2024 had diametrically opposing views with respect to two issues: whether the Respondents could jointly bring the restraint order application, and whether brought by one or more of them, the application could be brought against the two individual and one corporate entity. It is to be remembered that on 5 November 2024 the Tribunal was concerned only to determine whether the restraint order application should be dismissed for want of jurisdiction. No part of the hearing engaged with the merits of the restraint application, or the present Applicants’ defence to it.

61. The principles governing dismissal applications in the Tribunal are articulated in s 55 of the CAT Act, s 55(1)(b) of which provides that the Tribunal may dismiss proceedings at any stage if it considers them to be frivolous or vexatious or otherwise misconceived or lacking in substance. The Applicants may have been may have been relying on all of those matters in support of their dismissal application. The transcript suggests that the real issue was whether the restraint order application lacked substance. Arguably, that ground for summary dismissal involved the lowest threshold for the Applicants.

62. Although the test has been variously expressed in stronger terms (General Steel industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69; Dey v Victorian Railways Commissioners (1948) 78 CLR 62; [1948] HCA 1; Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57) in cases like the present, a party may successfully seek summary dismissal by demonstrating on the civil standard of proof that, taken at its highest, the applicant’s case lacks reasonable prospects of success (Hebashy v SGS Australia Pty Ltd [2024] FCA 28). The Tribunal appears to have approached the Applicants’ dismissal application on that basis. The power to summarily dismiss is exercised sparingly, and only when the court has sufficient evidence and submissions to justify terminating an action (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25; Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81).

63. Neither party referred the Tribunal to any authority directly impacting upon the unappealled determination of the Applicants’ dismissal application. In those circumstances, it is difficult to see how a court could be satisfied beyond reasonable doubt that the Respondent’s solicitor knowingly misled the Tribunal on 5 November 2024 by making submissions which he knew, or ought to have known, were plainly wrong, or untenable. Nothing to which the Tribunal has been referred is capable of establishing such knowledge or intention.

64. It is also important to note the findings made by the Tribunal on 5 November 2024, the effect of which was that the Tribunal was not satisfied that the restraint application was frivolous or vexatious or otherwise misconceived or lacking in substance. So finding did not expressly or impliedly involve the Tribunal’s acceptance that it did have jurisdiction to grant the relief sought by the Respondents pursuant to s 110 of the GIPA Act, but simply that it was not persuaded that it did not. In the Tribunal’s view, when the facts of the case fully emerged at the substantive hearing, it remained open for the Applicants to submit to the Tribunal that, for reasons previously advanced and any further reasons then advanced, the Tribunal lacked jurisdiction or power to grant the restraint order application.

65. The Tribunal is accordingly not persuaded that the conduct of the Respondent’s solicitor is capable of constituting a contempt of the Tribunal or, vicariously constituting contempt of the Tribunal by the present Respondent. There are undoubtedly cases where the submissions of an advocate to the Tribunal could constitute contempt of the Tribunal by the advocate, or vicariously, by his principal, on whose instructions the advocate acted. Particularly in cases where the advocate represents a model litigant, and the opposing party is unrepresented, knowingly failing to inform the Tribunal of relevant statutory provisions, authorities or facts and circumstances which preclude or militate against the success of the case being propounded by the advocate could potentially constitute contempt of the Tribunal. The evidence relied on by the Applicants in this case is not capable of establishing any of those matters beyond reasonable doubt.

56. There are, as the Applicants’ submissions recognise, two elements in an alleged contempt of the present kind. The second element is that the conduct complained of was likely to interfere with the course of justice by misleading the Tribunal. In what way the Tribunal was misled, or likely to have been misled by the conduct of the Respondent’s solicitor has not been identified, other than by repeated assertions of an intention to do so, or that, by agreeing with the submissions of the Respondent’s solicitor, the Tribunal must have been misled. The transcript and the Tribunal’s Reasons do not suggest that the Tribunal was misled, or likely to have been misled by the submissions of the Respondent’s solicitor. The correctness of the Tribunal’s decision is not relevant for present purposes. Even if, contrary to the Tribunal’s finding, the conduct of the Respondent’s solicitor could have constituted contempt of the Tribunal, there is no basis for finding that, by reason of anything said or not said by the Respondent’s solicitor, the Tribunal was misled, or likely to have been misled.

57. Although the Tribunal’s decision is not reliant on them, the provisions of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (Conduct Rules) provide a useful guide or benchmark with respect to the duties and obligations of solicitors to courts. There is no reason to find that those duties and obligations do not apply to solicitors appearing before the Tribunal.

58. Rule 3.1 of the Conduct Rules provides that a solicitor’s duty to the court and the administration of justice is “paramount” and prevails to the extent of inconsistency with any “other duty”. The transcript of the hearing on 5 November 2024 does not reveal evidence capable of supporting a finding that the solicitor breached that rule.

59. Rule 4 of the Conduct Rules provides that a solicitor must also act in the best interests of a client in any matter in which the solicitor represents the client, be honest and courteous in all dealings in the course of legal practice, deliver legal services competently, diligently and as promptly as reasonably possible, avoid any compromise to their integrity and professional independence and comply with the Conduct Rules and the law. No breach of any relevant part of that rule is revealed by the transcript of the hearing on 5 November 2024. Competence does not require a solicitor’s submissions to be “right” in the Tribunal’s view. In any event, the Tribunal’s unchallenged decision involved acceptance of the correctness of the solicitor’s submissions.

60. Rule 5 of the Conduct Rules prohibits a solicitor engaging in conduct in the course of legal practice or otherwise which demonstrates that the solicitor is not a fit and proper person to practice law or is likely to a material degree to be prejudicial to or diminish the public confidence in the administration of justice or bring the legal profession into disrepute. The evidence provides no support for a finding in those terms in this case.

61. Conduct Rule 19 provides that a solicitor must not deceive or knowingly or recklessly mislead the court, and must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading. The evidence does not support a finding in those terms in this case.

62. Rule 19.3 provides that a solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person. At its highest for the Applicants, the evidence might establish that the solicitor made an erroneous statement to the Tribunal on 5 November 2024. If he did, the evidence supports the benign finding provided by the rule.

63. Rule 19.6 requires a solicitor to inform the court of any binding authority, or, in the absence of binding authority, any authority decided by an Australian court and any applicable legislation known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case if the court has not already been informed of those matters. The evidence does not support finding that the solicitor breached the rule.

64. Rule 19.11 provides that a solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making as soon as the solicitor becomes aware of the misapprehension. The evidence does not support finding that he solicitor breached the rule.

65. At common law a barrister or solicitor advocate was immune from liability in negligence in the conduct of proceedings before a court. Fundamental to “advocates’ immunity” was acceptance that the administration of justice required that a barrister should be able to carry out his duty to the court fearlessly and independently (Rondel v Worsley (1969) 1 AC 191).

66. In Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 the High Court extensively reviewed the law with respect to advocates’ immunity and the scope of such immunity. Relevantly for present purposes, the majority held that the “intimate connection required to attract the immunity is a functional connection between the advocate’s work and the judge’s decision”. The majority further held that the immunity “can only be invoked where the advocate’s work has contributed to the judicial determination of the litigation” and does not “extend to acts or advice of the advocate which do not move litigation towards a determination by a court”. The “intimate connection” between the advocate’s work and the “conduct of the case in court” must be such that the advocate’s work affects the way the case is to be conducted so as to affect its outcome by a judicial decision.

67. At its highest for the Applicants, which has not been established, the Respondent’s solicitor’s conduct of the case on 5 November 2024 may have involved negligence. The decision in Attwells illustrates the extent to which the law recognises the importance of advocates being able to fearlessly and independently conduct litigation without fear of liability for negligently doing so, by making submissions which are wrong in law, or rejected by the court or tribunal before which they are made, and the improbability of the solicitor in this case being found guilty of contempt of the Tribunal.

68. For the reasons recorded above, the contempt application will be dismissed.

Orders

1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispense with a hearing of the contempt application filed on 31 January 2025.

2. The contempt application filed on 31 January 2025 is dismissed.

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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: 02 May 2025