Commissioner of Police, NSW Police Force v Bonkain

The summonses

1. The summonses issued to Dr Bench and Ms da Cruz were in similar terms. Each sought "All records held...relating to treatment provided to Mr Aaron Bonkain…including but not limited to":

• medical history
• clinical notes
• records
• letters
• reports
• correspondence; and
• medications prescribed.

1. Ms da Cruz was asked to provide such documents from 1 October 2021 and Dr Bench was asked to provide them from 30 May 2022. The relevance of those dates is discussed below.

The Tribunal's decision

1. The Tribunal gave brief oral reasons for setting aside the two summonses. The Tribunal referred to the principles set out in CPJ v The University of Newcastle [2017] NSWCATAD 350 (CPJ) in relation to setting aside a summons and stated: … the tribunal draws on common law principles when determining whether to set aside a summons. At common law, and the authorities are clear in other jurisdictions, that (sic) a summons may only be issued for a legitimate forensic purpose. The onus is upon a party attempting to procure the material to demonstrate that the legitimate forensic purpose exists by reference to issues as disclosed in the proceedings.
2. The Tribunal went on to find that the two summonses were too broad and amounted to a fishing expedition in that they sought "all records held" by the persons summonsed "pertaining to the medical history, clinical notes, records, letters, reports, correspondence and medications prescribed to" Mr Bonkain. It was further stated that the schedule of the summonses was not limited in terms of the documents sought to be produced relating to matters concerning Mr Bonkain's mental health.

The grounds of appeal

1. The Commissioner seeks leave to appeal on two grounds: 1. That the Tribunal incorrectly made a determination that the material captured under the summonses was not relevant to the proceedings and that the scope of the summonses was too wide; and 2. That the Tribunal's decision was made without intelligible justification in determining that the scope of the summonses was too broad and that the material produced in response to the summonses was not relevant to the substantive proceedings.

The relevant law

1. The decision to set aside the summonses was an interlocutory decision within the meaning of s 4(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Section 80(2)(a) of the NCAT Act provides that an internal appeal from an interlocutory decision can only be made with the leave of the Appeal Panel. The Commissioner therefore seeks leave to make the appeal.
2. The principles which apply to leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. The Appeal Panel stated at [34] to [35]: "34 [T]here is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave."
3. The reference to Collins is a reference to the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17. In that matter, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
4. The Appeal Panel also noted that in relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions.
5. Further, the decision of the Tribunal to set aside the summonses was a discretionary decision. As the High Court stated in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505: [i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

Submissions of the parties

1. In relation to ground 1 of the appeal the Commissioner submits that, in determining that the summonses involved a "general call for all records" and were therefore too broad, the Tribunal exercised its discretion in a manner which engages the following errors and, pursuant to the principles in House v R, warrant appellate intervention. The Commissioner submits that the Tribunal mistook the precise terms of the summonses such that its assessment of the scope of the summonses as being too broad involved a mistake as to the facts. Secondly, the Tribunal incorrectly applied the law in determining that the scope of the summonses was too wide and amounted to a fishing expedition.
2. Mr Bonkain submits that the Tribunal did not err in the exercise of its discretion and notes that the fact two different Tribunal members might come to a different conclusion does not give rise to unreasonableness.
3. Mr Bonkain submits that the approach of the Tribunal did not lead to any material mistake of fact. He notes that the very clear issue in the proceedings is his mental health and that the Tribunal identified the correct test to be applied as to whether the summonses were issued for a legitimate forensic purpose. In general, Mr Bonkain supports the Tribunal's conclusion that the summonses involved a general call for the production of all records held by Dr Blanch and Ms da Cruz and any general medical or other records held by them (other than those concerning Mr Bonkain's mental health) would fall outside the issues to be determined in the firearms licence matter.
4. Mr Bonkain also submits that the use in the summonses of the words "relating to treatment" (of him) does not limit the scope of the summonses and the summonses would still capture records which are not relevant to the proceedings. He further submits that, even if the term "relating to treatment" limited the scope of the records sought under the summonses, the recipients should not be put in a position where they had to engage in an exercise of interpretation as a whether a document may or may not be "related to treatment". He refers to the decision of Garling J in Gill v Trustees of the Marist Brothers [2022] NSWSC 1087 at [21] to support that submission.
5. Mr Bonkain also submits that the summonses are in fact a fishing exercise. He alleges that the Commissioner is seeking, through the summonses, to find additional issues which may be raised against Mr Bonkain. In this context he notes that he has never been hospitalised as a result of his PTSD, has no record of violence and has never committed firearms offences. At the appeal hearing, while these matters may have a bearing on the ultimate outcome of the review proceedings, Mr Bonkain was unable to explain the relevance of these matters to the appeal and the issue of whether the summonses are too broad.

Did the Tribunal mistake the facts?

1. The Tribunal's ultimate finding was that the summonses were too broad as they were not limited to producing documents "relating to matters concerning the Applicant's mental health". This finding was based on the Tribunal's conclusion that the summonses were not limited to mental health related incidents but were "a general call for production of all records". The Tribunal was of the view that the summonses were broad enough to capture matters not concerning Mr Bonkain's mental health (such as blood tests or other diagnostic testing) as well as, for example, financial records, which are irrelevant to Mr Bonkain's health.
2. The summonses sought records held by Dr Blanch and Ms da Cruz "relating to treatment provided to" Mr Bonkain. The evidence before the Tribunal which had been filed in the proceedings prior to the issue of the summonses and which had been before the decision maker included a statement made by Mr Bonkain dated 14 March 2023, requests from the Firearms Registry that Mr Bonkain provide a report from a Psychiatrist/Psychologist about his mental health and suitability to hold a firearms licence and reports from Dr Bench and Ms da Cruz in the format required by the Firearms Registry. In his statement Mr Bonkain said he "began treatment for PTSD" with Ms da Cruz in October 2021 and has been "engaged in further treatment" with his psychiatrist, Dr Bench, since September 2022. The summons to Ms da Cruz sought records relating to treatment since October 2021 and that to Dr Bench sought records relating to treatment since 30 May 2022. In his report Dr Bench states that Mr Bonkain was referred to him by his GP on 30 May 2022 and he was first assessed on 19 September 2022.
3. The above evidence clearly disclosed that Ms da Cruz and Dr Bench had each treated Mr Bonkain for his PTSD. Indeed, the purpose of his referral to both practitioners was for treatment for his PTSD. This evidence was emphasised by the Commissioner at the Tribunal hearing.
4. In our view the Tribunal's conclusion that the summonses went beyond Mr Bonkain's mental health (which is the central issue in the proceedings) as it was a general call for call for documents and therefore captured irrelevant documents unrelated to Mr Bonkain's health was not reasonably open. Given the facts set out above, in particular the identity and role of Dr Bench and Ms da Cruz in treating Mr Bonkain and the date range in the summonses, the Tribunal should have acknowledged that the words "relating to treatment" limited the production of records such that documents which have no apparent relationship with the treatment given to Mr Bonkain do not fall within its scope.
5. We do not agree with the submissions of Mr Bonkain, relying upon the judgment in Gill v Trustees of the Marist Brothers, that use of the words "relating to treatment" is impermissible in a summons as it puts the recipients in a position where they have to engage in an exercise of interpretation as to whether a document may or may not be related to treatment. In Gill v Trustees of the Marist Brothers the summons in question sought production of documents "relating to complaints, allegations, charges and/or convictions" relating to sexual abuse allegedly carried out by Marist Brothers at a particular school during a particular period. Garling J set aside the summons for a variety of reasons, primarily because the summons did not reveal a legitimate forensic purpose. He also stated at [21]: …the fact that the documents are described as "relating to complaints, allegations, charges and/or convictions" suggests that the recipient of the subpoena has to engage in an exercise of interpretation as to whether a document may or may not relate to any one of those suggestions. In my view, that wording is impermissible in a subpoena and I would not permit such wording.
6. We agree with the Commissioner's submissions that his Honour's conclusion was plainly specific to the facts of that case which imposed a wide ranging inquiry into the existence of various documents which might fall within the terms of the summons. That is not the case here where, for the reasons already expressed, the documents were sought from medical practitioners who were treating Mr Bonkain and which could reasonably be expected to be contained in his patient file.
7. We find that the Tribunal's misunderstanding of the factual circumstances and the misconstruction of the terms of the summons led it to make an erroneous finding that the summonses are not limited to matters concerning the mental health of Mr Bonkain.

Incorrect application of the law

1. The Tribunal's conclusion that the summonses were too broad was based on a concern that the summonses may capture documents which were not relevant to the issue in the proceedings. The transcript provided by the Commissioner shows that the Tribunal was very concerned with the relevance of documents that may be captured by the summonses and whether they therefore had a legitimate forensic purpose. As noted above the Tribunal referred to the possibility of the documents disclosing financial matters or other health matters not related to mental health.
2. The Tribunal was correct to identify that for a summons to be issued there must be a legitimate forensic purpose: Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840 at [42] and the cases cited therein; CPJ at [9]. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: CPJ. As was stated in Sharpe v Grobbel [2017] NSWSC 1065 at [35],the question is whether there is a reasonable basis for supposing that the material called for will likely add in some way to the relevant evidence in the case. In the case Brereton J went on to say that this reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly "throw light on the issues in the case".
3. The terms of the summonses and the submissions of the Commissioner before the Tribunal make clear that the documents sought under the summonses were relevant to the issues in the proceedings. As noted above, the summonses were issued to the two mental health practitioners who were treating Mr Bonkain for his PTSD and who had provided reports for Mr Bonkain to use in his challenge to the revocation of his firearms licence. The summonses called for records relating to their treatment of Mr Bonkain. It is clear that the records asked for under the summonses would likely add in some way to the relevant evidence in the case.
4. We agree with the submissions of the Commissioner that the fact that a summons could hypothetically capture certain documents which are not of immediate relevance to Mr Bonkain's mental health, does not warrant characterising the summons as overly broad and therefore liable to be set aside. That the summonses may possibly capture some records such as invoices which are ultimately irrelevant to the proceedings does not mean that the summonses are illegitimate, particularly as the relevant test is whether the documents sought under the summons have apparent relevance to the case. In our view, the Tribunal applied an overly restrictive view of the permissible scope of a summons which is not in accordance with the well-established principles relating to summonses.
5. We are also of the view that in characterising the summonses as a "fishing expedition" the Tribunal fell into error. It is accepted that a summons will be set aside if it is being used as part of what is commonly referred to as a "fishing expedition". However, a summons may only be described as "fishing" where a party attempts by way of a summons to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge: CPJ at [9]. That is not the case here where the summonses were directed towards records held by Mr Bonkain's treating mental health practitioners and which underpinned the reports they had provided in support of his application. To describe the summonses as "fishing" is not a tenable proposition and nor is it in accordance with relevant legal principles.

Conclusion

1. In summary, the Tribunal's decision that the summonses were too broad and amounted to a fishing expedition involved a mistake as to the facts and a misapplication of the law. We were satisfied that ground 1 of the appeal is made out. In our view, the Tribunal failed to properly exercise its discretion with respect to the application to set aside the summonses and fell into an error of the type set out in House v R. In these circumstances we granted leave to appeal and granted the appeal. Because of our conclusions we did not need to consider ground 2 of the Commissioner's appeal.
2. We also exercised our functions under s 81 of the NCAT Act and determined that the applicant and respondent in the Tribunal matter are granted access to the summonsed material (which may be uplifted by the parties' legal representatives).

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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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2024