Danis v Commissioner of Police

The Appeal

1. The Notice of Appeal was lodged on 23 October 2020, before the reasons were available. An Amended Notice of Appeal was lodged on 1 December 2020, together with submissions in support of the appeal.
2. The appellant relies on 7 grounds of appeal, which in summary are that the Tribunal Member erred by: 1. failing to consider and apply relevant legislation; 2. failing to consider and apply the principles in the authorities cited; 3. relying on an applying irrelevant or wrong principles; 4. misconstruing the principles applied; 5. delivering inadequate or insufficient reasons; 6. making findings in the face of the evidence; and 7. being biased against the appellant and making decisions contrary to the rules of natural justice.
3. A decision concerning the issue of a summons is an interlocutory decision of the Tribunal as defined in s 4(1) of the NCAT Act: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - … (c) the issue of a summons,
4. An internal appeal in the case of an interlocutory decision of the Tribunal requires the leave of the Appeal Panel: NCAT Act, s 80(1)(a).
5. The appellant sought leave to appeal, relying on each of the principles stated in Collins v Urban [2014] NSWCATAP 17 at [82]-[84]: 1. The issues of principle are the errors of law in grounds 1 to 7; 2. The question of public importance is that parents and children should feel confident that reports of child abuse to police are taken seriously and that police officers do not misconduct themselves; 3. The injustices and errors are articulated in the 7 grounds of appeal; 4. The factual error unreasonably arrived at is the failure to consider the applicant's evidence before the Tribunal; and 5. The grounds of appeal show that the Tribunal made an error of fact without considering the applicant's evidence and this produced an unfair and unjust result that ought to be reviewed.
6. The respondent's response to the Amended Notice of Appeal is provided in the submissions filed on 11 January 2021. The respondent opposed leave to appeal being granted, on the ground that the interlocutory decision was of a routine nature, no error of law was established, the Tribunal's decision was reasonably open to it, and the Tribunal did not have regard to any wrong principles and its decision did not involve issues of principle. The respondent submitted that none of the 7 grounds of appeal were made out, and the appeal should be dismissed.
7. The appellant applied for a stay of the decision pending determination of the appeal under s 43 of the NCAT Act. That application was opposed by the respondent. The application for a stay was refused on 6 November 2020, and the hearing of the appeal listed for 5 February 2021.

Material before the Appeal Panel

1. In support of his appeal the appellant provided: 1. Copies of the applications for the issue of a summons, including the reasons for the request; and 2. Affidavit of 29 June 2020 in proceedings 2020/976662, with 27 annexures.
2. The parties provided written submissions, the appellant on 1 December 2020, and the respondent in reply on 11 January 2021.
3. The Appeal Panel obtained the Divisional file, and the accompanying summons file.

The Decision under Appeal

1. The Tribunal summarised the information sought in the appellant's access application, and recorded that the respondent was relying on the public interest considerations against disclosure in clauses 1(d) and (g), and 3(a) and (g) of the Table to s 14 of the GIPA Act, being whether disclosure of the information could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (cl 1(d)); 2. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (cl 1(g)); 3. reveal a person's personal information (cl 3(a)); 4. in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed (cl 3(g)).
2. The Tribunal stated the test for the granting of access under a summons to be that in R v Saleam [1999] NSWCCA 86 ("Saleam") at [11], that the applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is "on the cards" that the documents will materially assist his case. The Tribunal noted that a legitimate forensic purpose will exist if the evidence or documents have apparent relevance to the issues in the proceedings, and that it is impermissible for a party to use a summons for "fishing", that is to attempt to find out facts, matters and circumstances which might enable that party to advance a case of which there is no present knowledge.
3. The Tribunal quoted the reasons provided in the applications for the issue of the summonses. Both relate to statements made by DS Ferns at [27] and [28(b)] of his affidavit dated 2 June 2020.
4. In the case of the summons addressed to DSC O'Donnell, the appellant stated in his request that that "relies on narratives within documents created by the OIC, DSC Bridget O'Donnell, on reports made by her to other authorities and on submissions regarding same", and that he seeks the production of COPS event E53122954 because that document is relevant to [27] and [28(b)] of DS Ferns' affidavit. The appellant stated: My affidavit and submissions filed 29 June 2020 refer extensively to statements in DS Ferns' affidavit, to narratives within documents created by DSC O'Donnell, to reports made by her to other authorities, to the Respondent's submissions and to narratives in COPS event E53122954 and, allege that DSC O'Donnell engaged in misconduct or negligent, improper or unlawful conduct. The material filed in this matter shows that the evidence and document sought by the summons are relevant because they rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding and go to sections 3, 12(2)(a), 12(2)(b) and 12(2)(e) of the GIPA Act.
5. In the case of the summons addressed to Inspector Greene, the appellant stated in his request that DS Ferns' affidavit "relies on narratives within COPS event E54409764 created by Inspector Chevonne Greene, on reports made by her to other authorities and on submissions regarding same". The appellant stated: My affidavit and submissions filed 29 June 2020 refer extensively to statements in DS Ferns' affidavit, to narratives within COPS event E54409764 created by Inspector Greene, to reports made by her to other authorities and to the Respondent's submissions and, allege that Inspector Greene engaged in misconduct or negligent, improper or unlawful conduct. The material filed in this matter shows that the evidence sought by the summons is relevant because it rationally affects (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding and go to sections 3, 12(2)(a), 12(2)(b) and 12(2)(e) of the GIPA Act.
6. The Tribunal noted that s 3 of the GIPA Act contains the Act's objects, and that s 12(2)(a), (b) and (e) contain public interest considerations in favour of disclosure, being: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
7. The Tribunal noted the appellant's submission that the objections to the summonses "is an attempt to cover up the misconduct, negligent, improper and unlawful conduct of the NSW Police Force and the police officers involved, which was a vendetta against the Applicant motivated by malice, arrogance and spite", and that the evidence would enable the Tribunal "to make decisions on the whole of the evidence" and assist the just resolution of the issues in dispute; and that the summonses "do not cause the Respondent any injustice".
8. The Tribunal summarised the respondent's objection to the summonses to be on the grounds that there is no legitimate forensic purpose, and the summonses are not compatible with the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal summarised the respondent's submissions, that: 1. The COPS Event E53122954 does not reveal misconduct and does not record the assault alleged to have occurred involving the appellant's son, and does not meet the threshold articulated in Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 ("Barrett") to establish misconduct; 2. Neither of the officers is named or referred to in the COPS Event. Officer Greene is not named in the information to which access is sought or otherwise involved in the obtaining of the electronically recorded interview. Officer O'Donnell participated in the recorded police interview which is the subject of the access application, and to require her to give evidence presents a risk "that the proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information": Lonsdale v University of Sydney [2015] NSWCATAP 277 ("Lonsdale") at [33].
9. The Tribunal then considered the summons to produce evidence, and the appellant's submission that the information in that document would show that his son's assailant engaged in a pattern of abusive behaviour towards various persons including the mother, that he brought that behaviour to the attention of the Police, and that the Police concerns that he coached his son in their evidence and submissions are not honestly held or have no factual basis. The Tribunal held that the first two matters are not facts in issue in the proceedings, nor did they relate to the public interest considerations in issue, or those on which the applicant relies. The third matter might possibly be relevant to the consideration in cl 3(e), however the appellant had to establish that it is "on the cards" that the document would materially assist his case, and it was not apparent how it could support his claim about concerns he coached his son or how those concerns relate to the considerations against disclosure.
10. The Tribunal considered the summonses to attend and give evidence, noting that the applicant had not specified what fact in issue would be affected. Inferring that it related to the appellant's allegation of misconduct against the two officers, the Tribunal held that misconduct by those officers, even if established by their evidence, would be relevant if it assisted the case that disclosure of the information could reasonably be expected to reveal or substantiate misconduct (s 12(2), note, paragraph (e)). Such a finding would require evidence as considered in Barrett. The agency has the onus of establishing the public interest considerations on which it relies, under s 105 of the GIPA Act, and must adduce evidence to show that those considerations exist. The Appeal Panel has held in Lonsdale at [32-33] that to summons witnesses who are officers of the agency will be appropriate only in cases where there are strong reasons in support, and at [34] that decisions regarding summonses should be mindful of the emphasis in s 36 of the NCAT Act on practices that facilitate the just quick and cheap resolution of the real issues, and which are proportionate to the complexity of the subject matter.
11. The Tribunal concluded: 22. It is apparent that the applicant wishes to challenge portions of the respondent's evidence in this matter which rely on the two officers' accounts. The applicant has not established that the evidence of these officers would be forensically relevant to the issues in these proceedings; instead it appears to be more of a hopeful exercise in the nature of a fishing expedition. He has not demonstrated strong reasons for the summons to be upheld, He also has not shown that it is "on the cards" that any evidence of the officers would materially assist his case. 23. The summonses lack legitimate forensic purpose and should be set aside.

Hearing of the Appeal

1. Ground 1 of the appellant's grounds of appeal is that the Tribunal erred in failing to consider and apply relevant legislation, being: 1. Section 50(1)(c) of the NCAT Act; 2. Sections 3(e), (f) and (g) of the NCAT Act; and 3. Sections 3, 5 and 12 of the GIPA Act.
2. In support of the first contention, referred to in these reasons as Ground 1(1), the appellant submits that he had stated in his submissions of 14 September 2020 his preference that a hearing be held to decide the summonses, and that in deciding the respondent's objections to the summonses without a hearing and without making an order to dispense with the hearing as required by s 50(1)(c) of the NCAT Act, the Tribunal had failed properly to apply s 50 of the NCAT Act.
3. The respondent's submissions on the appeal in response were that notwithstanding the Tribunal determined the interlocutory hearing on the papers and in the absence of a hearing, the parties were afforded procedural fairness, having had an opportunity to make submissions in relation to the summonses and the objection to them, and the Tribunal had regard to those submissions when making the decision.
4. The Appeal Panel heard submissions on Ground 1(1). The appellant submitted that he had in his submissions on the summons issue specifically requested a hearing and for the Tribunal to proceed to make a decision without a hearing and without him knowing that was a breach of procedural fairness: Kioa v West [1985] HCA 81; (1985) 189 CLR 550.
5. The respondent submitted that the parties had had the opportunity to make submissions. While there was no formal order to dispense with a hearing, in circumstances where there was an opportunity to make submissions there was no procedural fairness issue. Determining the summons issue on the papers was consistent with s 38 of the NCAT Act, and with the COVID-19 arrangements for matters to be determined where possible on the papers or by telephone. A summons issue is usually dealt with on the papers.
6. The Tribunal drew the parties' attention to the decision of Adamson J in CLD v Children's Guardian [2017] NSWSC 936 (discussed below) and her Honour's conclusion at [17] that the failure to comply with s 50 of the NCAT Act vitiated the Tribunal decision under appeal. The respondent submitted that the Tribunal was bound to follow that decision. The appellant submitted that the Tribunal has to notify the parties of any order to dispense with a hearing.
7. The Appeal Panel determined that leave to appeal should be granted, for the following reasons.

Dispensing with a hearing

1. Section 50 of the NCAT Act relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a)in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5)This section does not prevent the Tribunal from holding a hearing even if it is not required.
2. The power to issue a summons is conferred by s 48 of the NCAT Act. NCAT Procedural Direction 2 provides the procedure for the issue of a summons, and states in clauses 31-34 the procedure for dealing with any objection to a summons. Clause 34 states that objections that cannot be resolved by discussion or agreement "will be referred to a Member for decision".
3. An order under s 50(2) to dispense with a hearing is an exception to the fundamental proposition in s 50(1) that a hearing is required for proceedings in the Tribunal other than in the circumstances specified in s 50(1)(a)-(d). Determining an objection to a summons is not specified in paragraphs (a) or (b). It is not, other than in the circumstances specified in rule 41 of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules), prescribed for the purposes of s 50(1)(d) in the "procedural rules", which are defined in s 4(1) of the NCAT Act to be the NCAT Rules or the regulations, being the Civil and Administrative Tribunal Regulation 2013 (the NCAT Regulation).
4. Rule 41 provides that a decision concerning the setting aside of a summons or excusing compliance with a summons, or a decision concerning the granting of access to documents or things produced in compliance with a summons, is a decision that may, at the direction of the President or a Division Head, be made by a registrar: NCAT Rules r 41(1)(h), (i). Proceedings for a decision by a registrar under subrule 41(1) are prescribed for the purposes of s 50(1)(d), which means that a hearing is not required: NCAT Rules, r 41(1A).
5. In these proceedings the respondent notified the Registrar on 28 August 2020 after the summonses were served that it objected on the basis of relevance. The registrar's notes on the Return of Summons on 31 August 2020 confirm the respondent's objection, and the dates by which the parties were to provide submissions, and include a note that the respondent was "OK on the papers".
6. It is clear from those notes that the question of whether the objection could be determined on the basis of the parties' submissions was discussed at the return of summons before the registrar. In his submissions filed on 14 September 2020 the appellant stated: 63. During the 31 August 2020 directions hearing the parties were directed to indicate in their written submissions if they agree to have the summonses decided on the papers. The Respondent's submissions dated 7 September 2020 are silent on this issue. My preference is that a hearing is scheduled to decide the summonses and the Tribunal notify the parties of the hearing details.
7. The decision on the objection to the summonses was referred to the Tribunal Member for decision in accordance with cl 34 of Procedural Direction 2. As the decision was to be made by a Tribunal member, and not a registrar, a hearing was required unless dispensed with in accordance with s 50 of the NCAT Act.
8. The parties had an opportunity to make submissions as to whether a hearing was required, in compliance with s 50(3)(a) of the NCAT Act, and the appellant stated his preference for a hearing. No reasons were given for that preference. The Tribunal reasons do not, however, disclose whether that submission was taken into account as required by s 50(3)(b), or whether the Tribunal was satisfied that the issues for determination could be adequately determined in the absence of the parties, as required by s 50(2). There was no order dispensing with a hearing, required by s 50(2) of the NCAT Act.
9. In CLD v Children's Guardian [2017] NSWSC 936 Adamson J concluded that a decision of the Tribunal to confirm the decision of the Children's Guardian to cancel the applicant's working with children check clearance under the Child Protection (Working with Children) Act 2012 without first complying with s 50 of the NCAT Act was invalid.
10. In those proceedings the parties had filed evidence and written submissions, and the respondent had indicated it neither consented to nor opposed the relief sought by the applicant. The Tribunal had directed that the matter be determined on the evidence and submissions filed unless it required the applicant to give evidence or the parties to make oral submissions. The applicant stated her position that she wished to be heard orally if the Tribunal was inclined to reject her application, and submitted that there was sufficient material for the Tribunal to resolve the matter on the papers by setting the cancellation aside. The Tribunal listed the matter for an oral hearing, at which it raised two issues being the application of M v M (1988) 166 CLR 69 and whether s 30(1A) of the Child Protection (Working with Children) Act applied. On that occasion the applicant requested an opportunity to make further submissions in the event that the Tribunal intended to dismiss the application or uphold the cancellation of the applicant's clearance. Further written submissions on the two issues were made. The Tribunal confirmed the decision to cancel the clearance.
11. Adamson J held: 17. I am satisfied on the basis of the narrative set out above that the Tribunal failed to comply with s 50 of the CAT Act and accordingly failed to conduct a hearing on the merits of the case when it was required to do so. The Tribunal was entitled to dispense with a hearing only if it had first afforded the parties an opportunity to make submissions about the proposed order; taken such submissions into account; and made an order under s 50(2) of the CAT Act. Although the transcript recorded that the Tribunal proposed to limit the oral hearing to the two matters which it identified as being of concern (the application of M v M and s 30(1A)), the Tribunal did not inform the parties that it intended to dispense with an oral hearing even though it decided to affirm the decision under review. Nor did the Tribunal make an order under s 50(2) of the CAT Act. The Tribunal's failure to make such an order constituted an error of law, which vitiated its decision. In these circumstances, the decision must be set aside and the matter remitted to the Tribunal. 18. The Tribunal's failure to inform the plaintiff that it proposed to affirm the decision under review and give her an opportunity to address any matters of concern also amounted to a denial of procedural fairness. However, it is not necessary to expand on this ground as the Tribunal's non-compliance with s 50 of the CAT Act is sufficient to vitiate its decision.
12. A decision to dispense with a hearing and determine a matter on the papers under s 50 of the NCAT Act is for the Tribunal, and is not dependent on the consent or otherwise of the parties. The precondition to the making of such an order is first, the obligation imposed by s 50(3) that before an order is made, the parties have an opportunity to make submissions about whether an order dispensing with a hearing should be made, and that any such submissions be taken into account; and secondly, that the Tribunal form a state of satisfaction that "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal". Section 50 does not require that the parties be informed that an order dispensing with a hearing has been made before the Tribunal proceeds to determine the proceedings, although the Appeal Panel notes that that may be done, depending on the management of the particular proceeding.
13. In this matter the Tribunal did not make an order dispensing with a hearing; and it did not give any indication in its reasons that it had considered the appellant's statement in his submissions of 14 September 2020 that his preference was that a hearing be scheduled to decide the summonses. Nor is there any indication that the Tribunal had formed a state of satisfaction that "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal". In that circumstance the Appeal Panel cannot be certain that the Tribunal properly engaged with the question as to whether the matter could be adequately determined without a hearing. The Appeal Panel notes that in contrast to the situation in CLD, the parties had an opportunity to express their views on whether a hearing was required; however applying CLD, the failure to comply with s 50 of the NCAT Act means that the decision is invalid.

Leave to appeal

1. The principles to be applied in considering whether leave should be granted were summarised by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 in the following terms: 34. … there 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.
2. The reference in the final subparagraph is to Collins v Urban [2014] NSWCATAP 17, in which the Appeal Panel discussed the principles relevant to consideration of whether to grant leave under s 80(2)(b) of the NCAT Act on grounds other than any question of law, in relation to any kind of decision of the Tribunal other than an interlocutory decision: 84. The general principles derived from these cases can be summarised as follows: (1)In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2)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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3)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, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
3. The Appeal Panel acknowledges that there is force in the respondent's submission that while there was no formal order to dispense with a hearing, in circumstances where there was an opportunity to make submissions there was no procedural fairness issue, and that matters relating to the issue or the setting aside of a summons are routinely considered without an oral hearing. However, the more fundamental question is whether the Tribunal considered, and reached the required state of satisfaction, that the matter could be adequately determined on the papers.
4. In the absence of a conclusion on that question the Appeal Panel is of the view that there was an error on an issue of principle, and not merely a matter of practice and procedure, which justifies leave to appeal being granted.

New hearing

1. The Appeal Panel informed the parties that leave to appeal was granted, and that it proposed to deal with the internal appeal pursuant to s 80(3) of the NCAT Act by way of a new hearing. The parties agreed to that course. The written submissions put to the Tribunal below were on the Tribunal file 2020/97662, and the Appeal Panel heard further oral submissions on the issue of whether the summonses should be set aside.

Respondent's submissions

1. The respondent submitted that it understood the appellant's position to be that the purposes of the summonses are to assist the Tribunal to identify and asses the public interest considerations in favour of disclosure of the information, being that disclosure may reveal misconduct, negligent, improper or unlawful conduct by police officers; and that that is based on the statement by DS Ferns at [27] and [28(b)] of his affidavit that there are concerns that the appellant may have coached his son in relation to the allegations of abuse. The respondent submitted that the specific content of the DVD had to be considered, and disclosure of that would not reveal any misconduct in the course of the police investigation. To the extent that the information the subject of the access application may include the appellant's personal information, that would also be a public interest consideration in favour of disclosure. However, the respondent submitted that that can be established from the Tribunal's assessment of the information, and neither oral evidence from the officers nor production of the COPS Event E53122954 would be required to assess that public interest in favour of disclosure.
2. As to the COPS Event, the respondent submitted that the content of that document does not reveal misconduct, the appellant is not named in that document, and the interaction recorded in that document is not the assault alleged to have occurred involving the appellant's son which is the subject matter of the access application.
3. The respondent submitted that the appellant had failed to establish that there is a legitimate forensic purpose in requiring the production of the COPS Event. Even if produced, the content of that document would not meet the threshold articulated in Barrett in order to establish misconduct. Neither of Inspector Greene or DSC O'Donnell is named or referred to in that document.
4. The respondent submitted that DSC O'Donnell is an officer who participated in the recorded interview, and to require her to give evidence would present a risk that the "proceedings may be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information" with the potential to make the proceedings more prolix. The GIPA proceedings are not the appropriate forum for the appellant to air grievances he may have in respect of the role of Inspector Greene or DSC O'Donnell in relation to the investigation of the alleged assault against his son and his disagreement with the agency having formed the view that he coached his son.
5. In oral submissions the respondent maintained that the correct test for access under a summons is that stated in Saleam, that the applicant identify a legitimate forensic purpose for which access is sought, and establish that it is "on the cards" that the documents will materially assist their case. The evidence of Inspector Greene and DSC O'Donnell as to the steps they did or did not take in investigating a criminal matter is not relevant to whether information should be withheld under the GIPA Act because of an overriding public interest against disclosure. That evidence would not assist the Tribunal, and so would have no legitimate forensic purpose. The access application is for access to the interview between the police officer and the person alleged to have assaulted the appellant's son, and does not reveal any misconduct alleged by the appellant. The respondent bears the onus of providing evidence as to the public interest considerations against disclosure, and has done that in DS Ferns' evidence.

Appellant's submissions

1. In his written submissions on the summons issue the appellant referred to a number of authorities, including Saleam, and submitted that the test and principles relevant to summonses were clarified by Brereton J in Sharpe v Grobbel [2017] NSWSC 1065 ("Sharpe") at [34], [35], and [39]. The appellant submitted that the objection to the summons is against the provisions of the GIPA Act, and the Police Act 1990 and the Crimes (Domestic and Personal Violence) Act 2007, citing several provisions from each of those Acts. The appellant submitted that evidence from summonses enables the Tribunal to make decisions on the whole of the evidence and assists the just resolution of the issues in dispute; and the two summonses issued do not cause the respondent any injustice. The appellant submitted that the authorities relied on by the respondent, including Lonsdale and Barrett, are distinguishable on the facts, and that the approach suggested in Lonsdale is contrary to the rule in Jones v Dunkel (1959) 101 CLR 298.
2. The appellant submitted that the information in COPS Event goes to show that the partner of the mother of his son engaged in a pattern of abusive behaviour towards various persons including the mother, that he brought the abusive behaviour to the attention of the Police, that the Police concerns that he coached his son contained in their evidence and submissions are not honestly held or have no factual basis, and that the Police concerns are fabricated and a vendetta. The appellant referred to information on the public record relating to improper or unlawful conduct of police officers, and submitted that the respondent's submissions are further attempts to cover up misconduct, and negligent, improper or unlawful conduct.
3. In oral submissions the appellant maintained that Sharpe has "updated" Saleam, and all that is required is that the material produced or evidence provided in cross examination adds to the relevant evidence in the case and provide a good line of inquiry. DS Ferns is relying in his affidavit on what Inspector Greene and DSC O'Donnell have said and the only way to test that is through cross examination. There was a pattern of violence ignored by police.

Discussion and findings

1. The relevant legal principles to be applied in determining what is a legitimate forensic purpose for the issue of a summons were comprehensively summarised by Ward J (Chief Judge in Equity) in Rhinehart v Rhinehart [2018] NSWSC 1102: 43. As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: ... it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will. 44. Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): ... the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise. 45. In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). 46. More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]). 47. Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA). 48. Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition". …
2. As held by her Honour at [47], whether or not the test is stated in terms of whether it is "on the cards" that the documents sought will materially assist on an identified issue, or that the material could "possibly throw light on" an identified issue, what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings.
3. The principles relevant to the issue of a summons are also applicable to consideration of whether a summons should be set aside, as considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54: 37. In CPJ v University of Newcastle [2017] NSWCATAD 35, Deputy President Hennessy LCM explained the circumstances in which a summons may properly be issued and considerations relevant to setting it aside. At [10]-[13] the Deputy President said: 10. It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for "fishing". The author Bernard Cairns describes "fishing" as "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585. 11. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447. 12. In a recent Supreme Court case, Brereton J summarised the principle as being "… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. 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": Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.) Identification of issues in the proceedings 13. To determine whether the summons should be set aside I need to identify the relevant issues in the proceedings…
4. In these proceedings for review of a decision under the GIPA Act the respondent carries the onus of justifying its decision: s 105(1) GIPA Act. In Lonsdale, the Appeal Panel commented that, as a consequence, the respondent agency will choose how to present its case so as to meet that burden. The Appeal Panel continued: 32. It is clear law that no party has property in a witness of fact or in an expert witness (see, e.g., Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384-5 per Lord Denning MR). Allowing the respondent to summons witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency's ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise. 33. It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency's position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix. 34. Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the 'real issues' in proceedings (s 36(1), the guiding principle), and 'are proportionate to the complexity of the subject-matter of the proceedings' (s 36(4)).
5. The Appeal Panel agrees that in proceedings for review under the GIPA Act, where the agency bears the onus, there would ordinarily need to be strong reasons for allowing a summons addressed to a witness who the agency could have called but chose not to call, and there would need to be clarity as to the forensic purpose served by such a step.
6. The appellant is seeking access under the GIPA Act to the DVD and transcript of an electronically recorded interview conducted in March 2014, and the respondent is relying on its contention that there is an overriding public interest against disclosure of that information. In determining the review, the Tribunal is required to: 1. identify the public interest considerations in favour of disclosure of the information; 2. consider whether the information, if released, would give rise to a public interest consideration against disclosure on the grounds that release of the information could reasonably be expected to have any of the effects as contended by the respondent; and 3. determine where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors as permitted by s 55 of the GIPA Act: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19.
7. Based on the reasons given for the requests for the issue of the summonses, the appellant is seeking to have the officers available for cross examination, and to have access to the COPS Event E53122954, in order to respond to the statements by DS Ferns at [27] and [28(b)] of his affidavit that the appellant coached his son, and to establish his allegation that DSC O'Donnell and Inspector Greene engaged in misconduct or negligent, improper or unlawful conduct.
8. The examples of public interest considerations in favour of disclosure of information provided in the Note to s 12 of the GIPA Act include at (e) that disclosure of the information "could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct". In Barrett, the Appeal Panel noted: 136. It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that 'disclosure … could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.' As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. …
9. The issue for the Tribunal on the substantive review is whether there would be a reasonable basis for concluding that the disclosure of the DVD or the transcript could reasonably be expected to reveal conduct of the kind referred to in para (e) of the Note. That analysis depends on consideration of the specific information in dispute.
10. Based on the respondent's submissions, while DSC O'Donnell participated in the recorded interview, Inspector Greene was not involved in the obtaining of the interview. The Tribunal will have access to the DVD and the transcript in order to satisfy itself whether disclosure could reasonably be expected to reveal or substantiate the allegation of misconduct, or any other public interest consideration in favour of disclosure; or have any of the effects identified by the respondent as falling within the public interest considerations against disclosure provided in the Table to s 14 of the GIPA Act. The oral evidence of the officers would not, in the Appeal Panel's view, assist in the task of considering the specific content of the DVD and the transcript. To the extent that cross examination of the officers might shed light on any of the issues relating to investigation of the alleged assault, including the background or the subsequent action undertaken, that would not be relevant to the issue to be determined in the proceedings.
11. Based on the respondent's submissions, the content of the COPS Event E53122954 relates to an interaction between persons not including the appellant, and not the assault alleged to have occurred, and neither of the officers is named or referred to in the COPS Event. In that context, there is no apparent relevance to the issues in the proceedings, and no apparent basis on which production of that document could materially assist in determination of those issues.
12. The appellant has not established that the evidence of either Inspector Greene or DSC O'Donnell would be relevant to the issues requiring resolution in the proceedings. To require either officer to appear to give evidence would extend the hearing time unnecessarily, which would not be consistent with the obligation on the Tribunal under s 36(2) of the NCAT Act to seek to give effect to the guiding principle of facilitating the just, quick and cheap resolution of the real issues in the proceedings. Nor would this be consistent with the requirement in s 36(4) that the practice and procedure of the Tribunal be implemented so as to facilitate the resolution of the issues in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
13. The summonses lack a legitimate forensic purpose. The conclusion of the Tribunal that the summonses should be set aside was correct, and the appropriate course is to dismiss the appeal.

Orders

1. The orders of the Appeal Panel are: 1. Leave to appeal is granted; 2. Appeal to be dealt with by new hearing; 3. Appeal dismissed.

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: 11 March 2021