In this matter, Ms Kellie Darley (the applicant) lodged an application for administrative review with the Tribunal, seeking administrative review of a decision made by the City of Parramatta (the respondent) in respect of an application for access to information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) (the GIPA request).
The application for administrative review is made under s 100(1) of the GIPA Act, which provides that a person aggrieved by a reviewable decision of an agency made under the GIPA Act may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
The current application arises out of a decision made by the respondent to approve the payment of monies, in the nature of sponsorship, of the Parramatta Eels Football Club. As this is an interlocutory decision, I have not set out an extensive history of the matter.
[2]
Procedural matters raised by the applicant at the hearing
The matter came before me for hearing on 31 July 2024. Mr J Ryan appeared for the applicant and Mr M Harker of counsel appeared for the respondent.
Mr Ryan advised the Tribunal that there were a number of procedural matters that he wished to raise.
The first such matter involved an application to file and rely upon an affidavit of Anthony Segert, which was provided to the respondent on 30 July 2024.
Mr Harker stated that the relevance of the affidavit to the current matter was unclear and he asked that Mr Ryan clarify its relevance.
In reply, Mr Ryan stated that Mr Segert is a journalist employed by the Sydney Morning Herald and that he made a previous GIPA application to the respondent that sought access to substantially the same information. This application was referred to in evidence and it comments on the public interest in the types of records now sought by the applicant.
Mr Ryan stated that Mr Segert annexed a copy of his article to his affidavit and he reported that the SEO of the respondent stated that this was a contentious application. However, the applicant considers that to be a normal application because the GIPA Act was written to provide a legislative pathway for access to information.
The Tribunal observed that it is now the decision maker by reason of the current external review and asked Mr Ryan how the matters he has described assists it to determine this dispute under the GIPA Act.
Mr Ryan replied to the effect that it shows a pattern of behaviour by the respondent and the significant public interest in the information and it also goes to the applicant's submission that the Tribunal should consider a referral of the respondent under s 111 of the GIPA Act. That referral is sought because Mr Segert's affidavit shows a pattern of behaviour and the issue of referral is raised on the basis as in Taylor v Destination NSW. In the event that the Tribunal is so minded and believes that there is enough of a threshold reached, it can call for further submissions on that issue.
Mr Harker raised a concern, namely that if the applicant wanted to allege systemic issues with the respondent, then she should have done this in her evidence in chief and the respondent could then have responded to it, rather than raising it in submissions shortly prior to the hearing date. The submissions were filed and served after the respondent filed its evidence and there are some serious allegations that need to be properly set out, and they are not properly set out, and they need to be supported by evidence.
The Tribunal noted that the matter was listed for hearing at a case conference on 6 May 2024 and asked Mr Ryan why these matters were not raised before it was listed for hearing. He replied to the effect that the matters were raised in submissions "at the earliest opportunity" and he stated that in the application form there is very little room to identify all of the issues. He then stated that he did raise this issue at the case conference on 6 May 2024.
Mr Ryan then stated to the effect that there is a unique situation in this matter where the Principal Officer of the respondent has a statutory role under the Local Government Act 1993 (NSW) (the LGA) to conduct a balancing test of whether information should be discussed in either an open session of Council or a confidential session of Council.
Mr Harker disputed that this issue was raised at the case conference. The following exchange occurred:
Ryan: We have always raised the issue, particularly in the Case Conference, that the insertion of the most senior officer of the Agency, in this case the CEO, as the primary decision maker short circuits the process available to an applicant for an internal review, which discourages many applicants. The other unique situation is that in this case you have a councillor who by virtue of their elected status, has access to some confidential information, but is unable to share that publicly. The CEO statutorily is required to conduct a balancing test and advise the councillors on where the balance falls and Senior Member, if you see that when they put themselves in that situation and declare a meeting confidential and therefore the documents to be confidential and all of the conversation under the LGA becomes confidential, then they become the primary decision maker under the GIPA Act.
Tribunal: Isn't that a matter that arises under the LGA?
Ryan: I think it goes to the current review. This is not a complaint under the LGA.
Riordan: It sounds like it to me. OK, so that's what you're doing, you are raising a complaint about the conduct of the CEO of the respondent.
Ryan: With respect, Senior Member, we're not raising a complaint about the conduct of the CEO. If we were to do that, there is a process for doing that. What we're raising is a matter of policy.
Riordan: Under the LGA.
Ryan: We're raising that for the Tribunal and we think that under s 111, the Tribunal can look into matters that it believes impacts on the administration of the Act.
Riordan: The Tribunal has a discretion to take certain actions following the completion of an administrative review, and I wrote a decision on that at some length from the matter of Joseph v Kiama City Council [1] and that was upheld by the Appeal Panel. But that was a case in which all of the issues had been ventilated from the outset, and all the evidence had been put on from the outset and the issue was not merely raised in submissions after a case conference and shortly prior to the hearing.
Mr Ryan then stated that the second preliminary matter that he wished to raise is that the applicant is seeking a further hearing and a fresh decision from the Council following the evidence which was filed by the Council from Miss Roya Hazardi.
The Tribunal noted that this could only happen if it decided that the appropriate course of action was to remit the matter to the respondent for reconsideration. I asked Mr Ryan whether the applicant was arguing that the Tribunal should not conduct an administrative review? The following exchange occurred:
Ryan: I'm suggesting that the evidence that we were served last week only last week, which clearly demonstrates a very wide disparity and recollection between the applicant and Miss Roya Hazardi, who at the time was assessing the application, demonstrates that Councillor Darley gave instructions and gave consent that she didn't want certain records under a misunderstanding, a complete misunderstanding.
Riordan: Well, again, why is that not a matter for the evidence to be tested in an administrative review by this Tribunal?
Ryan: Yes, we're happy to test the evidence. We say that the evidence should lead to consideration by yourself of whether a fresh decision might be required.
We also would like to make application for a summons to call the CEO, Miss Gail Connolly. She is the CEO of the respondent.
Riordan: Why was this not done earlier?
Ryan: We made an application to the Registry and you will see the Registry declined the application. We made the application to the Registry after the Council refused to call Miss Connolly.
Riordan: The Council doesn't have to call the decision maker and you issued the application to summons the CEO of the Respondent three days before the hearing date.
Ryan: We had previously asked the Council that we wished her to be called.
Riordan: They are under no obligation to do so, as that person is not a witness in their case. And this matter was listed for case conference in May. You had plenty of time to take steps to call her in the applicant's case. I'm not surprised that the Registry dismissed the application so close to the hearing date.
Ryan: I am surprised that the respondent Council did not agree to the calling of Miss Connolly because she is the primary decision maker.
Riordan: It does not matter who the primary decision making is in the matter, as it is now before me for external review. If the primary decision maker is not called as a witness in the respondent's case, I can't compel them to call her. There is, however, a risk of a Jones v Dunkel [2] inference being drawn if she is not called.
Harker: Right.
Riordan: She's not a witness. I can't compel her and if you wished to compel her attendance you have had since the matter was listed for hearing on the 6 May to take those steps. This is all a bit late in the day.
Ryan: Now I understand what you're saying. The other thing that I wish to raise...
Riordan: Just let me finish. If you are instructed that you do wish to call the CEO, the matter will have to go over with further directions about the exchange of evidence, because I'm not going to let people be called willy-nilly. I have made that position very clear in other cases.
Ryan: I raised that deliberately on the segue of the affidavit and issues of procedural fairness, because I am instructed to call Ms Connolly and a preference would be to be part-heard and that would give time for the examination and consideration of the affidavit that you're seeing.
Riordan: So apart from the s 111 application, with respect to which I understand that the applicant feels aggrieved, with respect to the administrative review that I'm required to conduct here today, what does the applicant say the issues are?
Can we identify and narrow the issues? It's not the first time a matter between the parties has been before me.
Ryan: I believe that matter was for different records.
Riordan: The matter was adjourned to allow discussions to be held about whether or not certain emails within the possession of the respondent.
Is there any agreement on the issues or is your client solely focused on the s 111 referral?
Ryan: No, the s 111 matter is raised on a secondary issue because of concerns about process and governance and the requirement of agencies to support the purpose and objectives of the Act. If I may so try and say so in a very short space of time, my client has made it really clear and I think the respondent understands that as of their written submissions given last night, that Councillor Darley does not seek commercial-in-confidence information. She seeks information which goes to the Council's assessment and due diligence, if you like, of recommending that the governing body commit several million dollars to sponsoring the Eels rugby league team.
It's a question of being able to hold up and share with the public an understanding of what process of assessment of this proposal was conducted by the Council. It's not seeking numbers and figures and commercial-in-confidence information about social media reach or television views or so on. It's about the risk management and the risk assessment conducted by the Council.
The submissions made overnight by my friend state that the applicant has made a significant concession in not seeking commercial information, but if you read the application, that is information that the applicant has never sought. commercial-in-confidence information or information which would prejudice the continuing supply. We have pointed out that only about 70 of the 300 pages of documents provided by the respondent concern commercial-in-confidence information.
As for the rest of the information, surely Council conducted a due diligence assessment and that's at the heart of the case, Senior Member. And we would be happy to negotiate on those documents.
Riordan: And that's something that I have to decide in these proceedings. So I don't understand why there is such a focus on calling the CEO who is not a witness in this matter.
Ryan: From our point of view, it is to try and understand the balancing process...
Riordan: I repeat that this is now a matter for me...
Ryan: It might be useful to find out what characteristics the CEO thought were in the public interest.
Riordan: Well, it may very well be in another venue. However, but not for conducting a review under the GIPA Act, where the person we're talking about is not a witness in the case.
I've recently published a decision in Sethi v Department of Communities and Justice [3] where the applicant proceeded at some length to try to compel a number of people who he identified as being primary decision makers to be compelled to give evidence when they were not witnesses in the matter. And I refused that application on the basis that there was no utility in requiring a person who was not a witness to attend the to give evidence in the applicant's case.
Unless there are exceptional circumstances, the fact that this has been done so late in the day does not persuade me that I should make an exception in this case. So to the extent that the applicant is seeking to call the CEO to evidence in the proceedings that are currently before me, the application is rejected.
I will provide written reasons on that within 28 days.
The s 111 application that's been foreshadowed can only be considered by the Tribunal following completion of the administrative review. I made that very clear in the matter of Joseph [4] and no reason has been provided to me today to change that view.
That being the case, what is now the relevance of the affidavit of Mr Segert?
Ryan: The affidavit goes to the public interest in the matter and the extended public interest in the matter.
Riordan: I need to apply the public interest considerations and in favour of and against disclosure and apply the balancing test in this matter and finding out why the CEO made the decision that she did to make the information confidential is not part of that.
Ryan: I believe Senior Member it is needed to produce and to emphasise evidence which we see goes to the public interest, the weight that should be given to the public interest in conducting the balancing test.
Riordan: Any why is this particular affidavit needed in order to do that?
Ryan: That particular affidavit is from a journalist who was writing about these affairs and because we're talking about the functioning of local government, which is the local democracy, there is public interest in the ability of local government to operate transparently and openly and be accountable to the residents within New South Wales, in accordance with the objectives of the Local Government Act.
Riordan: This is this is an opinion of someone who has previously made a GIPA application.
Ryan: it is relevant to the extent that it shows there's systematic, consistent public interest in this issue.
Riordan: I don't think the respondent will dispute whether there is a public interest.
Ryan: The affidavits of Angela Jones, Blaney, seek to downplay the level of importance.
Riordan: OK. I'm asking you about this matter and one issue that you just put to me, which is that there is widespread public interest. Does the respondent dispute that?
Harker: It's nice to speak.
The parties then sought time from the Tribunal to have discussions with a view to identifying and/or narrowing the issues and the Tribunal accommodated that request.
When the hearing resumed, Mr Harker stated that the process was proving a bit more difficult than he had hoped. He said that there are 3 categories of documents that are sought by the applicant, namely:
1. Confidential commercial information in the emails which, we know, are outside of the scope of emails between Council Officers.
2. Some components of those emails do refer to an excerpt of commercial-in-confidence information of the Eels and those parts would necessarily be outside scope of the .
3. Reports in relation to the partnership, and briefing notes given to the councillors.
Mr Harker stated that the respondent is willing to release information in category (2), with redaction of the commercial-in-confidence information of the Eels, and it prepared to reconsider the decision made in relation to the other disputed information. He therefore sought a remittal of the matter to the respondent under s 65 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), to enable further searches to take place once the scope of the GIPA request is defined. Then a new decision would be made.
Mr Ryan then stated that the respondent's proposal had "changed at the last minute" and that the applicant had hoped to have a more-firm commitment to release documents in category (2), being emails between Council Officers, excluding the commercial-in-confidence information, seems to be able to be committed to by the Council, whereas reports provided to the councillors are to be redacted.
Mr Harker stated that there would probably need to be an agreement between the parties first in terms of what the scope of category (2) is, but Mr Ryan stated that that the applicant does not believe that there is any confusion about the scope. He stated: "We believe the scope is what documents exist regarding the Council's assessment of the proposal in a governance sense?"
After further exchanges between the Tribunal and the parties, the Tribunal made orders adjourning the hearing, remitting the matter to the respondent for reconsideration with a timetable in place, and listing the matter for a further directions hearing on 9 September 2024.
The Tribunal ordered the respondent to disclose to the applicant emails between Council officers, received or sent by Shannon Kliendiest, between 1st February 2023 and 15th December 2023, which have been identified in the notice of decision dated 22nd March 2024 with file reference F2024/00523, subject to the redaction of commercial-in-confidence information of the Parramatta Eels.
[3]
Reasons for decisions made on the procedural matters raised by the applicant
[4]
Application for leave to file an affidavit of Mr Segert and to call him to give evidence at the hearing
The Tribunal noted that the applicant primarily sought to rely upon the evidence of Mr Segert in support of an application under s 111 of the GIPA Act.
Section 111 of the GIPA Act provides:
Referral of systemic issues to Information Commissioner
NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
It is also apparent that the applicant also sought to rely upon Mr Segert's evidence in support of an argument that the CEO of the respondent effectively appointed herself as the primary decision maker in response to the applicant's GIPA request in an attempt to circumvent and/or frustrate the purposes of the GIPA Act.
However, it is also apparent that the applicant sought to rely upon that evidence, and indeed to have a summons to give evidence issued to the CEO of the respondent, in order that she could be questioned about her decision that the disputed information should be discussed in a confidential session of Council rather than in an open session, under s 6(6) of the LGA.
The relief under s 111 of the GIPA Act is discretionary and the exercise of the discretion can only be considered by the Tribunal following the completion of an administrative review.
While Mr Segert's affidavit addresses his own prior GIPA request to the respondent, which Mr Ryan stated sought substantially the same information that the applicant now seeks, and he wrote an article that was published in the media regarding that application, I consider that his affidavit is of limited relevance to the determination of the administrative review that is before me:
The affidavit does not relate to the current administrative review or in any way address the decision that is under review in the current proceedings;
To the extent that the affidavit seeks to provide a sound basis for a finding that there are systemic issues that are impacting the respondent's exercise of its obligations under the GIPA Act, I query how evidence regarding a single prior GIPA request is evidence of systemic issues.
I note that the Macquarie Dictionary defines "systemic" as follows:
adjective 1. of or relating to a system.
2. affecting an organisation, network, economy, etc., as a whole, rather than just individual members or units.
3. (of a herbicide, insecticide, fungicide, etc.) absorbed by a plant or animal and moving through its tissues so that it affects the organism as a whole.
4. Pathology, Physiology
a. relating to or affecting the entire bodily system, or the body as a whole.
b. relating to a particular system of parts or organs of the body.
-systemically, adverb
For the reasons set out previously in this decision, I am not satisfied that Mr Segert's affidavit contains evidence of systemic issues within the respondent.
To the extent that the applicant seeks to rely upon the affidavit in support of her argument regarding the CEO's decision to appoint herself as the primary decision maker, I note that this decision is not a reviewable decision under the GIPA Act.
Section 80 of the GIPA Act provides:
Which decisions are reviewable decisions
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part -
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
Section 100 of the GIPA Act provides, relevantly:
Administrative review of decision by NCAT
(1) A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review)…
A decision by the CEO of the respondent to appoint herself as the primary decision maker with respect to the applicant's GIPA request is not a reviewable decision under s 80 of the GIPA Act. Accordingly, the Tribunal lacks jurisdiction to review that decision.
In relation to the application to issue a summons to give evidence to the CEO of the respondent, I note that Mr Ryan stated that the applicant wishes to ask her questions regarding her decision to have the matter that is the subject of the applicant's GIPA request raised with Councillors in a confidential session of Council rather than in an open session.
I note that the power to decide whether matters are discussed in open or closed sessions of the Council arises under the LGA and that the CEO's decision to discuss the matter regarding which the applicant is aggrieved, is neither a reviewable decision under ss 80 or 100 of the GIPA Act nor a matter with respect to which this Tribunal has jurisdiction.
At this point in time, the CEO of the respondent is not a witness in the respondent's case and she has not filed any evidence that is relied upon by the respondent in the current administrative review proceedings.
In my view, this Tribunal does not have power to compel a party to call a person who is not a witness in their case to give oral evidence in administrative review proceedings.
To the extent that the applicant seeks a review of the Registrar's decision to refuse approve her application to issue a summons to give evidence to the CEO of the respondent, I am satisfied that the Registrar made the correct and preferable decision.
Based upon the submissions made by Mr Ryan at the hearing, there was no legitimate forensic purpose for issuing the summons.
In icare NSW v Webb [5] ; the Appeal Panel considered an application to set aside a summons to give evidence on the basis that there was no legitimate forensic purpose for the person to give evidence under it.
In Webb the Appeal Panel stated, relevantly:
10. On 5 December 2022, Ms Webb applied for a summons to be issued to each of Ms Gibbs-Steele and Ms Tzinberg.
11. On 12 December 2022, the Registrar issued each summons, requiring the attendance of those persons on 18 January 2023, the scheduled hearing of the application.
12. On 12 January 2023, the appellant applied to set aside each summons, primarily on the basis that they lacked a legitimate forensic purpose. That allegation was framed as follows:
The summonses lack a legitimate forensic purpose. The conduct under review in these proceedings is an email chain. The respondent does not dispute the documentary record that is contained in the s. 58 documents, filed in the Tribunal on 17 October 2022. The applicant has not identified any specific evidence that is sought from either prospective witness. The respondent submits that the 'direct and personal knowledge' of the two summonsed icare officers is irrelevant to the issue in dispute and that the dispute may be resolved on the basis of the documentary record. Neither officer has given evidence in these proceedings. The only evidence required to resolve the 'threshold issue' of whether any 'personal information' was disclosed is contained in the affidavit of Sophie Maltabarow affirmed on 28 November 2022, to which the knowledge of the two summonsed icare officers is irrelevant. The two alternative issues to be resolved in the proceedings are questions of law, to which the knowledge of the two icare officers is also irrelevant (see summary of issues at [3] of the Respondent's Submissions filed 28 November 2022). Those questions of law are:
i. whether the applicant expressly consented to the GIPA Application being shared with the Network in the cover letter, such that the respondent was exempted from compliance with s. 18 of the PPIP Act by s.26(2); and
ii. whether any disclosure was lawfully authorised or required and therefore exempt under s. 25 of the PPIP Act, noting that the emails the subject of review were sent for the purpose of consultation, which icare was required to undertake pursuant to s. 54(1) of the Government Information (Public Access) Act 2009 ('the GIPA Act'), and nothing in the PPIP Act affects the operation of the GIPA Act: s.5, PPIP Act
13. In a decision dated 17 March 2023, the Tribunal declined to set aside each s3mmons. The Tribunal adopted the summary of principle in CPJ v University of Newcastle [2017] NSWCATAD 350 at [8] - [12]. At [27] - [30], the Tribunal found:
27 The Tribunal's initial task is to identify the issues in dispute so it can then determine, in the light of those issues, whether the summonses issued (in this case the Summonses) are for a legitimate forensic purpose.
28 There appears to be significant confusion in the submissions of the Respondent as to whether the Applicant's alleged personal information was 'disclosed' to Ms Gibbs-Steele as the Privacy Officer of the Respondent or as the Chair (or a representative) of NIPPN;
29 After considering and applying the principles referred to above, I find that the scope of the Tribunal's administrative review in this case is whether or not the Conduct of Concern results in the Respondent contravening IPP 11. Based on the material before me, if the Respondent's 'threshold issues' (which are yet to be heard) do not succeed, I am satisfied that an issue in dispute is whether any of the Applicant's relevant personal information was 'disclosed' by Ms Tzinberg of the Respondent to the specified third-party (i.e. NIPPN) via disclosure to its representative, Ms Gibbs-Steele.
30 Based on my finding in [29] above, I am satisfied that the testimony of each of Ms Tzinberg of the Respondent and Ms Gibbs-Steele of NIPPN has apparent relevance to an issue in dispute in these proceedings and will 'throw light on' the issue of whether or not the Applicant's relevant personal information was 'disclosed' to and received by Ms Gibbs-Steele as a representative of NIPPN, a third-party, or to her in her role as the Privacy Officer of the Respondent. Therefore, I am satisfied that each of the Summonses have a legitimate forensic purpose.
14. On 21 March 2023, the appellant renewed its application to set aside the summons directed to Ms Gibbs-Steele only. The application relied, in part, on closed evidence. The appellant did not press a prior allegation that no unlawful disclosure had occurred because Ms Gibbs-Steele already had the information as an employee of the appellant when she received it on behalf of NIPPN. Further, the appellant acknowledged that it did not resist liability by disputing that a "disclosure" of information had occurred.
15. The Tribunal heard the renewed application, and the preliminary question of whether "personal information" had been transmitted to NIPPN, together. That led to the decision which, in part, is the decision that is the subject of this appeal.
The appellant appealed against the summons decision and asserted that the Tribunal failed to identify a legitimate forensic purpose for the summons issued to Ms Gibbs-Steele. As argued, the allegation should perhaps be more clearly stated as being that the Tribunal erred in refusing to set aside the summons where the respondent failed to identify a legitimate forensic purpose for it, but nothing turns on that as the alleged error is clear.
The Appeal Panel stated, relevantly:
A summons should only issue for a legitimate forensic purpose
34. As submitted by the appellant, a summons should be set aside if it lacks a legitimate forensic purpose. The principles were alluded to in the appellant's written submissions, and not put into dispute in the appeal. The forensic onus is on the issuing party to identify a legitimate forensic purpose: see Re Don [2006] NSWSC 1125 at [26(3)]; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown City Council), per Bell P (as His Honour the Chief Justice then was) at [73].
35. The power to set aside a summons is an instance of the Tribunal's power to regulate its processes and intervene in a case of abuse of its processes: Blacktown City Council at [32], [60], 88], [98], [100].
36. In Blacktown City Council (regarding a subpoena for production), Bell P said at [65]:
It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist.
37. In the same decision, Brereton JA said at [89]
l agree with [Bell P], for the reasons given by his Honour, that an issuing party is not required to show that it is 'likely' (or 'on the cards') that the documents sought will materially assist its case, as distinct from that it is 'likely' (or 'on the cards') that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than 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 that they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case…
38. His Honour continued, at [96]:
… it was unnecessary […] to demonstrate that the documents sought to be produced would materially assist [the applicant for a summons'] case, and sufficient to establish that the documents would assist on an identified issue.
39. I see no reason that the same principles are not apposite, with appropriate adjustment, to the issue of a summons to a potential witness to testify in proceedings. A summons to a witness to attend a hearing will not generally be an abuse of process if their evidence is likely to, or it is "on the cards" that it will, in some way, add to the relevant evidence in the case on an identified issue. However, if it can separately be demonstrated that the party issuing the summons "has done so for some improper, illegitimate or ulterior purpose foreign to the litigation", the Tribunal in the exercise of its discretion may still set aside the summons as an abuse of process: Blacktown City Council, per Bell P at [70].
40. Some older authority assists in that regard. In Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 at 385 Mofffitt P referred to "the invasion by the subpoena procedure of the rights of a stranger", in the following terms:
52 The court has power to refuse to admit cross-examination of a witness - even a party-witness - on an affidavit if that would be an abuse of process. In Re Mundell; Fenton v Cumberledge (1883) 48 LT 776 at 778, Pearson J made an order to that effect and referred to Raymond v Tapson (1882) 22 Ch D 430 as an authority in which Sir George Jessel MR and Cotton LJ:
laid it down beyond all dispute that the court has a right to protect Her Majesty's subjects from the practice and process of this court being simply used to torture them, and not for the purposes of justice.
41. See also in this regard, Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 101, per Powell JA and Witness v Marsden & Anor [2000] NSWCA 52.
42. As was said by Bingham J in R v Baines [1908] UKLawRpKQB 159; [1909] 1 KB 258, at page 261:
There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicant occupy [one was Prime Minister, HH Asquith, and the other Home Secretary, H J Gladstone] affords them any privilege. They stand in the same position as any other of His Majesty's subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant… (emphasis added)
43. The nature of the proceedings and the legislative context in which they are conducted is also relevant: Blacktown City Council, per Bell P at [59].
I have considered and applied the above caselaw to the submissions made by Mr Ryan at the hearing on 31 July 2024. Having done so, I am satisfied that there is no legitimate forensic purpose in issuing a summons to the CEO of the respondent to give evidence the applicant's case in the current administrative review proceedings.
Accordingly, to the extent that the applicant sought a review of the Registrar's decision to refuse to issue such a summons prior to the hearing date on 31 July 2024, I am satisfied that the Registrar's decision should be affirmed.
[5]
Endnotes
[2023] NSWCATAD 243
[1959] HCA 8
[2024] NSWCATAD 35
Supra
[2023] NSWCATAP 192
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: 06 September 2024