GDT v Owners Corporation

NCAT Administrative and Equal Opportunity|2024-05-28

Background

This decision concerns the summons to produce documents issued by the Tribunal at the request of the respondents directed to Ms Mandy Lian ("Ms Lian"), Residential Property Manager on 19 March 2024 ("the Summons").
By way of background, the respondents made an application for the issuing of three summonses: 1. To TPG Telecom Limited to produce full telephone bills for Ms Lian's mobile number issued by Vodafone between the period 1 December 2022 and 31 March 2023; 2. To Telstra Limited to produce full telephone bills for Ms Lian's mobile number issued by Telstra between the period 1 December 2022 and 31 March 2023; and 3. To Ms Lian to produce: 1. full telephone bills for Ms Lian's mobile number issued by Optus between the period 1 December 2022 and 31 March 2023; and 2. all attachments to the email from Ms Lian to the applicant including supporting documents, dated Monday 27 March 2023 4:12:34PM ("the Attachments").

Directions Hearing on 10 April 2024

The applicants submitted that the three summonses be set aside. The matter was listed for directions on 10 April 2024 before Senior Member Mulvey. The applicants were partly successful in that the Tribunal made orders granting the applicant's request in relation to two of the summonses and set aside the summons issued to TPG Telecom Limited and Telstra Limited. However, the Tribunal denied the request to set aside the Summons (issued to Ms Lian) and provided oral reasons.

Return of Summons on 11 April 2024

During a Return of Summons before Deputy Registrar Fong on 11 April 2024, the applicants submitted that the Tribunal on 10 April 2024 refused the applicant's request to set aside the Summons, because it did not have access to the materials and therefore could not assess the relevance of the materials. The applicants submitted that the Tribunal should have the opportunity to assess the materials produced by Ms Lian to determine whether the materials are relevant to the issues in dispute. Thus, the applicants requested, again, to set aside the Summons and asked the Tribunal to assess the materials sought by the respondents to establish if they were relevant.
The respondents submitted that the applicants' submissions were a 'rehash' of what was said at the directions hearing before SM Mulvey. The respondents submitted that the materials under the scope of the Summons were relevant and that access orders should be made.
Deputy Registrar Fong explained to the parties the purpose of the Return of Summons. The applicants subsequently requested for first access as they believed there were issues in relation to confidentiality. The respondents submitted that the confidentiality was not in issue as the Tribunal had already determined to reject the applicants' request to set aside the Summons.
The Deputy Registrar made the following orders: "The following orders have been made in relation to Court Item: 2598806202300366066001-S-2Mandy Lian, Residential Property Manager: First access to the applicant from 11 April 2024 for a period of 14 days (to 25 April 2024). If no objections are raised, general access to parties thereafter. Legal representatives may uplift documents for a period of 48 hours."
After receiving the documents produced on the Summons, the applicants filed a further application to set aside, exclude or refuse access to the Attachments on 22 April 2024. The applicant was supported by an annexure entitled 'Grounds of Application'.

Interim Hearing on 8 May 2024

The matter was listed for a directions hearing on 8 May 2024 to deal with the applicants' application. Senior Member Dinnen made the following orders: Respondent is to file and serve any submissions in relation to the objections to production by 17 May 2024 Applicants are to file and serve any response to the Respondent's submissions by 24 May 2024 Matter is listed for interim order hearing in relation to the objections to production on Tuesday 28 May 2024 at 2pm. Applicants note that no objection is taken to the documents produced by Mandy Lian in response to "Category A", being phone records, but that these documents have been produced together with the documents over which objections are raised. Please copy these orders and appearances to 2023/00366090, 2023/00366071, 2023/00366095

Documents Produced by Ms Lian

Ms Lian, in response to the Summons, produced the following: 1. A covering letter dated 5 April 2024; 2. Full telephone bills for her number issued by Optus for the period 1 December 2022 and 31 March 2023; 3. Attachment 1 - an email in reply from Ms Lian to the applicants dated 17 November 2022 requesting for photographic evidence of the issue raised by the applicants in relation to laundry taps ("Attachment 1"); 4. Attachment 2 - an email from Ms Lian to the applicants dated 26 April 2022 requesting for identification and contact details ("Attachment 2"); 1. Supporting Documents for Attachment 2: 1. an email from Ms Lian to the applicants dated 27 March 2023, inter alia, requesting for updated contact details ("Supporting Document 1); and 2. attachments of copies of the applicant's and the applicant's daughter's passports with handwritten notes and a post-it note at the back ("Supporting Document 2").

Covering Letter

The covering letter from Ms Lian in response to the Summons communicated some context regarding the Attachments, and information relating to Ms Lian's mobile number. The covering letter stated that the applicants had a change of phone number and that the applicants were not using the number that they had provided to Ms Lian.

Attachment 1

Attachment 1 is an email chain between Ms Lian and the applicants. The applicants raised an issue in relation to laundry taps. In response, Ms Lian sought photographic evidence of the issue and advised that she would submit the maintenance request to the respondent. At page 2 of the email chain is the applicant's contact details, including their full name, address, telephone number and email address.

Attachment 2

Attachment 2 is an email from Ms Lian to the applicants and another addressee to which the applicants contend is another tenant. Ms Lian requested for identification and contact details from the applicants and communicated information in relation to rent.

Supporting Document 1

Supporting Document 1 is another email chain between Ms Lian and the applicants where the applicants have alleged that Mr Ney has been negligent as he has failed to maintain the apartment. Ms Lian requested "solid evidence" to be presented to the respondents and further sought updated contact details from the applicants.

Supporting Document 2

Supporting Document 2 are photocopies of the applicants' passports.
As set out above, the Summons sought an email from Ms Lian to the applicants including supporting documents, dated Monday 27 March 2023 4:12:34PM and all attachments to it. Documents produced in paragraphs 2 to 4 are not in answer to the Summons. There is no email from Ms Lian to the applicant dated Monday 27 March 2023 4:12:34PM.

Legal Principles

The Tribunal controls the issuing of summonses. Section 48 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act") provides that a registrar may on the application of a party to proceedings or at the direction of the Tribunal issue a summons.
The overriding principle in relation to summonses is that the evidence sought to be obtained (be it documentary or testimonial) has apparent, as distinct from actual, relevance to the case. In other words, the information sought needs to be able to "throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35]. Thus, a summons must only be issued for a legitimate forensic purpose: Zonnevylle v Department of Justice [2018] NSWCATAD 96 at [9].
In National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 384 ("Waind"), Moffitt P (with whom Hutley and Glass JJA agreed) said that: If a subpoena for production is properly issued and not set aside, and, if there is ruled to be no valid objection to the production of the documents to the court, then the documents are in the control of the judge, who is invested with jurisdiction to take all steps necessary for the proper trial of the issues before him, subject to the due observance of any relevant rules and procedures of the court. So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case. (emphasis added)
As such, a document or thing does not have to be admissible in evidence before it can be obtained under Summons: Melhem v Commissioner of Police (NSW) [2016] NSWCATAD 279 at [13] citing Waind.
The applicant's application to have a part of the Summons set aside must be considered within the scope of the Tribunal's guiding principle when exercising any power under the CAT Act is to "facilitate the just, quick and cheap resolution of the 'real issues' in proceedings": s 36(1).
In CPJ v The University of Newcastle [2017] NSWCATAD 350 at [8] to [12], Hennessy DP stated that, "The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]".
The Tribunal has published a Procedural Direction regarding Summons: New South Wales Civil and Administrative Tribunal, Procedural Direction 2 - Summonses, 29 April 2021 ("Procedural Direction 2"). Procedural Direction 2 states that a person named in or affected by the Summons may raise objections to the Summons:
Paragraphs 31 to 34 provide as follows: 31. If the person named in the summons objects to complying with the summons or if another person affected by the summons objects to the summons being complied with, they should try to resolve the objection with the party who applied for the summons to be issued before the time for compliance. 32. Common objections are: (a) the summons is oppressive, for example because it is too wide in scope and imposes too great a burden on the person named in the summons; (b) the summons is too vague so that the person named in the summons cannot clearly identify what documents or other things are required to be produced; (c) the evidence, documents or other things are privileged from disclosure, for example because they are confidential communications between a lawyer and a client; (d) the evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings. 33. If the objector is unable to resolve the matter informally, the objector should: (a) before the time for compliance, inform the registrar and the party who applied for the summons of the basis for the objection. This should be done in writing; (b) attend the Tribunal on the date for compliance and be prepared to explain the basis for objection. 34. Objections that cannot be resolved by discussion and agreement will be referred to a Member for decision.
Paragraphs 37 to 40 state: 37. If any person believes there may be grounds for objecting to one or more parties having access to the documents, that person can object to the parties being given access or can ask for 'first access' to the documents in order to check what the documents contain. 38. Grounds for an objection to access or for a first access order include when the documents contain: legal advice which is privileged; medical records; personal information relating to a child; or information that is confidential to a business. 39. If 'first access' is given to a person, that person will be able to look at the documents and decide whether to object to a party or parties having access to some or all of the documents. 40. If the documents or other things are privileged, confidential or should not be disclosed for some other reason, a person with a relevant interest can object to access being given and the Tribunal can restrict or prohibit access to those documents or other things.

Applicants' Submissions

Access to the full telephone bills for her number issued by Optus for the period 1 December 2022 and 31 March 2023 is not objected by the applicants.
The applicants, do however, raise several objections in relation to the Attachments. The objections set out in the application and made in oral submissions can be summarised as: 1. The documents produced by Ms Lian are not relevant to the issues in dispute; 2. Some of the documents produced by Ms Lian are sensitive in nature; and 3. The documents produced by Ms Lian do not respond to the Summons in that they fall outside the scope of the materials sought by the respondent or are non-complaint.
The applicants advanced the submissions that the materials produced by Ms Lian are non-compliant or unresponsive to the Summons because they do not fall under either category of the Summons or are not photocopies of the original documents as they have been marked with hand-written notations and markings. I note that even expert evidence was annexed to the applicants' application as evidence to support the assertion that the hand-written notes at the back of Supporting Document 2 was not made by the applicants but rather by Ms Lian.

Respondents' Submissions

The respondents submitted that they should have general access to all documents produced on the Summons and that they be awarded costs of the application.
The respondents' written and oral submissions can be summarised into the following: 1. The submissions advanced by the applicants are seeking to reagitate an issue that has already been determined by the Tribunal. In other words, the Tribunal has already "tried and tested" the applicants' submissions on 10 April 2024 when it refused the application to set aside the Summons; 2. As was determined by the Tribunal on 10 April 2024, the email from Ms Lian to the applicants dated 27 March 2023 at 4:12:34pm is relevant to the substantive proceedings. It therefore follows that the Attachments to that email are also relevant regardless of whether or not they contain 'sensitive, incomplete, irrelevant material and false statements'. 3. The Attachments are "symbionts in the context of the substantive proceedings".
The respondents in their written submissions dated 5 April 2024 refuted the allegation that Mr Ney failed to exert all efforts within his power and ability to ensure that the maintenance of the apartment was duly conducted and that necessary repairs were promptly attended to when required. The respondents submitted that on or about 28 December 2022, Mr Ney made multiple attempts to gain access to the apartment occupied by the applicants with the intention of facilitating entry for a plumber into the apartment.
It was submitted that despite the multiple attempts to communicate with the applicants and the managing agent which were made through phone calls and text messages, no phone calls were returned nor replies made by the applicants. Thus, the lack of response left Mr Ney and the plumber unable to proceed with the necessary repairs.
The respondents submitted that the Summons serves the purpose of obtaining documentary evidence critical to substantiating the operational status of the applicant's mobile number(s) from 28 December 2022 to 3 January 2023 ("the Relevant Period"). In other words, the Summons has the purpose of directly contesting the assertions made by the applicants that their telephone number(s) were not in service or connected during the Relevant Period.
Furthermore, the respondents contended that the Summons specifically concerns whether Shead Property, through its representative or agents, made contact, with the applicants in the Relevant Period.

Consideration

The substantial claim before the Tribunal is that the respondents victimised the applicants in contravention of s 50 of the Anti-Discrimination Act 1977 (NSW). The facts broadly stated are that the applicants resided as tenants in a strata apartment complex under the auspice of the Owner's Corporation (SP 127989) ("OC"). Mr Ian Ney was the Chairperson of the OC's Executive Committee. The applicants alleged that after complaining about discrimination, the respondents subjected them to victimisation.
The applicants' complaints have been referred to the Tribunal for determination. Relevantly, the period of the complaints, the number of complaints and the types of complaints as set out in the President's Summary of Investigation of Complaint are relevant in determining whether documents produced have a "legitimate forensic purpose".
The applicants have made four complaints to the Anti-Discrimination NSW (ADNSW). Four separate 'President's Summary of Investigation of Complaint' have been made (the Summaries), hence the reason for four substantive proceedings. Some complaints are duplicates across the four proceedings. For convenience, I have set out the allegations made by the applicants against the respondents as noted in the Summaries: In proceedings no. 2023/00366095 and 2023/00366090, it is alleged that: 1. The respondents published information about the complaints lodged with ADNSW for the purpose of adversely influencing the landlord and managing agent, which resulted in the applicants being threatened with eviction unless they withdrew their complaints. 2. The applicants were confronted, intimidated, and mocked by the second respondent in the complex's common area and within hearing of other persons. In proceedings no. 2023/00366071 and 2023/00366066, it is alleged that: 1. The respondents wrongly accused the applicants of bringing shopping trolleys into the building. 2. The respondents complained about the applicants to her leasing Agent and pressured her landlord to evict her. 3. The respondents refused to act on the applicants' request to remove flood water in their garage which resulted in damage to personal property stored in the garage. 4. The respondents denied the applicants to visitor's car park spaces and the car-washing area. 5. The respondents demanded the applicants remove plants from her balcony. 6. The respondents refused to respond to requests for maintenance and repairs. 7. The respondents spread falsehoods about the applicants' personal character and integrity.
The task of the Tribunal is to determine whether the Attachments have a legitimate forensic purpose, and if so, whether such purpose adds to the relevant evidence in the case. In considering whether the documents produced by Ms Lian are relevant to the proceedings, it is appropriate to consider the relevant issues in dispute as set out above.
In the Presidents Summary Report of Investigation of Complaint for proceedings no. 2023/00366066 and 2023/00366071, the applicants alleged that the respondents victimised the applicants by, inter alia, refusing to respond to requests for maintenance and repairs. In their response to the allegations, the respondents asserted that Mr Ney called one of the applicants about the applicants obstructing the Strata Plan's plumber from entering their unit to undertake the repairs.
I consider that the Covering Letter, Attachment 1, Attachment 2 and Supporting Document 1 have an apparent relevance to the case as they go to the issue of communications with the applicants as tenants, their alleged changed mobile phone numbers and the phone numbers they had supplied for the purpose of being contacted. These documents throw light into the fact that the applicants were put on notice to provide updated contact details to Ms Lian to then be provided to the respondents. It is immaterial that the documents are not exactly responsive to the Summons.
It is difficult to see that Supporting Document 2 serves a legitimate forensic purpose. The passports do not provide any contact details with which the respondents can use to confirm that the information that they utilised to contact the applicants during the Relevant Period were correct. I accept the applicants' objection that Supporting Document 2 is not relevant to the issues in the proceedings.
Furthermore, I accept, that the copies of the passports are sensitive in nature. It was submitted by the applicants at the hearing that the nature of these passports could give rise to safety concerns for their family.
Production of documents under a summons is not dissemination of the information to the public or a section of the public. Documents produced under summons will only be available to the parties to the proceedings if access to those documents is granted. Documents produced under a summons will only become part of the evidence in the proceedings if tendered in evidence by one of the parties and admitted into evidence at the hearing: Unified Security Group (Australia) Pty Ltd v Commissioner of Police (NSW) [2021] NSWCATOD 227.
I should emphasise, in case there is any lack of understanding, that at paragraph 41 of Procedural Direction 2: "Documents and other things obtained under a summons must only be used for purposes directly connected with the proceedings. Using the documents or other things for any other purpose or publishing their contents for any other purpose, may constitute contempt of the Tribunal and be punishable by fine or other orders."
In other words, if any party publishes or uses documents obtained under summons for a purpose not connected with the proceedings, that person may be prosecuted for contempt of the Tribunal: CAT Act, s 73. Even apart from this procedural direction, an implied undertaking prevents any material obtained under a summons from being used for a collateral or ulterior purpose: Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487 at [22]-[35].
I note that the applicants contend that the post-it note added to the back of one of the copies of passport is fraudulent. The post-it note refers to the handwritten notes and states that such notes were written by the applicants. The applicants refute this and have provided a forensic expert report prepared by John Heath, Forensic Document Examiner (Annexure 1) to assert that such hand-written notes are fraudulent as they were in fact written by Ms Lian.
Given that I find that the copies of the passports serve no legitimate forensic purpose, there is no need to determine whether the hand-written notes at the back of one of the copies of the passport are fraudulent. I find that the respondents should not have access to Supporting Document 2.

Orders

The Tribunal makes the following order: 1. The respondents are to be given general access to all documents produced by Ms Lian on 9 April 2024 in response to the Summons issued on 19 March 2024 apart from Supporting Document 2.

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: 20 June 2024

Civil and Administrative Tribunal Rules 2013(NSW)

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