Gowing Bros Limited v Independent Liquor and Gaming Authority

Submissions

The Respondent in the substantive proceedings appeared by way of its legal representation but made no submissions with respect to the application to which it did not oppose.
The Applicant submitted that, in concluding that documents sought by the Summons were not relevant, the Registrar failed to have regard to how the COPS Entries will be used by the Applicant to interrogate the BOCSAR statistics and the relevance of those statistics to the statutory test which will govern NCAT's decision-making in this proceeding. The Applicant explained that it was intended that such evidence would be used in cross-examination to potentially challenge the BOCSAR statistics and, in turn, the Respondent's reliance on such statistics in the Refusal Decision.
In this respect, the Applicant contended that the use of COPS Entries: 1. to test and contradict evidence from NSW Police in proceedings of this type has precedent: see Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36 at [70]-[94] (Kallin). The Respondent also relied upon Scott-Mackenzie v Independent Liquor and Gaming Authority [2020] NSWCATAD 108 at [78]-[86] (Scott-Mackenzie); and 2. are otherwise likely to contribute to the relevant evidence in the case as to the circumstances and nature of alcohol-related incidents in Port Macquarie which cannot be gleaned from the BOCSAR statistics.
The Applicant further contended that "there is no evidence that compliance with the Summons would be onerous, and the Registrar should not have pre-emptively determined so in refusing leave to issue the summons". In oral submissions, in response to the Tribunal's concerns about whether the Commissioner of Police was the correct party on whom the summons ought to be served (as further discussed below), the Applicant suggested that the preferable course despite these concerns was to have it issued noting that it was always open to a party being summoned to seek to have it set aside.
In support of these contentions, the Applicant relied upon its written and oral submissions as well as the s 58 bundle including Guideline 6 issued by the Respondent entitled "Consideration of social impact under section 48(5) of the Liquor Act 2007".

Consideration

Section 48 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that: 48 Issue of summons (1) A summons for the purposes of this Act may be issued by a registrar - (a) on the application of a party to the proceedings, or (b) at the direction of the Tribunal.
Section 48 provides for the Tribunal to direct the Registrar to issue a summons.
The recent decision of Principal Member Simon in Mahadik v Medical Council of New South Wales [2023] NSWCATOD 96 at [14]-[20] helpfully considered the applicable principles in considering whether the Tribunal should direct the Registrar to issue a summons by reference to the Court of Appeal decision of Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. I set out those parts of the decision in full: The recent decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 related to proceedings in the Land and Environment Court in which a subpoena was issued by Blacktown City Council to the Secretary of the Department of Planning, Industry and Environment. The primary judge refused the Secretary's application to set aside the subpoena. Brereton JA, on appeal, set out some general principles which inform the proper approach to when a subpoena should be set aside (at [88]): "… The first is that the power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process. The second is that, the notion of 'legitimate forensic purpose' being the converse of 'abuse of process', a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining apparently relevant evidence." (citations omitted) The applicant submitted, at hearing, that arguments as to whether the summons is oppressive should be dealt with if the summons is issued and the summonsed party objects. While this case differs in some respects to Secretary of the Department of Planning, Industry and Environment v Blacktown City Council because it deals with whether the Registrar should issue the summons and there is no objection to production from the summonsed parties, the principles stated by Brereton JA are relevant to whether to allow the summons to be issued at all, because that is part of regulating the Tribunal's processes. The Civil and Administrative Tribunal Act 2013 (NSW) requires the Tribunal "to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (s 3(d)), and its practice and procedure "should be implemented so as to facilitate the resolution of the issues between the parties 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" (s 36(4)). The Tribunal is not bound by the rules of evidence (subject to natural justice) and may determine its own procedure (s 38). On that basis, regardless of whether a summonsed party has had an opportunity to object, in the first instance, the Registrar (or the Tribunal considering whether to direct the Registrar) must consider whether to accept the application to issue the summons and whether the summons should be issued. The summons must have a legitimate forensic purpose and be apparently relevant to the proceedings. The summons must not constitute a fishing expedition, be oppressive or an abuse of process. Those are matters which should be considered in deciding whether to allow the issuing of the summons in the first instance. That does not prevent a summonsed party from subsequently objecting to a summons after a Registrar has issued the summons. A summonsed party may raise objections to the summons after the summons is issued, and the Tribunal may then consider those objections when they are raised. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, the Court set out the following principals regarding relevance. Per Bell P (at [65], [69]-[70]): "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. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent. … 69. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is 'not sufficient', and a similar statement in Carroll at 182 that 'mere relevance is not enough' may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: 'must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient.' There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a 'bearing on the issues in the case and may well have evidentiary value', a subpoena seeking such a document or documents will not amount to fishing. 70. Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed." Per Brereton JA (at [89]): "I 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. Moreover, documents will add 'in some way' to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence." (footnotes omitted) It is with those principles in mind that I consider whether to direct the Registrar to issue the summons for which the applicant has applied.
I agree with these observations and for the same reasons identified by Principal Member Simon reject the contention of the Applicant that the ability of a party summoned to subsequently object is to be a consideration in whether leave should be granted. That a party may subsequently seek to have the summons set aside does not impact or limit the Tribunal's consideration as to whether to accept the application to issue the summons and whether the summons should be issued.
In summary and in consideration of the legal principles stated in the above authorities, leave should be granted if a summons: 1. is issued for a legitimate forensic purpose; 2. seeks documents that are apparently relevant; 3. is not an abuse of process in spite of the apparent relevance of the documents that are sought; and 4. the terms of the summons is not unduly vague or the ambit of the subpoena is not such that it would be oppressive or "fishing";
In considering whether the summons seeks documents that are apparently relevant, it is not only the terms of the summons which may be considered but, in appropriate circumstances, the party on whom the summons would be served (the "Intended Recipient"). In circumstances where the terms of the summons assumes that the Intended Recipient has certain knowledge, and this knowledge is necessary for the Intended Recipient to be able to produce relevant material, the absence of any basis to assume or conclude that the Intended Recipient has that knowledge draws into question whether the summons is seeking documents that are relevant. This is most clearly illustrated by considering principles related to expert evidence. Where an expert is asked a question purporting to seek an expert opinion that falls outside of their expertise, the evidence given in response to that question, is irrelevant and inadmissible. The question itself may, by its terms, be seeking information, which is relevant to the proceeding, but it is the lack of knowledge of the witness that determines whether the evidence given has any probative value. In Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28, a psychologist was called to give expert evidence regarding, inter alia, the ability of Mr Murphy to understand the police questioning. Brennan J referred (at [4]) to the following passage in Wigmore on Evidence (Chadbourn, rev. 1979) Vol 2, p 750: "'The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it. … He may be fitted to answer about countless other matters, but that does not justify accepting his views on the matter in hand. ... Since experiential capacity is always relative to the matter in hand, the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not the kind of person.'"
I accept the Applicant's submission that the material upon which the BOCSAR statistics is based is relevant given the Respondent's reliance on the BOCSAR data for the year to December 2022 in the Refusal Decision. I also accept that COPS reports are often relied upon and accepted as evidence to support NSW Police claims about public consumption of alcohol, alcohol-related offences and anti-social behaviour or to challenge those claims. This was the case in Kallin and Scott-Mackenzie relied upon by the Applicant. However, in both of those cases, it was the NSW Police that produced the report or statistics to which the COPS records related. In the case of Kallin, the report was produced by the Eastern Suburbs Police Area Command. In Scott-Mackenzie, the tables providing statistics were prepared by the NSW Police. In those circumstances, the NSW Police would know the methodologies applied and the COPS records considered for the purposes of producing that report and those statistics and if compelled by way of summons to produce the underling material giving rise to the findings in those reports, would be in a position to produce relevant material responding to that summons.
The current circumstances are different. The statistics referred to in the Refusal Decision were produced by BOCSAR. BOCSAR is a statistical and research agency within the Department of Communities and Justice. While BOCSAR has access to the COPS system (along with the NSW Police Force), it is a separate agency from that of the NSW Police Force. As a separate agency, I have no basis to assume that the NSW Police Force has knowledge of the methodologies applied by BOCSAR to identify the COPS Entries utilised by BOCSAR in producing their statistics. There is no evidence which supports that the NSW Police Force has such knowledge and none of the examples relied upon by the Applicant is an example of the NSW Police Force being able to accurately identify COPS entries that pertain to a report or statistics that it did not complete. I am therefore not satisfied that the Summons seeks relevant material.
I am also of the view that to allow the Applicant to serve such a summons would be an abuse of process. In this respect, the Applicant has expressly indicated that the purpose of seeking the COPS entries is to test and challenge the statistics produced by BOCSAR. In the words of the Applicant's Counsel, the information would be used to "interrogate the BOCSAR statistics" and used in cross-examination. Requesting the underlying entries giving rise to those statistics from a separate agency creates a significant risk that the separate agency will adopt a different methodology in identifying the underlying material. Without any basis to find otherwise, the likelihood of that separate agency being able to accurately guess and reproduce the methodologies adopted seems difficult (if not impossible). The result of this would be a very high likelihood that the material produced would not perfectly align with the BOCSAR statistics with the Applicant then relying on this lack of alignment to challenge the statistics produced by BOCSAR. While there would be an artificial attractiveness to that submission, it would be inaccurate given that the COPS entries relied upon to establish the inconsistency were not produced by the same agency who completed the statistics.
In addition to the discussion above, I also find that paragraph 3(a) to (d) of the Subpoena is too wide and is oppressive. It does not identify a "document or thing" for production but describes the purpose for which the Applicant wishes to use the "record" for. It is inappropriate to frame the terms of a summons in that manner because it is ambiguous as to what document or thing is being requested with the obligation on the entity summoned being too onerous.
Accordingly, I refuse the application to direct the Registrar to issue the summons.

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (3)

Cases Cited (6)