Jali Local Aboriginal Land Council v Anderson

The submissions

1. The applicant maintains that the documents sought pursuant to Item 2 are not relevant to any issue in these proceedings. The applicant submits that the only issues in these proceedings are whether: 1. each respondent was absent from two consecutive Board meetings; 2. each respondent received reasonable notice of the Board meetings; 3. each respondent had sought leave from the Board for the absenteeism; 4. the Board had granted leave or excused the respondents from their absenteeism; and 5. the Board had complied with its obligations under s 67(2) of the Act.
2. The applicant therefore submits that Item 2 has no legitimate forensic purpose and highlights further that a summons may not be issued for a mere "fishing expedition".
3. On the other hand, the respondents highlight that other issues arise in these proceedings, including: whether or not the applications should be dismissed on the grounds that it was lodged out of time; and whether an extension of time would be granted (noting the respondents' opposition): NCAT Act, s 41. Further, the respondents propose to seek costs against the applicant on the basis of identified "special circumstances": NCAT Act, ss 60(2) and (3). Those special circumstances include that: 1. Each application was made in the absence of the fundamentally requisite grounds under regulations to the Act requiring notice of at least 7 clear days before a meeting; and also, those pursuant to the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), requiring any application to be made within 28 days from the day on which the applicant became entitled to relief sought. 2. The matter has been on foot since early September 2024, based on events that are alleged to have occurred in March and April 2024. 3. No application for an extension of time had originally been made and as yet has not been granted. 4. The original applications incorrectly stated that they were not filed late and in the case of each of these respondents, did not seek any relief against them. 5. The subsequent applications filed, which seek relief against the particular respondent, nevertheless, did not acknowledge that they were filed out of time. 6. The applicant has not complied with the Tribunal's guiding principle pursuant to s 36(1) of the NCAT Act.
4. This last reference, in particular, is a reference to commencing and pursuing what is submitted to be an unfounded action and wasting significant amounts of the Tribunal's and the respondents' time and resources, making fundamental and repeated errors in relation to the process, making incorrect statements in their applications, and unreasonably objecting to the respondents' use of an agent.
5. The respondents accept that the costs application needs to establish special circumstances and submit that the documents captured by Item 2 go to the existence of special circumstances; and therefore, have a legitimate forensic purpose.
6. As to the issue of costs, the applicant highlights that costs will not be determined before the substantive application; therefore, the documents under Item 2 are not relevant to the substantive issues and Item 2 has no legitimate forensic purpose.
7. The applicant also asserts, without an apparent evidentiary basis, that the materials in answer to Item 2 contain Board determinations which involve a sensitive and confidential forensic financial audit. The disclosure of highly sensitive and confidential materials that may jeopardise a costly investigation and affect the applicant's right to maintain privacy with respect to investigations ought not be allowed where the documents are, at best, only tangentially relevant. Any bearing on substantive issues would be speculative. The applicant cited Sharp & Dalton & Twigg [1990] FamCA 63.

Summons

1. The principles do not seem to be in dispute. Principles for whether to issue a summons (and whether to set aside one), include the following: 1. There must be some legitimate forensic purpose to justify the issuing of a summons. The apparent relevance to the underlying proceedings and the reasonable basis upon which it is said the documents may assist must be identified: see for instance Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown) at [65] and [89]; Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155 at [13]. 2. Particularly where there is a question over the relevance of the documents, the summons must not be too wide. See for instance Buckley v Council of the Law Society of New South Wales [2021] NSWCATOD 197 at [75]. 3. A subpoena (and it follows, a summons) is oppressive when its terms are so wide that the task imposed on a stranger to collect and produce documents (many of which may lack relevance) is onerous: National Employers' Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372 at 382 (Moffit P); Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710 at 719. 4. A summons that seeks a large number of documents of doubtful relevance may be regarded as oppressive: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710. 5. A party is not entitled to a summons for the purpose of "fishing", such as, to ascertain whether they have a case, or to discover the nature of the other side's evidence: Commissioner of Railways v Small (1938) 38 SR (NSW) 564 at 575. As noted in McLaughlin v Dungowan Manly [2009] NSWSC 1501, even where documents are identified with specificity, there must be a basis to suggest documents of that kind exist, to satisfy the legitimate forensic purpose test: at [34]-[35]. 6. A subpoena (and no doubt a summons) not issued for a legitimate forensic purpose is an abuse of process: Blacktown at [88]. 7. The power to set aside a subpoena (and it follows, a summons) for an abuse of process as part of the Court's (and it follows, a Tribunal's) general power to regulate and protect its own processes, is not restricted to defined and closed categories: Health Administration Corp v Toll Global Forwarding Pty Ltd [2024] NSWSC 285 at [83]; and Blacktown at [60]. 8. In Blacktown, the Court identified that it was sufficient to justify a subpoena as having been issued for a legitimate forensic purpose if there is a reasonable basis, beyond speculation, that it is likely that the documents will materially assist on an identified issue: at [65], [80], [89], [98]. It is not necessary to demonstrate that the documents sought would materially assist the issuing party's case: at [21], [86], [90], [96]. The question is whether the documents will add in some way to the relevant evidence; even if to provide a legitimate basis for cross-examination, or if they go to credit, irrespective of admissibility: at [40], [61], [62], [89], [98], [100].

Costs

1. The Tribunal has a limited costs jurisdiction per s 60 of the NCAT Act: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section - costs includes - (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
2. In The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [10]-[15], the Appeal Panel outlined what is required to demonstrate that "special circumstances" warrant an award of costs: "[10] 'Special circumstances' are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107]. [11] However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out. [12] Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances 'warranting an award of costs' - Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]; Youssef at [108]. [13] The exercise of the discretion requires the Tribunal 'to weigh whether those circumstances are sufficient to amount to "special" circumstances that justify departing from the general rule that each party bear their own costs': BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35]. [14] He who asserts must prove, and so the party seeking the costs order bears the onus of proving that special circumstances exist - Styles v Wollondilly Shire Council [2017] NSWCATAP 108 at [5] under the heading 'Costs'. [15] Whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 at [57]; The Owners - Strata Plan 20211 v Rosenthal [2019] NSWCATAP 49 at [15]."

Extension of time

1. Relevantly, s 67 of the Act states: 67 Vacancy in office … (2) A vacancy does not arise under subsection (1)(b) until the Board has - (a) given the member reasonable notice of the Board's intention to consider at a meeting of the Board whether to excuse the member for the absences, and (b) resolved at the meeting not to excuse the member for the absences.
2. Rule 23(3) of the NCAT Rules provides: 23 General applications … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.
3. Section 69 gives the applicant their right to seek declaratory relief. Since the Act does not specify a window to file within, the 28-day period under r 23(3) of the NCAT Rules applies.
4. Nevertheless, the Tribunal may grant an extension of time under s 41 of the NCAT Act, which states: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
5. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson), the Appeal Panel summarised principles relevant for whether to grant an extension of time to lodge a notice of appeal at [18]-[22]. "[18] Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the [NCAT] Act that the guiding principle for the [NCAT] Act 'is to facilitate the just, quick and cheap resolution of the real issue in the proceedings'. [19] An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.' [20] The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. [21] Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. [22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a 'vested right' to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
6. Jackson dealt with the late lodgement of a notice of appeal. Nevertheless, the core principle is to ensure the rules as to time limits do not work an injustice. This extends to an application too: Roberts v Nursing and Midwifery Board of Australia [2017] NSWCATOD 109 at [23]-[24]. Further, in Daoud v Chief Commissioner of State Revenue [2015] NSWCATAD 53 at [14]-[17], the Tribunal identified principles akin to Jackson for whether to extend time to make an application.

Consideration

1. On its face, the Item 2 documents do not go to any issue in the substantive proceedings. The respondents do not suggest otherwise. Item 2 documents are conceivably relevant to the question of an extension of time. The Tribunal notes that under an application for an extension of time, the applicant bears the onus. Factors such as length of delay, reasons for delay and merits of the case are all relevant. However, it is not apparent as to how the Item 2 documents could assist on the issue (for good or ill), as the respondents have not identified the link between the Item 2 documents and the extension of time issue.
2. Regarding the issue of costs, that is an issue to be determined once the ultimate determination is known, but could conceivably be determined as part of the ultimate decision. Accordingly, documents that could materially assist this issue should (absent some other objection), be produced. However, on the face of what is called for, it is not apparent how the Item 2 documents might assist. The forensic purpose has not been sufficiently identified. Whilst the issues surrounding costs, such as the need to demonstrate special circumstances have been sufficiently articulated, the link between the documents and the issues in dispute has not been sufficiently articulated.
3. Insofar as special circumstances are concerned, that issue may be determined on the basis of the documents filed in the substantive proceedings, a chronology of the events, the conduct of the parties, and the Tribunal's own assessment of the evidence and submissions made in relation to the substantive issues and the ultimate conclusion.
4. At this stage, the ability of the Item 2 documents to materially assist, is speculative.
5. Insofar as the applicant relies on prejudice due to concerns about privacy and confidentiality, more would have been required from the applicant to identify the relevant prejudice or other reason as to why the documents, had they appeared likely to assist, should not be produced.
6. The objection to producing documents in Item 2 is upheld. That aspect of the Summons is set aside.

Orders

1. The Tribunal orders: 1. Pursuant to s 50 of the Civil and Administrative Act 2013 (NSW), the Tribunal dispenses with a hearing in relation to setting aside Item 2 of the schedule to the summons addressed to the applicant dated 4 November 2024 (the Summons). 2. Item 2 of the schedule to the Summons is set aside.

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 December 2024