Lonsdale v University of Sydney

Scope of the Appeal

1. The appellant's appeal (8 October 2015) seeks to put in issue two matters: the decision of the Tribunal made 14 September 2015; and an alleged failure of the Tribunal to decide an application by the appellant to review the Registrar's decisions of 14 and 17 August 2015 in relation to the first batch of summonses.
2. An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction: NCAT Act, s 32(4).
3. The Tribunal has internal appeal jurisdiction over, relevantly, 'any decision made by the Tribunal in proceedings for ... an administrative review decision' (s 32(1)(a)) and 'any decision made by a registrar of a kind that is declared by the NCAT Act or the procedural rules to be internally appealable' (s 32(1)(b)).
4. The decision in relation to the second batch of summonses: We, therefore, have internal appeal jurisdiction over the decision of the Tribunal made on 14 September 2015, in effect a decision pursuant to s 48(1)(b) of the NCAT Act not to direct the Registrar to issue the second batch of summonses. The Notice of Appeal was filed on 8 October 2015 so the appeal from this decision is within time: see NCAT Rules, r 25(4)(c).
5. The first batch of summonses: The decisions of the Registrar made on 12 and 17 August 2015 under s 48(1)(a) of the NCAT Act are not themselves internally appealable decisions. (This category of decision does not appear in the list of decisions declared to be appealable by NCAT Rules, r 41(1) and (4)).
6. The appellant submitted that the Tribunal failed to consider his application whether to direct the Registrar to issue the first batch of summonses. The reasons and the material held on the Tribunal file, read as a whole, lead us to conclude that the Tribunal only saw itself as seized of the issues relating to the attendance summonses.
7. We do not have a record of the proceedings before the Tribunal. The respondent's counsel informed us that it was a relatively lengthy event. It is not clear whether or not there was an application by the appellant to have a direction made to the Registrar in relation to the first batch of summonses. There is no independent record of the text of any application made by the appellant. It may be that it was done orally. If the Tribunal did have an application before it, as submitted, for the reasons which follow we would reach the same conclusion in relation to the first batch of summonses as we have in relation to the second batch.
8. Information Commissioner Summonses: While the Tribunal's decision in relation to the summons to the Information Commissioner is within the scope of this appeal, the law is that the Commissioner is neither competent nor compellable to give evidence or produce any document in legal proceedings in respect of any information obtained by the Commissioner or a member of staff in the course of the exercise of functions under any Act (including the GIPA Act): see Government Information (Information Commissioner) Act 2009, s 41. That provision disposes of that issue. We will not consider any further the Tribunal's decision(s) as they relate to that summons.

Requirement of Leave

1. An appeal against an internally appealable decision may be made by a party to the proceedings in which the decision is made: NCAT Act, s 80(1). A Tribunal decision in relation to the issue of a summons is an 'interlocutory decision' (NCAT Act, s 4(1)). The Appeal Panel must grant leave for an appeal against an interlocutory decision to proceed: s 80(2)(a). The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 enumerated the main factors relevant to the exercise of a leave discretion of this kind. The list is not, of course, exhaustive.
2. We heard the leave application on 10 November 2015, a few days before the matter was due to continue at first instance. We directed the Tribunal not to close its hearing at first instance until this decision is given. Our hearing traversed both the leave grounds and the substance of the appeal.

The Tribunal's Decision

1. The Tribunal gave an ex tempore decision. Following a request from the appellant it produced its reasons for decision in writing. The full text of the reasons follows (with minor edits of punctuation and spelling): In these proceedings the applicant seeks leave to issue five summonses initially filed 3 September 2015 and rejected by the Divisional Registrar. Those summonses are directed at: Professor Rosanna Taylor; The Information and Privacy Commission; Ms B Hutchinson, Chancellor, University of Sydney; Hills Pet Nutrition Pty Limited by its Proper Officer; and Dr Hugh White from the University of Sydney. I have had regard to the fact that these proceedings relate to an application under the Government Information (Public Access) Act 2009, and the fact that the University, in addition to its legal representation and submissions, will be providing a witness to give evidence, if necessary, in addition to their sworn affidavit, that evidence relating to the application of the applicant's request [sic]. Having regard to those matters, then I cannot see how, having regard to the provisions of Commissioner of Railways v Small (1938) 38 SR (NSW) 564, and the matters referred to in the case of Saleam (R v Saleam (1989) 16 NSWLR 14 (CCA)) that in the context of what there proceedings constitute, those documents would not be relevant and would constitute a fishing expedition and would therefore be an abuse of process. For these reasons and having regard to the submissions of the parties today, I decline leave to issue the summonses.
2. Small is a leading case in New South Wales dealing with the proper scope of summonses to produce documents directed to strangers, i.e. persons who are not parties to the proceedings. Saleam stands for the following propositions: before a summons is issued, 'the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case': at [11] per Simpson J (Spigelman CJ, Studdert J agreeing) in R v Saleam (1989) 16 NSWLR 14.

Submissions

1. The appellant noted that the Tribunal appeared to have proceeded on the misunderstanding that it was dealing with the document summonses (the first batch) as distinct from attendance summonses (the second batch): see the second-last line of the second paragraph of the reasons. In our view it is clear from the first paragraph of the reasons that the Tribunal saw the matter before it as involving only the second batch. The date it gives is the date of the application for those summonses, and the names of the respondents are as they appear in those summonses. Its reference to 'documents' is a mistake.
2. In his notice of appeal and submissions, the appellant makes a number of statements as to the public interest in having known the commercial arrangements that exist between 'junk' per food-makers and the veterinary science arm of the University of Sydney. His submission is that the witnesses he sought to call were 'relevant' to the proceedings in order to examine more closely the respondent's case in support of its decision to refuse documents on commercial-in-confidence and similar grounds.
3. In White v Carlton Tow Bars Pty Ltd [2014] NSWCATAP 36, the Appeal Panel listed these considerations as relevant to the grant of leave to issue summonses: 1. legitimate forensic purpose; 2. identification of the respondent to an attendance summons 'with clarity and precision'; and similarly, 3. identification of the documents in a documents summons with clarity and precision, rather than setting out a series of questions.
4. We agree with the respondent's submissions that to these should be added: (d) the respondent must be both competent and compellable (though this will sometimes be a difficult matter for a registrar to address at that stage of consideration); (e) a summons should not be over-broad and/or oppressive.
5. The respondent also suggested that the lateness of the application for the summons may be a factor that might be taken into account, due to the prejudice that its issuance might cause for the conduct of the other party's case. The respondent noted that in this case the appellant sought the attendance summonses only two weeks before the matter was due to be heard (17 September 2015, since completed 13 November 2015, subject to determination of this appeal). We expect that this would also be a difficult matter to address without submissions from the respondent. It may be that the Registrar might defer such a decision to obtain input from the respondent if that appeared to be a possible concern.
6. The respondent's submissions went on to deal individually with each of the summonses sought in both batches, and made submissions applying the principles to which we have referred, in support of its contention that, on the merits, none of them should be allowed. We will not recount the detail of those submissions here.

Consideration

1. The agency generally carries the onus in GIPA Act proceedings of justifying its decision: s 105(1). It follows, therefore, that the agency will chose how to present its case so as to meet that burden.
2. In our experience, the agency often relies on an affidavit from the desk officer who handles GIPA applications, and a more senior officer. They give evidence as to their view of the competing public considerations, factual matters (for example, whether the document belongs to the category of documents to which the consideration applies, and whether any effect or impact of disclosure to which the consideration refers applies), and finally the basis for their judgment that the public interest considerations against disclosure ought prevail, in the circumstances of the case, over the public interest considerations in favour of disclosure. The agency, in that way, puts forward the evidence it regards as 'relevant' to the determination of the issues before the Tribunal. The review applicant has the opportunity to test this evidence and make submissions. The review applicant similarly may give evidence, and call witnesses with relevant evidence including witnesses who might wish to offer a different view as to where the public interest balance lies.
3. The review jurisdiction of the Tribunal is not strictly adversarial in the way seen, for example, in civil jurisdictions such as consumer claims or home building disputes. The object of the proceedings is to ascertain the 'correct and preferable' administrative decision having regard to 'all relevant factual material' and 'any applicable written or unwritten law': Administrative Decisions Review Act 1997, s 63. To that end, the agency is obliged to furnish to the Tribunal all material in its possession that it considers relevant to the proceedings: s 58. The Tribunal has an active role to play in scrutinising and assessing the documents for which protection is sought, and forming a view as to what might be relevant to its consideration of the matter. It will first decide if the documents are of a kind to which the consideration relied upon by the agency applies. It will then weigh the considerations for and against disclosure, having regard to the leaning position in favour of access (GIPA Act, ss 12, 13). Critical to its consideration will be the evidence relied upon by the agency, and the testing of that evidence by the review applicant. Sometimes there will be little that the review applicant can effectively add to the process, because the applicant (and any witnesses called by the applicant) will not have seen the documents in issue.
4. It is clear law that no party has property in a witness of fact or in an expert witness (see, e.g., Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384-5 per Lord Denning MR). Allowing the respondent to summons witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency's ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise.
5. It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency's position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix.
6. Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the 'real issues' in proceedings (s 36(1), the guiding principle), and 'are proportionate to the complexity of the subject-matter of the proceedings' (s 36(4)).
7. The appellant's submissions refer to the value in relation to the legal professional privilege claim of hearing from the witnesses he wishes to call. All that is required of the agency to satisfy the onus in this regard is to demonstrate that the documents are subject to privilege. There is no need to go on and balance considerations pro and con disclosure. Ordinarily, given the presence of legal expertise in the Tribunal, it is sufficient for the agency to outline its reasons for treating the material as privileged, and for the Tribunal to review the documents. Usually, a finding can safely be made on this subject without more. It is open, of course, to the review applicant to cross-examine the agency's witness on this matter, and to make submissions to the Tribunal as to how the documents are to be characterised (in circumstances where the documents themselves are, necessarily, not able to be seen by the review applicant). As we see it, it would usually be difficult for a review applicant to demonstrate a legitimate forensic purpose for calling as witnesses officers of the agency or others who are connected to the legal advice relationship.
8. Caution should be exercised in granting leave to appeal in relation to interlocutory decisions (see Collins v Urban, factors (1) and (3)). It is not enough that the primary decision maker is arguably wrong.
9. In our view, the Tribunal did not have regard to any wrong principles in reaching the decision it did, and showed understandable caution in not allowing the issuing of summonses of the kind sought. We are not satisfied that the decision is 'arguably wrong'. Even if that were the case, we would not be disposed to grant leave. There are no broader systemic considerations raised by this case that might warrant the grant of leave (see Collins v Urban, factors (2)(a) to (e)).

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: 21 December 2015