Melhem v Commissioner of Police, NSW Police Force - [2016] NSWCATAD 279 - NSWCATAD 2016 case summary — Zoe

NSWNSWCATAD

Melhem v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 279

NCAT Administrative and Equal Opportunity|2016-11-08

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2016-11-08

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Overview

The Commissioner of Police has placed a condition on Evan Melhem's firearms licence. The condition relates to his brother, Rousell Melham (also known as Russell Melham). It prevents Evan from possessing or storing firearms at his residence or any residence that is also occupied or may be accessed by his brother. The reason the Commissioner gave for imposing the condition was that: I have reviewed your brother's police records which reveal your brother has a mental health condition and a history of violent behaviour and has been charged with serious offences involving violence and intimidation.
The serious offence with which Russell Melham was charged on 4 April 2014 was "aggravated break and enter and commit serious indictable offence". The charges related to an alleged incident involving his ex-wife, Lorma Gutierrez, and their two children. Evan Melham says that following a 13 day hearing, a jury found Russell not guilty of this offence.
The Commissioner of Police concluded that despite the fact that Evan Melham had held a firearms licence for six years with no criminal convictions, the possibility that Russell may use violence against Evan to access firearms could not be ignored.
Evan Melhem does not accept that there is a risk that his brother would attempt to access his firearms. He has applied to the Tribunal for a review of the decision to impose the condition.
Evan Melhem has issued three summonses to obtain information to support his case. Those summonses were issued to Dr Milch (a single expert witness appointed by an Independent Children's Lawyer in Family Law proceedings involving Russell Melham), MDA National Insurance Pty Ltd (Dr Milch's professional indemnity insurer) and Employers Mutual NSW Limited (Russell Melham's workers compensation insurer). Those entities and the Commissioner of Police have applied to have each of the summonses set aside.
I have concluded that there is no basis on which the summonses should be set aside.

[6]

Restriction on publication of Family Court proceedings

Production of the following three categories of documents was said to be an offence under s 121(1) of the Family Law Act: 1. correspondence between Independent Children's Lawyer and Dr Milch in 2015 and 2016; 2. Dr Milch's reports for the Family Court dated 8 September 2015 and 6 November 2015; and 3. Dr Milch's handwritten interview notes in 2015.
In summary, under s 121(1) of the Family Law Act 1975, it is an offence to publish, broadcast or disseminate to the public, or a section of the public "any account of any proceedings" under the Family Law Act that identifies a party, a witness or a person who is in any way concerned in the matter. The provision, in full, states that: (1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies: (a) a party to the proceedings; (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or (c) a witness in the proceedings; commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
Producing documents under summons is not dissemination of the relevant information to the public or a section of the public. While the public can encompass just one person, generally the communication must have the "aim of reaching a wide audience": Re Edelsten; Ex part Donnelly (1988) 18 FCR 434 at 436, Morling J. Parties to particular proceedings are not members of the public or a section of the public.
The documents produced under summons will only be given to the parties to the proceedings if access to those documents is granted. The Tribunal will not look at any document produced under summons unless a particular document is tendered in evidence by one of the parties. At the hearing the Tribunal will decide whether to admit the document into evidence. Despite not being bound by the rules of evidence, the Tribunal may take into account any objection to the admissibility of that document: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2).
Although no-one raised the issue, it is also arguable that correspondence between the Independent Children's lawyer and Dr Milch, as well as his reports and handwritten interview notes, are not an "account of" the Family Court proceedings. An "account" has been held to be "a narrative, description, retelling, or recital of such proceedings": Hinchcliffe v Commissioner of Police of the Australia Federal Police [2001] FCA 1747 at [53]. Even if those documents are an account of the proceedings, there is an exception in s 121 (9) of the Family Law Act for communications "to persons concerned in proceeding in any court, of any pleading, transcript of evidence or other document for use in connections with those proceedings".
The offence provision in s 121(1) of the Family Law Act is not a basis for setting aside the summons to Dr Milch.
I should emphasise, in case there is any misunderstanding, that under NCAT Procedural Direction 2 entitled "Summonses": 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: NCAT 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].

[8]

Apparent relevance

The test is whether the documents sought under the summons have apparent, as distinct from actual relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447; Portal Software International Ltd v Bodsworth [2005] NSWSC 1115. The principle of apparent relevance has been expressed in various ways including whether the summons has a "legitimate forensic purpose"; "is reasonably likely to add … to the relevant evidence in the case" and whether it appears to be "on the cards" that the document sought will materially assist the requesting party: Becwell Legal Service Pty Ltd v McMaster [2011] FCA 1501 at [25] and [26].
Production of the following categories of documents was said to have no apparent relevance: 1. documents obtained by Employers Mutual from 2013 to 2015; 2. correspondence between Dr Milch and other health professionals regarding Russell Melhem in 2015; 3. correspondence between Dr Milch and lawyers for the parties in the Family Court proceedings in 2015 and 2016.
In my view, the documents are apparently relevant to an issue in dispute. That issue is the extent of the risk, if any, that Russell Melhem would attempt to access Evan's firearms. Dr Milch's professional medical opinions about Russell and his credibility, are both apparently relevant.
The Commissioner of Police submitted that the request for documents under paragraph (ii), (payments and promises of financial benefit . . ) was a 'fishing expedition'. If a summons is sought for the purpose of discovering a case about which the party is presently unaware, it may be set aside on that basis: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250.
Before considering that submission, I note that paragraph (ii) of the summons does not require Dr Milch to produce "documents or things". Rather, it requests "all payments and promises of financial benefits …". Because Evan Melhem was not represented by a lawyer, but by his sister, Prezelia Melhem, as agent, I will assume that Evan Melhem intended to request "any document or thing recording any payment and promises of financial benefits …"
If the summons is read in this way, the request for documents about promises of financial benefits is not, in my view, a fishing expedition. If there is evidence that Dr Milch received any payments or promises, that would be relevant to his credibility. I should emphasise that there is no such evidence before the Tribunal at this stage.

[9]

Oppression

A summons may be oppressive if it is too wide or uncertain: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710. The documents for production must be identified with reasonable particularity: Commissioner for Railway v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ.
Dr Milch submitted that the request for production of communications between Dr Milch and other health professionals regarding Russell Melhem was oppressive. As far as I am aware, the only other health professional mentioned in the summons is Dr Ip. I do not understand the basis for this submission.
The Commissioner also relied on oppression as a ground for setting aside the summons. The request in paragraph (i) was said to be too broad and not limited in time or subject. The Commissioner also said that the reference to 'business records' was vague.
Paragraph (i) of the summons is not well expressed. It contains 98 words. Sentences of more than 20 - 25 words are often difficult to understand. Breaking down the request as best I can, Evan Melham begins by describing the nature of the documents he is requesting: All records of conversation, business records, reports, file notes, emails, faxes, dates and times of phone records/calls, electronic communication including Skype and/or any apple application and/or any Google application and/or any Microsoft application
That description, while unnecessarily wordy, is capable of being understood.
He goes on to identify that the communications must be "between": "… NSW Police, Renee Hudson, Diana Perla, Richard Schonell, Eva Karagiannis, Lorma Gutierrez, Dr Vincent Ip, MDA National, Avant Mutual, Rousell Melhem and any other person with Doctor Anthony Milch and/or employees of Family in Mind and/or any representative of Dr Anthony Milch and/or representative of Family in Mind …"
Evan Melhem cannot, in a summons addressed to Dr Milch, request information in the possession or control of another legal entity. While it is not clear whether Family in Mind is a separate legal entity, only documents in Dr Milch's possession or control can be requested. The summons should be understood in that way.
Next Evan Melhem identifies the subject matter of the communications: "… regarding Rousell Antanios Melhem (Russell Melhem) and Lorma Guiterrez."
The summons is not vague because of the reference to business records. It may not add anything to the other words used but the whole summons cannot be said to be oppressive because of the use of that term.
Dr Milch disclosed that supporting documents sent to him by the Independent Children's lawyer, so that he could prepare a report for the Family Court, had been destroyed in accordance with his usual practice. Evan Melhem did not assert that the documents had not been destroyed but submitted that there is no reason they should have been destroyed. Dr Milch is entitled to destroy documents provided to him by a lawyer after the conclusion of the proceedings. I draw no adverse inference about that practice.

Melhem v Commissioner of Police, NSW Police Force

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Judgment (23 paragraphs)

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Legislation Cited (4)

Cases Cited (6)

Cited By (2)