Turitsyna v Chief Commissioner of State Revenue

Reasons for the decision at first instance

1. The Tribunal at first instance recorded [3] the orders of 12 November 2021 granting the Appellant leave to issue a Summons to the Respondent for the production of a document "referred to as the 'CSO advice'" which was identified as "Attachment 1 - doc 4" within a bundle of documents filed by the Appellant on 4 November 2021. That document appears at pages 145 to 150 of the Appellant's "Memorandum for NSW Civil and Administrative Tribunal" dated 4 November 2021 (Tab 15 Respondent's Appeal Bundle), and was referred to at first instance, and before the Appeal Panel as the "Work Plan".
2. The Tribunal at first instance recorded [4] that the Appellant: "asserted that it was necessary to issue the Summons because the [Appellant] was unable to explain what the administrative reviewable decision was which her application had sought to review, nor could she identify the enabling legislation giving the Tribunal the power to review such a decision (assuming such a decision was identified) until she had been given the opportunity to review the material sought under Summons, being, … a copy of the "CSO advice"."
3. Having identified the Summons which the Appellant sought to issue on 17 November 2021 [5], the Tribunal recorded that "ultimately, the breadth of the terms of the Summons is of little consequence" given the assertions of the Respondent [7] that there was no proper basis for the issue of the Summons in circumstances where the Appellant had not identified a basis upon which the Tribunal had jurisdiction to entertain her application and, further, that the Respondent "did not hold any documents which could be responsive to the Summons with the exception of the Work Plan document accompanying it". The Work Plan document had been made available to the Applicant prior to the hearing on 10 February 2022.
4. The Tribunal recorded [8] that the Appellant disputed the Respondent's response to the Summons. After referring to the submissions of the Respondent, the Tribunal referred to the contention of the Appellant (11] that she "held evidence" that the Respondent had "misrepresented to the Tribunal that he did not have any document to produce in response to the Summons". As with submissions before the Appeal Panel, the submissions before the Tribunal at first instance in the proceedings with which we are concerned ("summons proceedings") were directed in part to the Respondent's pending application for dismissal of the Appellant's application for asserted want of jurisdiction [12] ("dismissal proceedings"). That application remains pending before the Tribunal.
5. The Tribunal referred to the scheduled further hearing of the dismissal proceedings on 10 February 2022. For reasons which do not assume present relevance, the Respondent's dismissal application was not heard or determined on 10 February 2022. On 29 March 2022 the dismissal application was again adjourned, we were informed to a date in July, when the hearing of that application should be concluded.
6. The Tribunal recorded [17] what it perceived to be the summary of the Appellant's contentions in the following terms: 1. That the Chief Commissioner has "changed the basis of his objection to the Summons three times in two weeks", that being evidence of "the Respondent's continuing attempts to cover up the unlawful scheme it has acknowledged to be a fees-for-police-detention fiscal operation from the beginning"; 2. The Commissioner's misrepresentation to the Tribunal was "fourfold". 3. The "metadata of the records requested have also been withheld, though they are material to establishing the legal relationship on which the Chief Commissioner's objection is based". 4. On 11 November 2021 the Appellant had "received advice from the Chief Commissioner's agency, Revenue NSW" to the effect that "Revenue NSW (being the Chief Commissioner's agency) does not hold a record of the CSO advice mentioned in document 4, this advice may have been provided to another agency". 5. On 12 November 2021 the Appellant had received advice from GIPA-DCS (defined in earlier submissions as the Government Information (Public Access) (GIPA) Act 2009 Department of Consumer Services) stating that "Revenue NSW holds a copy of document 4 [Work Plan] which was released as part of your GIPA decision. However document 4 was not created by Revenue NSW and Revenue does not hold a copy of the CSO advice referred to it in item 8". 6. The significance of the above advice was that "legal professional privilege could not be asserted by the Respondent over this advice". 7. As the Crown Solicitor's Office gave the "CSO advice" and the Crown Solicitor acts for the Respondent in these proceedings, the Crown Solicitor's Office must hold a copy of the advice and must have provided it to the Chief Commissioner. 8. There appear to have been a number of versions prepared of the Work Plan document and the history of various Government announcements. 9. The Respondent's representative was "lying about privilege or the documents", and "if the Chief Commissioner was telling the truth in claiming no record responding to the Summons exists, the Tribunal may summarily rule that this is an admission by the Respondent of multiple violations of the State Debt Recovery Act over which the Tribunal has jurisdiction. Ergo, the Respondent's s 55 dismissal application fails and should be dismissed immediately".
7. The Tribunal made findings with respect to each of the Appellant's contentions. The Tribunal accepted [18(1)] that the Respondent could "change the basis of his objection to the Summons" and that making an objection to the Summons did not amount to "evidence of a cover up of the scheme, unlawful or otherwise" and, in any event, there was "no evidence that the Respondent materially changed the basis for his objection".
8. The Tribunal recorded [18(2)] that an allegation of deliberate misrepresentation was in substance "an allegation of fraudulent conduct" a finding of which ought not be "lightly made". For the reasons which it recorded, the Tribunal was not satisfied that the material relied upon by the Appellant supported her contention that the Respondent had misrepresented to the Tribunal that he did not hold a copy of the CSO advice.
9. The Tribunal further found [18(3)] that "metadata may indeed establish a legal relationship between the Chief Commissioner and the Crown Solicitor" but that it was unnecessary to establish such relationship as the Crown Solicitor acted for the Chief Commissioner in the proceedings before the Tribunal, that being a matter which was neither controversial nor relevant to the matter requiring determination.
10. The Tribunal further recorded [18(4)] that its understanding of the basis of the Respondent's objection to the Summons to be that it "does not hold any material, aside from the Work Plan, which answers the request". That stance was found to have been consistently maintained by the Respondent throughout the proceedings.
11. The Tribunal found [18(5)] that there was "no factual or legal basis upon which the Appellant could successfully assert that, as the Crown Solicitor's Office gave the "CSO advice", the advice was in fact given to the Chief Commissioner, nor was there any basis in fact which demonstrated that the Crown Solicitor must have produced a copy of that advice to the Chief Commissioner.
12. The Tribunal also found [18(6)] that the fact that the Work Plan "bears a version date" was not to the point in view of the limit of the Summons.
13. Finally, the Tribunal recorded that the Appellant's final submission went to the "heart of her complaint; the [Appellant] does not accept the asserted fact of [sic] does not hold a copy of the "CSO advice" and that, contrary to the submission of the Appellant, the Respondent "does not deny the existence of the CSO advice", merely that such material is not in his possession or control".
14. The Tribunal referred briefly [19] to the pending dismissal application which would be "the subject of consideration at a later time". We apprehend that "later time" to be in July of this year.

The appeal

1. In her Notice of Appeal, the Appellant articulated "grounds of appeal" and sought a grant of leave to appeal other than on questions of law. By his Reply, the Respondent asserted that, the decision of the Tribunal at first instance being "interlocutory", the Appellant required a grant of leave to appeal pursuant to s80(2)(a) of the CAT Act. We note that leave had been given by the Appeal Panel (constituted by Principal Member Suthers) on 13 April 2022 for the Appellant to be represented by( Prof) J Helmer.
2. The Appellant's representative was prepared to engage with that issue. The Appellant asserted that the decision under challenge being an ancillary decision pursuant to s4 of the CAT Act, a grant of leave was not required.
3. Consistent with authority, and in the interests of the efficient use of hearing time in an appeal in which the Appellant is not legally represented, the Appeal Panel indicated that, in the event that appellate intervention was enlivened on a question of law, or on other grounds, to the extent that leave to appeal was required pursuant to s 80(2)(a) of the CAT Act, such leave would be granted. If the Appellant's grounds of appeal and application for leave to appeal other than on questions of law were found to lack merit, then there would be no utility in granting leave to appeal if the decision under challenge was interlocutory and leave would be refused. Without resiling from his primary position, which finds considerable support in the authorities (Reid & Robinson Builders Pty Ltd trading as John Robertson Elite Constructions v Cleal [2021] NSWCATAP 348, at [38] to [48]) the Respondent did not oppose that approach. In view of our conclusions with respect to the Appellant's challenges to the decision at first instance, neither party has been disadvantaged by our approach to this issue.
4. We thus do not need to engage with the submissions of the Appellant of 5 May 2022.
5. The Appellant's representative informed the Appeal Panel that he did not require any exposition of the principles governing the appeal or the application for leave to appeal pursuant to s 80(2)(b) of the CAT Act. In those circumstances we need simply record that the non-exclusive list of "questions of law" articulated in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13] has informed our determination of the Appellant's grounds of appeal in reliance upon asserted questions of law.
6. So far as the Appellant's application for leave to appeal on other grounds is concerned, our determination of those challenges have been informed by the decision in Ros v Commissioner of Police [2020] NSWCATAP 70 at [22]-[23].
7. In her Notice of Appeal under the heading "Grounds for Appeal", the Appellant set out 8 paragraphs of allegations in support of her denial of natural justice ground. If established, a denial of natural justice or procedural fairness would raise a question of law.
8. Having read the transcript of the hearing on 10 February 2022, we are not persuaded that the Appellant was prevented from advancing any submissions which could reasonably have been made, or presenting any evidence which could have impacted upon the determination of the quite limited issue with which the Tribunal was then concerned.
9. Perhaps most significantly for our purposes, nowhere in the very extensive, and cogently argued material relied upon by the Appellant, is there any identification of what the Appellant, through her representative, wished to, but was not allowed to advance during the hearing at first instance, or identification of any document or other evidence which the Appellant was assertedly precluded from relying upon at first instance.
10. A further reason for our conclusion with respect to this challenge is that the Appellant did not seek to rely upon any evidence on the hearing of her appeal which she asserted she had been prevented from presenting at first instance. Nor, with respect to the Appellant's representative, do we apprehend that, in substance, the submissions of the Appellant on appeal were other than essentially a reiteration of the matters which were advanced at first instance.
11. We are not persuaded that the Tribunal at first instance denied the Appellant natural justice or procedural fairness.
12. In her "Memorandum for NSW Civil and Administrative Tribunal" dated 10 April 2022, under the heading "New Ground of Appeal", the Appellant reiterated in detail her complaints about the hearing at first instance. With respect to the submissions of the Appellant's representative, nothing there raised establishes that the decision of the Tribunal at first instance is rendered erroneous by any of the matters upon which the Appellant relies. As we have earlier recorded, the delay in publishing the reasons for the decision of the Tribunal at first instance was not inordinate, or advances any complaint, irrespective of whether it purportedly raises a question of law.
13. By his written submissions of 23 May 2022, the Respondent asserted, inter alia, that the Tribunal did not "err in determining the question before it" for the reasons there advanced (47-55). The Respondent submitted (51) that: "The Tribunal gave the Appellant ample opportunity at the hearing on 10 February 2022 to make good her contention that the Respondent had made a false statement to the Tribunal and that she could prove that the CSO advice was held by the Respondent. She was not able to do so. Nor, on further and subsequent consideration of all materials provided by the parties, was the Tribunal able to identify anything in the material that could possibly support the contention made that the Respondent had misrepresented to the Tribunal that he did not hold a copy of the advice."
14. The Respondent also relied on the reasons of the Tribunal at [18(4)] the terms of which we have earlier recorded. The Respondent ultimately submitted (53) that the Appellant had not identified any error of law in the Tribunal's approach to the issues to be determined or that there was any "error apparent" in the Tribunal's reasons.
15. Under the heading "Veracity of Respondent's Summons Claim" (4.2) the Appellant asserted that the submissions of the Respondent failed to "address" the asserted "governing test" of the "weight of evidence". Although not so articulated, we understand this complaint to assert that the "weight" of evidence before the Tribunal at first instance obliged it to find that the Respondent had the CSO advice in his possession. Provided that the evidence of the Respondent was not shown to be untrue, or otherwise unreliable, it was open to the Tribunal to accept it. The Appellant bears the onus of establishing that the Tribunal erred by accepting the Respondent's denial that he had the CSO advice in his possession. For the reasons which follow, we are not persuaded that the Tribunal thus erred.
16. Although not specifically so framed by the Appeal, whether as a question of law, or on other grounds, the issue at first instance, and before the Appeal Panel, has been whether the finding of the Tribunal that the Respondent did not have in its possession, and thus could not be required to produce a copy of the CSO advice was "wrong" (Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, at [304]), or, to the extent that the Appellant may assert that the finding at first instance was based on the credibility of the Respondent "palpably wrong or clearly incompatible with objectively established facts" (Di Pietro v Hamilton (unreported), NSW Court of Appeal, 6 September 1990).
17. Under the heading "The Reasonableness of Search Test Applies" the Appellant disputed that the Respondent's claim that it did not have in its possession the CSO advice was "false in fact" and reiterated that "this has been demonstrated from the evidence visible in the document itself". The Appellant further submitted that the Respondent had failed to discharge its obligation to make appropriate searches for the CSO advice and that, in the circumstances, it could not be held that it had made reasonable attempts to locate the document. To successfully agitate this complaint, the Appellant must establish the Tribunal erred by accepting the evidence of the Respondent with respect to this issue in either of the ways which we have identified.
18. We have considered the decision in Taylor v Office of Destination NSW [2018] NSWCATAD 195 upon which the Appellant relied, and decision of the Appeal Panel in Destination NSW v Taylor [2019] NSWCATAP 123. The Appeal Panel did not disagree with the summary of principles governing the reasonableness of searches by agencies for requested documents articulated by the Tribunal at first instance, at [12] to [14]. We accept that those principles provide: 1. where an applicant for access to information asserts that searches for information responding to an application have not been reasonable, the Tribunal must first ask whether there are reasonable grounds for believing that the requested information exists and is information of the agency, and, if satisfied of those matters, ask itself whether the agency's efforts to locate the information have been reasonable in the circumstances of the case; 2. the applicant for disclosure bears the onus of demonstrating reasonable grounds for believing that information falling within the scope of the access request exists that has not been supplied. The onus requires the applicant to put some "credible material or submission before the Tribunal that documents of the requested kind exist", and is not satisfied by "an assertion of non-compliance based on a general distrust of the agency in question"; 3. the respondent bears the onus of satisfying the Tribunal that its searches were "reasonable in the circumstances", relevant to that onus being "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant".
19. The Appellant's Notice of Appeal did not expressly challenge the decision at first instance on the basis that the Tribunal erred in principle in its approach to the issue which it was required to decide. Nor did the Appellant's outline of submissions of 10 April 2022, or her representative's email of 3 May 2022. In her responding submissions of 29 May 2022 (paragraph 5) the Appellant submitted that Tribunal at first instance erred in failing to find that the Respondent had not discharged its onus pursuant to the "reasonableness of search test".
20. The Reasons for the decision of the Tribunal at first instance do not specifically engage with the reasonableness of the respondent's attempts to locate the information requested by the Appellant. It was not obliged to do so, because it did not find that the Respondent had the information sought, as Taylor makes clear. Unless the Appellant demonstrates that the Tribunal erred by refusing to find that there were reasonable grounds for believing that the Respondent was in possession of the requested information, challenges based on asserted errors with respect to the reasonableness of the Respondent's efforts to find that information cannot succeed.
21. In oral submissions, the Appellant's representative asserted that it was "impossible" that the CSO advice did not exist. We do not understand the respondent to assert, or the Tribunal at first instance to have found, that CSO advice did not exist. The issue was whether it was in the possession of the Respondent. Beyond reiterating that assertion, the Appellant did not refer the Tribunal to any evidence in support of her contentions, or, with respect to her representative, do more than reiterate the substance of her case at first instance.
22. In reliance upon the heading "Version 12/7/2020" on the Work Plan, the Appellant submitted that there "must be earlier and later versions" of the Work Plan and other documents referable to the Summons. The Appellant submitted that the question of "how it was delivered" had never been addressed, referring to "missing" emails and "metadata" suggesting that there must have been an "invitation" an "agenda" and "other documents attached" to any email preceding or following upon the Work Plan. No evidence to which we have been referred provides support for any of those contentions with respect to the Respondent. Even if, as may be the case, such documents exist, that does not advance the Appellant's challenges to the crucial finding at first instance with respect to the CSO advice being in the Respondent's possession.
23. The Appellant's representative further submitted that there "had to be a record" of the "telecon" with respect to the Version 12/7/2020 Work Plan. Even if that were so, which is not established by any evidence to which we have referred, that would not enhance the probability that the Respondent had the CSO advice in his possession.
24. We agree with the findings of the Tribunal at first instance at [18(2)] with respect to whether the Respondent "held" a copy of the CSO advice. Nothing to which we have been referred, or discovered for ourselves, establishes that refusing to find that the "Respondent has misrepresented to the Tribunal that he did not hold a copy of the (CSO) advice" was erroneous, or other than reasonably open to the Tribunal at first instance. None of the material or collateral findings of fact recorded by the Tribunal in other parts of its Reasons, at [18] has been shown to have been erroneous in any way recognised by the law, or to establish that the finding at [18(2)] was erroneous.
25. The undisturbed findings of fact to which we have referred obviated the need for the Tribunal at first instance to go beyond the first step identified in Taylor. The Appellant's complaints in reliance upon the "reasonableness of search test" accordingly fail.
26. The Appellant referred to a number of statutes, none of which can advance her appeal.
27. We are not persuaded that anything to which the Appellant has referred us, either in evidence filed in the proceedings at first instance, submissions filed in the appeal or in the proceedings at first instance which are contained in the Respondent's Appeal Bundle and replicated in the bundle of documents relied upon by the Appellant enlivens appellate intervention on a question of law.

Leave to appeal

1. In her Notice of Appeal, under the heading "Reasons for Grant of Leave to Appeal" the Appellant set out a number of the relevant principles and asserted that, in the ways there identified, the basis for a grant of leave to appeal was established.
2. Although our reasons for rejecting the substance of the Appellant's complaints with respect to asserted errors involving questions of law apply to the Appellant's application for leave to appeal on grounds not involving such asserted errors, it is appropriate that we record our reasons for refusing leave to appeal.
3. We do not perceive for present purposes that any issues of principle are raised, or that issues of public administration or policy with general application are raised in this appeal. The appeal involves a series of challenges to the findings of fact at first instance. The law governing such challenges has been long settled, and is not in doubt.
4. If leave to appeal is to be granted in this case, it would need to be on the basis that the Appellant demonstrated an injustice which was reasonably clear, and going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand or a factual error that was unreasonably arrived at and clearly mistaken or the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed (Ros at [23]).
5. That the Appellant does not agree with the decision of the Tribunal at first instance does not provide a basis for granting leave to appeal on any of the foregoing grounds. Nothing to which we have been referred by the Appellant persuades us that the decision of the Tribunal at first instance occasioned an injustice to the Appellant according to law. Nor do we accept that the Appellant has demonstrated error or, with respect to the submissions on her behalf, raised an arguable challenge to the Tribunal's decision.
6. The only "factual error" asserted by the Appellant is that the Tribunal had unreasonably and clearly mistakenly found that the Respondent did not have in its possession the CSO advice. Other than asserting and reasserting that claim, and making a series of assumptions for which there is no evidentiary foundation, the Appellant has not established a basis for granting leave to appeal.
7. The Appellant's natural justice complaints and otherwise, assert that the Tribunal at first instance went about the fact finding process in such an unorthodox manner, or in such a way that it was likely to produce an unfair result, and thus be in the best interests of justice for the decision to be reviewed. Nothing to which we have been referred establishes that the Tribunal at first instance approached its evaluative task in other than an orthodox manner. For these, and the reasons we have earlier recorded, we are not persuaded that the Tribunal's determination of the proceedings was infected with procedural or other errors.
8. Although the Appellant does not see it this way, in substance, the issue which required determination at first instance in these proceedings was whether the response of a recipient to a Summons, that it did not have in its possession the document referred to in the Summons, should be rejected. Nothing to which we have been referred demonstrates that the Tribunal failed to proper, genuine and realistic consideration (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, at [9]) to the evidence before it and the closely reasoned submissions of the Appellant at first instance. For these reasons we are not persuaded that any basis for a grant of leave to appeal has been established.

The Respondent's challenge to the jurisdiction to issue the summons

1. In its submissions in reply of 23 May 2022 the Respondent advanced (58-72) a number of submissions in support of his contention that the Tribunal at first instance did not have jurisdiction to issue the Summons to the Respondent which gave rise to the decision of the Tribunal of 10 February 2022.
2. Given that the Tribunal at first instance dismissed the Appellant's objection to the Respondent's response to the Summons, and no part of the Summons remains extant, it is unnecessary to determine that issue, the crux of which is that, unless and until the Tribunal is found to have jurisdiction to determine the Appellant's application to review its decision, there was no power in the Tribunal to issue the Summons.
3. For the reasons which follow, with respect to the submissions of the Respondent in support of its contention that the Appeal Panel may determine that the Applicant's application was "misconceived and should be dismissed" (73-75), it is undesirable that we consider those matters.
4. As is not in doubt, the proceedings currently before the Appeal Panel relate to a Summons for the production of documents. Absent compelling reasons for doing so, it would not be proper, particularly where the Appellant is not legally represented, to determine that issue. A further, and compelling reason for not doing so, is that the Tribunal is seized of the issue, part-heard in its determination, and will resume the hearing of that application in July this year. It would in those circumstances be improper in our view for us to attempt to pre-empt the decision of the Tribunal with respect to that issue.
5. A further, and significant reason for declining to entertain the issue raised by the Respondent is that, if the Appeal Panel acceded to the Respondent's request, the only avenue of challenge to that decision would be by way of appeal, in the circumstances of this case, to the Supreme Court pursuant to s 82(3)(a) of the CAT Act.
6. If, as in our view should occur, the jurisdictional issue is determined by the Tribunal at first instance before which the issue is part-heard, both parties' rights to internally review its decision are preserved. We will not consider the submissions of the Respondent with respect to the asserted absence of jurisdiction to issue the Summons.

Conclusion

1. For the foregoing reasons, we are not persuaded that the Appellant has demonstrated error with respect to a question of law. Nor are we persuaded that the Appellant has demonstrated a basis for a grant of leave on grounds not involving a question of law. In those circumstances, if the decision of the Tribunal at first instance is interlocutory and leave to appeal is required, no basis for doing so has been established.

Order 1. The appeal is dismissed. 2. Leave to appeal is refused.

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: 10 August 2022