Mr Turner has made allegations that Ms Trost, a delegate of the Commissioner of Police, is guilty of contempt. Mr Turner also alleges that two solicitors employed by Sparke Helmore Lawyers, Ms Thangasamy and Mr Thompson are guilty of contempt.
Two interlocutory applications were determined prior to the commencement of the hearing. The first was that I should disqualify myself for bias. The second was that the hearing should be adjourned. Oral reasons were given for rejecting both those applications.
The Tribunal's powers in relation to contempt are set out in s 73 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act):
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.
Note: Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).
(2) A person is guilty of contempt of the Tribunal if the person does or omits to do anything that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.
(4) For the purposes of this section:
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and
(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and
(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.
Note: Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.
(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.
(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
In Burns v Corbett [2015] NSWCATAD 188 the Appeal Panel set out many of the relevant principles to be applied when considering applications under 73 of the NCAT Act.
The first issue to be determined is whether, pursuant to s 73(1), it is alleged or appears to the Tribunal on its own view that the person is guilty of contempt in the face or hearing of the Tribunal: Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 at 480 Hope AJA; Pelechowski v Registrar, Court of Appeal [1999] HCA 19 at [17].
If so, the questions the Tribunal should ask itself are:
1. is there a reasonable excuse for that act or omission (NCAT Act, s 73(2); and
2. should the Tribunal, in its discretion, exercise any of the powers set out in s 199 of the District Court Act 1973 (NSW).
The second issue to be determined is whether, pursuant to s 73(5), it is alleged or appears to the Tribunal on its own view that the person is guilty of contempt not in the face or hearing of the Tribunal and, if so:
1. whether there a reasonable excuse for that act or omission (NCAT Act, s 73(2); and
2. if there is no reasonable excuse, whether the Tribunal exercise its discretion to refer the matter to the Supreme Court for determination: Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188 at [29] to [34].
My view is that no person named by Mr Turner is guilty of contempt either in the face or hearing of the Tribunal or otherwise. Consequently I decline to exercise any power under s 199 of the District Court Act or refer any matter to the Supreme Court.
[2]
Nature of Tribunal's powers
When exercising functions dealing with an alleged or apparent contempt, the Tribunal is exercising its "enforcement jurisdiction". Section 33 of the NCAT Act provides that:
(1) The "enforcement jurisdiction" of the Tribunal is comprised of:
(a) the functions of the Tribunal when dealing with an alleged or apparent contempt of the Tribunal, and
(b) the functions of the Tribunal when dealing with an application under section 77 for a contravention of a civil penalty provision of this Act.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its enforcement jurisdiction:
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act in connection with the conduct or resolution of such proceedings.
When exercising its enforcement jurisdiction, the Tribunal must observe the rules of evidence: NCAT Act, s 38(3). Despite these proceedings being civil in nature, the onus is on the person alleging contempt in the face or hearing of the Tribunal to prove those matters beyond a reasonable doubt: Witham v Holloway (1995) 183 CLR 525.
The person alleged or appearing to be in contempt (the contemnor) must be given the opportunity of showing why he or she is not guilty of contempt or why he or she had a reasonable excuse for the act or omission: Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 Mahoney JA at 470; Hope AJA at 480. Such a person should also be informed that he or she is entitled to remain silent: Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 Kirby P at 462-465, Mahoney JA at 472A and Hope AJA at 480D.
[3]
Background
On 25 August 2014 Mr Turner applied to the Commissioner of Police for information under the Government Information (Public Access) Act 2009 (GIPA Act). The substantive application related to three general categories of information:
1. Crime Stoppers records,
2. documents relating to COPS event reports; and
3. records of visits or attempted visits by police officers and members of the Corrective Services Investigation Units (CSIU) to New South Wales Correctional Centres where Mr Turner was in custody.
The Crime Stoppers information is the most relevant to these proceedings. Mr Turner requested disclosure of "records, material and information to Crime Stoppers for calls made 2007 - 2014 made by Donovan Turner and any disclosable material associated to reports taken by police … "
On 18 May 2015 a delegate of the Commissioner, Ms Trost, made a supplementary decision reconsidering the records that could be released to Mr Turner in response to the original application. The Tribunal is part-heard in Mr Turner's application for an administrative review of the Commissioner's supplementary decision. There have been two days of hearing; 16 September 2015 and 12 October 2015. It is largely as a result of evidence adduced on those days that Mr Turner has made allegations that certain people are guilty of contempt.
Mr Turner has also applied under s 112 of the GIPA Act for the Tribunal to bring Ms Trost's conduct to the attention of the responsible Minister. Section 112 provides that:
If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
The Tribunal has directed the parties to make submissions in relation to that application. I will refer to the s 112 application as the "improper conduct matter", the GIPA application as the "substantive application" and the contempt allegations as the "contempt matter". These reasons deal only with the contempt matter.
[4]
Summary
The allegations are set out in the original contempt "application" dated 15 October 2015 and in five subsequent submissions from Mr Turner dated 10, 13, 14 and 23 November and 28 December 2015.
The Commissioner provided submissions dated 8 December 2015 and relied on transcript of the entire proceedings on 16 September 2015 and 12 October 2015. Those transcripts had already been provided to the Tribunal in response to the improper conduct application.
The main allegations against Ms Trost are that she wilfully failed to provide Crime Stoppers Information, gave false evidence to the Tribunal and misled the Tribunal. Mr Turner also alleges that Ms Trost produced false and misleading documents to the Tribunal, tampered with evidence, concealed or failed to provide statements or other evidence and knowingly modified or removed data held in a computer.
The allegation against Ms Thangasamy a solicitor employed by Sparke Helmore Lawyers, are that she "actively facilitated the commission of a crime, as to aid and abet Ms Trost in her repetitive acts of criminal contempt." The allegation against Mr Thompson, a solicitor employed by Sparke Helmore Lawyers is that he failed to comply with a procedural direction of the Tribunal.
[5]
Allegations against Ms Trost
At the centre of the contempt allegations is the conduct of Ms Trost in relation to Mr Turner's application for Crime Stopper information. He alleges that Ms Trost has wilfully failed to comply with Mr Turner's application under the GIPA Act for records of his phone calls to Crime Stoppers from 2007 to 2014.
According to Mr Turner, he suffered repeated intimidation and harassment by NSW Police prior to an incident on 29 May 2008 and during the period of investigations and court proceedings following that incident. He said he made numerous 000 phone calls to Crime Stoppers reporting these incidents of intimidation and harassment. He made detailed diary entries of the incidents. The records of those calls is one of the types of information sought in his substantive application.
At the hearing on 16 September 2016, in the substantive application Mr Turner states that Ms Trost denied that she had been given information of the dates, times and content of the Crime Stopper calls and said that she needed reference numbers, times and dates before she could locate the documents. In cross-examination Mr Turner put to her that she had that material. She denied having received it. Mr Turner did not provide any references from the transcript of the proceedings on 16 September 2015 or 12 October 2015 but I have read those transcripts.
Mr Turner told the Tribunal on 16 September 2015 that at least 3 months ago (in June 2015) he had provided Sparke Helmore, Lawyers, and the Tribunal, with the "exact dates, times, places, cards left by police officers and other evidence of Crime Stoppers reports" he had made. He said he had even provided "the reference numbers from the Crime Stoppers personnel." (Transcript 16 September 2015, p 58 l 16 - 20.) He asked Ms Trost why it is that the Crime Stoppers reports had not been disclosed under the GIPA Act. Ms Trost answered that:
"As far as the numbers, which we have consistently advised you are required to locate any of the phone calls, they were provided by you on 4 May. I believe that you have a copy of the calls today and they have been provided. … I have never been provided with any other Crime Stopper numbers that I can ask to have searched on the Crime Stoppers data base … and dates and times are not suitable for searching the way Crime Stoppers file their information." (Transcript 16 September 2015 p 59, l 10-15.)
Ms Trost added at line 44 that "… these two pages were provided to me via Sparke Helmore and our office of general counsel … and they indicate the numbers. These are the only Crime Stopper numbers I have ever seen in relation to any call that you may have made to Crime Stoppers.F"
Mr Turner asked the Tribunal to draw the conclusion that Sparke Helmore Lawyers had not given Ms Trost all the information that he had provided and which would have enabled her to identify and provide the Crime Stoppers reports. Ms Trost clarified (at p 62 l 6 to 31) that she had received four reference numbers and had provided the documents that correlated with those numbers but that she had not received any other reference numbers.
According to Mr Turner, in "later proceedings" Ms Thangasamy stated that Ms Trost "had been shown" the journal entries. He did not direct my attention to any transcript reference or other evidence that Ms Thangasamy had made that comment. His submission was that if Ms Trost received the journal records in June 2015, she has had ample opportunity to view the records and locate the documents.
Mr Turner's submission is that Ms Trost has failed to disclose the Crime Stoppers records he has applied for under the GIPA Act and that she has given false evidence to the Tribunal. Alternatively, Mr Turner appears to be alleging that Ms Trost has misled the Tribunal during the proceedings on 16 September 2015 by denying that she had ever seen the journal records Mr Turner said he provided in June 2015.
[6]
Other allegations against Ms Trost
As well as these specific allegation, I have grouped Mr Turner's more general allegations against Ms Trost into the following categories:
1. Ms Trost has produced false and misleading documents to the Tribunal in purported compliance with the GIPA Act, in particular an excel spread sheet which is not a true document.
2. During the period of 2012 to 2015, Ms Trost has tampered with evidence, in particular: police reports, Crime Stopper file records and police handbook entries.
3. Ms Trost has wilfully concealed and failed to provide statements and/or 'handbook entries' from at least eight police officers.
4. Ms Trost has knowingly modified and/or removed data held in a computer including: police reports; crime stopper files; police handbook entries; COPS event numbers; and GIPA applications (100725 MG, 25 August 2010; 111488 LT, 17 April 2012 and 128841 6 March 2015).
[7]
Allegations against Ms Thangasamy
Mr Turner alleges that Ms Thangasamy is guilty of contempt because she "actively facilitated the commission of a crime, as to aid and abet Ms Trost in her repetitive acts of criminal contempt."
[8]
Allegations against Mr Thompson
Mr Turner also alleges that Mr Thompson has failed to comply with a direction of the Tribunal. On 12 October 2015 the Tribunal made a direction that the Commissioner file and serve any submissions in regard to the improper conduct matter by 6 November 2015. Mr Turner was directed to file and serve his submissions by 20 November 2015. The improper conduct matter was set down for hearing on 25 November 2015. On 13 November 2015, the Commissioner wrote to the Tribunal requesting that the hearing date be vacated and that the matter be re-listed in 2016. The reason for that application was said to be that the Commissioner wished to conduct "an administrative review of the searches and decisions under review in order to prepare submissions and evidence addressing the improper conduct application."
The Tribunal granted the application for adjournment in chambers on 16 November 2015 and listed the matter for directions on 24 November 2015. On that date directions were made for the Commissioner to file and serve submissions on the improper conduct application by 31 December 2015 and for Mr Turner to reply by 29 January 2016. According to Mr Turner, the Commissioner did not comply with the direction to file the submissions by 31 December 2015.
Mr Turner alleges that at the directions hearing on 24 November 2015 Mr Thompson told the Tribunal that his client could not respond to Mr Turner's improper conduct application because there is a current investigation by the Minister of Police into Crime Stoppers.
[9]
Is a person guilty of contempt in the face or hearing of the Tribunal?
[10]
Against whom can a contempt allegation be made?
There is no restriction on the identity of persons who may be the subject of an allegation of contempt. That person may be a party to the proceedings, a witness, a legal representative or any other person: The Queen v Witt [2016] VSC 19 at [44]. Ms Trost was a witness in the substantive proceedings and Ms Thangasamy and Mr Thompson are legal representatives.
[11]
Contempt in the face or hearing of the Tribunal
Contempt in the face or hearing of the Tribunal has been interpreted to mean conduct seen or heard by the decision-maker: Fraser v R [1984] 3 NSWLR 212 per Kirby P and McHugh JA. There is a wider view that contempt in the face or hearing of the court extends to conduct, without geographic boundaries, "… which is sufficiently proximate in time and space to the trial of proceedings then in progress or imminent so as to provide a present confrontation to the trial": Court of Appeal, Registrar of the v Collins [1982] 1 NSWLR 682 at 684. Although either view is open, we have adopted the broader view in this case: European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 per Priestley JA at 463.
Examples of contempt in the face of the court, include abusing or swearing at a Magistrate (Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994) refusing to be sworn or affirmed or to give evidence (Smith v The Queen (1991) 25 NSWLR 1), prevaricating or refusing to answer questions (Keeley v Brooking (1979) 143 CLR 162) and remaining in court after having been ordered to leave (In the matter of Bauskis [2006] NSWSC 908).
[12]
Are the allegations of contempt in the face or hearing of the Tribunal?
The only allegation Mr Turner makes which a decision maker saw or heard, or which is sufficiently proximate to the substantive proceedings so as to provide a present confrontation to the trial is that Ms Trost gave false evidence. The so-called "false evidence" which Ms Trost is alleged to have given is presumably that she did not receive the information Mr Turner provided to Ms Thangasamy. The transcript confirms that Ms Trost gave that evidence but there is no basis for finding that it was false. Mr Turner assumes that because he provided documents to Sparke Helmore, those documents were passed on to Ms Trost. The only evidence which suggests that that information may have been passed on is Mr Turner's assertion that Ms Thangasamy told him that she had given the information to Ms Trost. That is a manifestly insufficient basis for proving that Ms Trost gave false evidence to the Tribunal.
Even if Mr Turner could prove that Ms Trost gave false evidence, that fact, by itself, does not constitute contempt. Giving false evidence is perjury. It is only where the giving of that evidence was "with the actual or inevitable intent or consequence of frustrating or obstructing the proceedings" that Ms Trost could be dealt with for contempt of the Tribunal: Keeley v The Honourable Mr Justice Brooking [1979] HCA 28; (1979) 143 CLR 162 at 169. Barwick CJ added at 170, that "a case of contempt by false swearing must be relatively rare."
The evidence that Mr Turner has provided does not establish beyond a reasonable doubt that Ms Trost has falsely sworn to matters which have the actual or inevitable intent or consequence of frustrating or obstructing the proceedings.
The summary jurisdiction of the Tribunal to punish for contempt in the face or hearing of the Tribunal is exceptional and should be exercised with restraint and only in a clear and serious case, in which it is necessary to act immediately: Keeley v Brooking (1979) 143 CLR 162 at 173. This is not such a case.
[13]
Is a person guilty of contempt NOT in the face or hearing of the Tribunal?
Examples of contempt not in the face or hearing of the Tribunal include:
1. contempt by publication;
2. interference with persons having duties to discharge in respect of court proceedings;
3. breach of duty by persons officially connected with court proceedings;
4. conduct which scandalises the court, prejudges proceedings or which involves disclosing or reporting jury deliberations;
5. interference with persons over whom the court exercises special jurisdiction; and
6. abuse of process;
7. refuse or neglect to do an act required by a judgment or order of a court within the time specified in the judgment or order;
8. disobey a judgment or order requiring a person (including a body corporate) to abstain from doing a specified act; or
9. act in breach of an undertaking given to the court by a person, on the faith of which the court sanctions a particular course of action or inaction. (Halsbury's Laws of Australia, Contempt (title 105) LexisNexis).
[14]
Ms Trost
The allegation that Ms Trost has wilfully failed to comply with Mr Turner's application under the GIPA Act for records of his phone calls to Crime Stoppers from 2007 to 2014 is not an allegation of contempt. Even if Ms Trost has not disclosed information that Mr Turner has requested under the GIPA Act, her failure to do so, as the delegate of the Commissioner, is not in breach of any order of the Tribunal. The Tribunal has not made final orders in the substantive application.
Similarly, none of the allegations that Ms Trost produced false and misleading documents to the Tribunal, tampered with evidence, concealed statements or knowingly modified or removed data held in a computer are allegations of contempt. Even if they were, none has been proved, even on the balance of probabilities.
[15]
Ms Thangasamy
While a person who is not a party may be liable for contempt by aiding or abetting a breach of an order of the Tribunal there is no allegation of that kind against Ms Thangasamy: The Queen v Witt [2016] VSC 19 at [49] - [53]. It also follows that since Ms Trost is not guilty of contempt, Ms Thangasamy cannot be guilty of aiding or abetting Ms Trost.
[16]
Mr Thompson
I am not aware of any authority for the proposition that breach of a procedural directions made by the Tribunal to file and serve evidence or submissions may constitute contempt. Mr Thompson, a solicitor employed by Sparke Helmore Lawyers, wrote to the Tribunal requesting that the hearing date be vacated and the timetable be amended. The Tribunal granted those applications. While it is always preferable for a party to apply for an extension of time before the time limit has expired, failure to do so does not constitute contempt.
[17]
Orders
The Tribunal declines to exercise any power under s 199 of the District Court Act 1973.
The Tribunal declines to refer any allegations of contempt to the Supreme Court.
[18]
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: 16 February 2016