The questions in these proceedings are whether the Civil and Administrative Tribunal (NCAT) has power to refer an alleged contempt to the Supreme Court for determination and, if so, whether it should exercise its discretion to do so.
These questions arise because, despite the Administrative Decisions Tribunal (ADT) making an order that the Department provide Mr Turner with access to three video recordings, it only provided him with access to two of those videos. The Department now says that the third video does not contain any images of Mr Turner. Instead of providing Mr Turner with that video, it says it has provided him with another video which does contain images of him.
I have decided not to refer the matter to the Supreme Court at this stage. Instead, I have given the Department an opportunity to apply to the Tribunal to re-open the order on the basis that the Administrative Decisions Tribunal proceeded on a misapprehension of the facts. I have also recommended that the Department as a model litigant, should consider what other action it should take.
[2]
Background to the contempt allegation
Mr Turner was incarcerated at Wellington Correctional Centre from 15 July 2009 until 3 March 2010. On 28 February 2010 he was moved into segregation. On 23 September 2010, Mr Turner applied under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to information including "CCTV footage and video footage of [Mr Turner] being taken to segregation and time spent in segregation at Wellington Correctional Centre" (First Access Application).
The Department identified three videos - WCCVID.097, WCCVID.098 and WCCVID.099 - as coming within the scope of that application. Each was said to be a video of Mr Turner being strip-searched and taken to and from segregation. The Department determined to grant access to video WCCVID.097, but refused access to videos WCCVID.098 and WCCVID.099.
Mr Turner made another application under the GIPA Act for information, including "[a]ll camera, CCTV and observation footage of [Mr Turner] at Wellington and Bathurst Correctional Centres in 2010" (Second Access Application). Pursuant to s. 60(1)(b) of the GIPA Act, the Department determined not to deal with this aspect of the Second Access Application because it had already made a decision in respect of that information and there were no reasonable grounds to make a different decision.
On 18 February 2013, the ADT affirmed the Department's decision with respect to the Second Access Application, with some exceptions: Turner v Corrective Services NSW [2013] NSWADT 39. In setting out the exceptions, the Tribunal stated at [74]-[75]:
74.Pursuant to section 80(c) of the GIPA Act, a decision to refuse to deal with an access application is a reviewable decision. Pursuant to section 105 of the GIPA Act, the onus is on the Respondent to justify its decision.
75.As noted above, the Respondent did not present any evidence or argument in support of the assertion that there were no reasonable grounds for the Respondent to make a different decision. In the circumstances I invite the Respondent to provide evidence and argument in support of the assertion. I note that I anticipate that some of evidence might be filed on a confidential basis.
The Department subsequently filed written submissions and relied on affidavits in support of the claim that there were no reasonable grounds for making a different decision concerning access to videos WCCVID.097, WCCVID.098 and WCCVID.099. On 21 October 2013 in Turner v Corrective Services NSW (No 2) [2013] NSWADT 232, the ADT set aside the Department's decision in relation to the video footage and made the following orders:
1. The decision of the Respondent in regard to the videos identified as DVD WCCVID.097 WCCVID.098 and WCCVID.099 is set aside.
2. In substitution thereof a decision is made to grant the Applicant access to view the videos. Within 30 days from the publication of these reasons the Respondent is to provide the Applicant with a reasonable opportunity to inspect the footage of the videos.
3. The decision of the Respondent is otherwise affirmed.
I will refer to Order 2 as the "Access Order".
On 19 November 2013, the day before the expiry of the 30 days referred to in the Access Order, Ms Singer, Legal Officer with the Department, wrote to the Registrar of the ADT to advise that the Department had complied with the Access Order. Ms Singer told the Tribunal that Mr Turner had been provided with access to WCCVID.097 and WCCVID.098. Ms Singer says in a recent affidavit that, at that time, she was not aware there had been a mistake in the numbering of the videos.
On 18 December 2013, the Director of Executive Services of Corrective Services NSW wrote to Mr Turner advising there had been a "typographical error" when the Department provided information on the DVDs to the ADT. That error resulted in WCCVID.098 appearing in the order instead of WCCVID.096. The author also stated that, "I am further advised that WCCVID.098 does not exist."
The Department did not advise the ADT of the content of this letter nor did it apply to have the order made on 21 October 2013 re-opened or amended.
There is no dispute that, in compliance with the ADT's order, the Department of Justice provided Mr Turner with access to two Wellington Correctional Centre videos, WCCVID.097 and WCCVID.099. The Department admits that it has not provided Mr Turner with WCCVID.098. Instead, the Department has given Mr Turner access to WCCVID.096.
The order was made by the ADT on 21 October 2013, more than two months before the commencement of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on 1 January 2014.
On 23 November 2015, NCAT received correspondence from Mr Turner alleging that the Department of Justice is guilty of contempt by failing to comply with the Access Order.
Mr Turner alleges that the Department has withheld, concealed or destroyed WCCVID.098 and that it is in contempt for not giving him access to it in accordance with the ADT's orders. Mr Turner requests that NCAT exercise its power under s 73(5) of the NCAT Act and refer the matter to the Supreme Court for determination.
The Department accepts that the Tribunal should deal with the matter as if the Access Order was made by NCAT and exercise the functions under s 73 of the NCAT Act. But the Department submits that it is not guilty of contempt and that NCAT should not exercise its discretion to refer the matter to the Supreme Court. I also sought submissions from the parties on the question of whether NCAT had jurisdiction to refer the matter when the orders were originally made by the ADT.
[3]
Power to refer for contempt
The Access Order was made on 21 October 2013 and included a requirement that the Department provide Mr Turner with a reasonable opportunity to inspect the footage of the videos by 30 November 2013. Because the NCAT Act did not commence until 1 January 2014, the question arises as to whether NCAT has power to deal with Mr Turner's contempt allegation and, if so, whether the relevant provision is s 131 of the former Administrative Decisions Tribunal Act 1997 (NSW) , or s 75 of the NCAT Act.
If the ADT had not been abolished, it would have had power to consider the allegation in accordance with s 131 of the ADT Act. But Mr Turner made the contempt allegation to NCAT on 23 November 2015. The powers of NCAT to deal with the matter depend on the meaning of the relevant savings and transitional provisions in the NCAT Act. Those provisions are set out in Div 3 of Sch 1 to the NCAT Act. They include provision for a person with an "existing unexercised application right" before an abolished Tribunal such as the ADT, to apply to NCAT for the exercise of the same functions that could have been exercised by the ADT: NCAT Act, Sch 1, cl 9(2). they also include a provision which deems an order made by the ADT to be an order of NCAT from 1 January 2014: NCAT Act, Sch 1, cl 14(1).
If, before 1 January 2014, Mr Turner had an "unexercised right" (that is a right that had not been exercised before that date):
1. to apply to the ADT for it to make a decision at first instance concerning a matter,
2. to apply to the ADT for a review of a decision of another person or body,
3. to appeal to the ADT against a decision of another person or body,
he may apply to NCAT for the exercise of the same function that could have been exercised by the ADT had it not been abolished: NCAT Act, Sch 1, cl 6 and 9.
The first question is whether requesting that the ADT report a matter to the Supreme Court for contempt under s 131 of the ADT Act, comes within any of the three matters listed above. Section 131 provided that:
(1) The Tribunal may report the following matters to the Supreme Court:
(a) if a person fails to attend in obedience to a summons after having been served with a summons to attend before the Tribunal as a witness, or
(b) if a person fails to produce any document or other thing in the person's custody or control that the person is required by a summons to produce after having been served with a summons to attend before the Tribunal, or
(c) if a person refuses to be sworn or to make an affirmation or refuses or otherwise fails to answer any question that is put to the person by the Tribunal after being called or examined as a witness before the Tribunal, or
(d) if a person wilfully threatens or insults:
(i) a member, assessor or officer of the Tribunal, or
(ii) any witness or person summoned to attend before the Tribunal, or
(iii) a practising legal practitioner or other person authorised to appear before the Tribunal, or
(e) if a person misbehaves himself or herself before the Tribunal, or
(f) if a person interrupts the proceedings of the Tribunal, or
(g) if a person obstructs or attempts to obstruct the Tribunal, a member of the Tribunal or a person acting with the authority of the Tribunal in the exercise of any lawful function, or
(h) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published, or
(i) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal at a hearing held in private or any of the contents of a document produced at a hearing held in private, except to an officer of the Tribunal or as permitted by the Tribunal or by the regulations, or
(j) if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court.
(2) If the Tribunal reports a matter to the Supreme Court under subsection (1), the Court may deal with the matter as if it were a contempt of the Court. However, a person is not liable to be punished for contempt under this subsection if the person establishes that there was a reasonable excuse for the act or omission concerned.
(3) Subsection (1) (i) does not apply to an officer of the Tribunal in relation to evidence or contents of documents published to other officers or to members of the Tribunal.
The Court of Appeal discussed the nature of this provision in Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105. In that case Mr Potier had appealed to the Appeal Panel of the ADT from certain orders including an "order" by the ADT to refuse to exercise the power under s 131 of the ADT Act. Handley AJA held at [16] that the decision to refuse to exercise the powers under s 131 "were ministerial and not judicial" and that a decision to refuse to report a matter under s 131 was not an appellable decision.
The Court of Appeal referred to the decision in Killen v Lane [1983] 1 NSWLR 171 which relates to the procedure in the Supreme Court for dealing with contempt under Supreme Court Rules 1970, Pt 55, r 11. The Court held at p 177 that those Rules do not confer on a person alleging contempt a right to apply to the court for the court itself to commence proceedings for criminal contempt. A person may inform or allege that a person is guilty of contempt but the commencement of proceedings, or in the present matter, the referral of a matter to the Supreme Court, "is entirely a matter for the court as a ministerial decision taken of its own motion".
This principle has been consistently applied in subsequent decisions. In Capaan v Joss, Managing Director, Westpac (No 2) [1994] NSWCA 41, a notice of motion had been filed seeking orders for the institution of contempt proceedings. The Court of Appeal considered Pt. 55 r 11(1) of the Supreme Court Rules and whether that rule permitted a person to move the court to commence proceedings for contempt. Kirby P, with whom Meagher and Handley JJA agreed, referred to Varley v Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30, where the majority, Hope and Samuels JJA, expressed the view that applications under the then s 475 of the Crimes Act 1900 (NSW) were ministerial and could not be proceeded with by formal judicial proceedings, such as a motion.
Section 131 of the ADT Act gave the ADT power to report a matter to the Supreme Court. If a matter was reported, the Supreme Court would have to decide whether to deal with it as if it were a contempt of the Court. Section 131 did not confer any right on a person to make an application under that provision. The highest it could be put is that a person may have sought to inform or allege to the ADT that a person was in contempt. It follows that Mr Turner did not have an "unexercised right" to make an application of any kind to the ADT in relation to the alleged contempt.
The question then arises as to whether NCAT has power to deal with the matter under s 73 of the NCAT Act. An existing order of the ADT "is taken (from 1 January 2014) to be an order made by NCAT": NCAT Act, Sch 1, cl 14. Consequently, from 1 January 2014 the Access Order is an NCAT order. NCAT can form a view as to whether a person "is guilty of contempt of the Tribunal": NCAT Act, s 73(5). If the Department is guilty of contempt, it has been guilty from 20 November 2013, the day after it was due to comply with the Access Order. It is arguable that NCAT cannot deal with a contempt which is alleged to have been committed before it came into existence, but for the purpose of Mr Turner's application, I have assumed that NCAT has the power to refer this matter to the Supreme Court under s 73. Otherwise there would be an unintended hiatus in the legislative scheme.
[4]
Consideration of whether to refer under s 73(5) of the NCAT Act
Section 73(5) provides as follows:
73 Contempt of Tribunal
(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 any thing 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.
There is no allegation or information to suggest that the Department has committed contempt in the face or hearing of the Tribunal. In those circumstances, the only power available to the Tribunal is to refer the matter to the Supreme Court for determination under s 73(5) of the NCAT Act. The Tribunal has no authority to determine whether the Department is guilty of contempt.
In Burns v Corbett [2015] NSWCATAD 188 at [56] to [61] the Tribunal examined the relevant case law and concluded that, for the discretion to be enlivened:
1. it must be alleged or appear to the Tribunal that a person is guilty of contempt of court; and
2. the person alleged or appearing to be in contempt has been afforded the opportunity of showing why the Tribunal should not refer the matter to the Supreme Court for determination.
I will address the second question first.
[5]
Has the Tribunal afforded the Department an opportunity to respond?
After Mr Turner applied to the Tribunal for the matter to be referred to the Supreme Court, the Tribunal afforded the Department the opportunity to respond. The Department has filed two affidavits as evidence of what occurred following the making of the Access Orders:
1. affidavit sworn on 18 February 2016 of Brett Andrew Lees, Chief Correctional Officer, Corrective Services NSW (Lees affidavit); and
2. affidavit affirmed on 16 February 2016 of Glenn Caren Singer, Senior HR Advisor, Legal Officer IV, HR (Business Partner), Corrective Services NSW (Singer affidavit).
The Department also filed written submissions on 17 March 2016. Following a request by the Tribunal the parties filed further submissions on the question of jurisdiction.
[6]
Is it alleged, or does it appear to the Tribunal, that a person is guilty of contempt?
Mr Turner has alleged that the Department is guilty of contempt by failing to comply with the Access Orders. The part of the order that is the subject of this decision is to grant Mr Turner access to WCCVID.098.
Discretion to refer the matter to the Supreme Court
[7]
Scope of the discretion
The power to refer the matter is unconfined "except in so far as the subject matter and the scope and purpose" of the provision suggests otherwise: Water Conservation Commission v Browning (1947) 74 CLR 492 at 505. As well as the purpose of the referral power and the legal context in which the orders were made, relevant considerations include the likelihood that the Supreme Court would find the Department guilty of contempt and whether there are other mechanisms available to address the issue.
[8]
Purpose of referral power
The Appeal Panel outlined the purpose of the referral power in Burns v Corbett [2015] NSWCATAD 188 at [93]:
93. Moreover, any exercise of the power under s 73(5) must be consistent with the purpose for which it has been conferred. From the reasoning of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 107 and also Witham v Holloway (1995) 183 CLR 525 at 532-534, it can be seen that the purpose of referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court to be determined is at least twofold. The first is to have the Tribunal's orders enforced for the benefit of the applicant who originally obtained those orders. The second is to protect the effective administration of justice by demonstrating that the Tribunal's orders will be enforced.
[9]
Likelihood of finding of guilt
Contempt of court can be constituted by a failure to comply with a court order: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106, Witham v Holloway (1995) 183 CLR 525 at 530. To make out a contempt for breach of a court order at common law it is necessary to establish that:
(i) the alleged contemnor had notice of the order: Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166;
(ii) the obligation imposed by the order is sufficiently clear to support enforcement of the order against the person: Australian Consolidated Press v Morgan (1965) 112 CLR 483 at 492 per Barwick CJ and 503 per Windeyer J; and
(iii) the conduct of the alleged contemnor amounted to a wilful, as opposed to a "casual, accidental or unintentional", failure to comply with the order: Mudginberri at 111-113.
The Department has not provided Mr Turner with access to WCCVID.098 and, as a result, has not complied with that part of the Tribunal's order. There is no dispute that the Department had notice of the order.
The Department submits that the Supreme Court would not find that it is guilty of contempt because the Tribunal had no jurisdiction to make that part of the order. Alternatively, it has established that there is a "reasonable excuse" for its omission: NCAT Act, s 73(2).
The principle that a person cannot be in contempt of an order if the court or tribunal did not have jurisdiction to make the order, is contained in Attorney General v Mayas Pty Ltd (1988) 14 NSWLR 342 (Mayas) at 357 per McHugh JA, with whom Hope JA agreed:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.
According to the Department, WCCVID.098 did not fall within the terms of the First or Second Access Applications, as it did not contain any footage of Mr Turner. Consequently, the Department's decision to refuse access to video WCCVID.098 in dealing with the First Access Application was not a decision "to refuse to provide access to information in response to an access application" within the terms s 80(d) of the GIPA Act. Similarly, the Department's decision to refuse to deal with the Second Access Application to the extent that it concerned video WCCVID.098 was not a decision "to refuse to deal with an access application" within the terms of s 80(c). Therefore these decisions were not "reviewable decisions" for the purposes of ss 80 and 100 of the GIPA Act.
In the proceedings before the ADT the Department identified WCCVID.097, WCCVID.098 and WCCVID.099 as falling within the scope of Mr Turner's applications under the GIPA Act: Turner v Corrective Services NSW (No 2) [2013] NSWADT 232 at [18]. The Tribunal found, in accordance with the evidence of Superintendent Pezzano, who had "reviewed the CCTV footage in relation to the applicant" that: "[T]he DVDs, which have been identified as WCCVID.099 and WCCVID.098, contain CCTV footage which has not been provided to the Applicant": Turner v Corrective Services NSW (No 2) [2013] NSWADT 232 at [20].
In response to Mr Turner's request to refer the allegation of contempt to the Supreme Court, the Department has adduced further evidence on this issue from Mr Lees, the Chief Correctional Officer at Wellington Correctional Centre. Mr Lees states that WCCVID.098 relates to "a segregation move conducted on another inmate (name deleted by Tribunal)". The Department submits that it misled the Tribunal in the proceedings by identifying video WCCVID.098 as relating to Mr Turner.
Even if WCCVID.098 does not contain any footage of Mr Turner, the Department nevertheless made two reviewable decisions. The first was "to refuse to provide access to information in response to an access application" within the terms s 80(d) of the GIPA Act. The second was "to refuse to deal with an access application" within the terms of s 80(c) of the GIPA Act. The Supreme Court is likely to find that the ADT had jurisdiction to review those decisions.
Alternatively, the Department submitted that it had a "reasonable excuse" within the terms of s. 73(2) of the NCAT Act for not complying with the Tribunal's order in respect of video WCCVID.098. If this matter were referred to the Supreme Court, the Department would have the burden of proving such a defence: Burns v Corbett [2015] NSWCATAD 188 at [67].
The "reasonable excuse" was that WCCVID.098 does not relate to Mr Turner but to another person who was in custody at the time. It was said that the Department mistakenly identified WCCVID.098 as being a video that came within the scope of Mr Turner's applications. That mistake was not identified until after the Tribunal had made its order.
Mr Lees' duties include managing video recordings at the Wellington Correctional Centre. In his affidavit he states that on 12 February 2016, he conducted a search of the register of video footage and identified only the following three recordings as involving Mr Turner:
1. WCCVID.096 - a recording of Mr Turner being taken to segregation on 28 February 2010;
2. WCCVID.097 - a recording of Mr Turner being strip-searched on 28 February 2010; and
3. WCCVID.099 - a recording of Mr Turner being transferred from segregation to intake on 3 March 2010.
Mr Lees determined that, apart from these three recordings, Wellington Correctional Centre held no other videos on the register of video footage relating to Mr Turner in 2010. Mr Lees also determined that video WCCVID.098 did, in fact, exist, but that it related to the segregation move of another inmate whom he identified.
Accordingly, the Department submits that it had a "reasonable excuse" within the terms of s. 73(2) of the NCAT Act for not complying with the Tribunal's order in respect of video WCCV1D.098.
If the evidence given by Ms Singer and Mr Lees is accepted, the officers of the Department did not realise at the time the order was made that WCCVID.098 did not relate to Mr Turner. The evidence, as it currently stands, suggests that the mistake only became apparent when arrangements were made for Mr Turner to view the videos. It is arguable that it was reasonable, at that time, not to provide Mr Turner with WCCVID.098 if it did not relate to him.
[10]
Technical breach
The Department submitted that even if the order was validly made, and there was no reasonable excuse for non-compliance, it was a mere technical breach of the order. The Department says it gave effect to the "spirit" of the Access Orders by providing Mr Turner with access to all three of the videos that related to him and which fell within the scope of the First and Second Access Applications. Such access included video WCCVID.096. Video WCCVID.098, which was also referred to in the Access Order, did not relate in any way to Mr Turner.
The Department reasoned that when making the Access Orders, the ADT clearly intended to compel the Department to provide Mr Turner with access to the videos concerning him. If it were not for the Department's misidentification of video WCCVID.098 as relating to Mr Turner, the Access Order would have been directed to WCCVID.096. Accordingly, the Tribunal should decline to exercise its discretion to refer the matter to the Supreme Court under s. 73(5) of the NCAT Act.
Again, if the Department's evidence is accepted, there is an explanation for the breach. It is arguable that the breach was a technical one.
[11]
Policy goals
Finally, the Department submitted that referring the matter to the Supreme Court would not vindicate the authority of the Tribunal's orders, nor would it serve to protect the effective administration of the Tribunal's processes by demonstrating that the Tribunal's orders will be enforced: Australian Meat Industry Employees Union Ltd v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107.
[12]
Conclusion
The Department has failed to comply with an order of the ADT which is now an order of NCAT. It has belatedly provided an explanation for that failure. Because a reasonable explanation has now been provided, it is not appropriate, at this stage, to refer the matter to the Supreme Court. But the Department should take immediate action to address the breach. First, if video WCCVID.098 does not relate to Mr Turner, the Department should apply to NCAT for the order to be re-opened and amended because it was based on a "misapprehension as to the facts" or on some other basis: Director General, NSW Department of Community Services [No 2] 190 CLR 207 at 215. As part of that application the Department should give the Tribunal the original videos. After viewing the videos the Tribunal should determine whether to re-open the orders.
Second, as a model litigant, the Department should consider what other action it should take.
The only action the Department took was to write to Mr Turner on 18 December 2013 saying that there had been a "typographical error" and that WCCVED.098 does not exist. Although Ms Singer did not sign that letter, she says she based her belief that WCCVID.098 did not exist on discussions she had with Ms Fulford, Manager Information Access and Privacy. She adds that, "Perhaps it would have been more correct to say at the time that as far as the Respondent was aware, WCCVID.098 did not exist in relation to Mr Turner's matter".
The Department is bound by its own Model Litigant Policy. As a State agency, it is required to "act honestly and fairly in handling claims and litigation". That obligation includes apologising where it is aware that it or its lawyers have acted wrongfully or improperly. In accordance with this policy, the Department should have made inquiries about the basis of the alleged error as soon as it came to its attention, advised Mr Turner and the Tribunal exactly what had happened and considered apologising to Mr Turner for its mistake. The offer by the Department made on 11 January 2016, for Mr Turner to again view videos WCCVID.096, WCCVID.097 and WCCV10.099 was not, in my view, an adequate response.
[13]
Other allegations
Mr Turner makes numerous other allegations including allegations that criminal offences have been committed. For example, Mr Turner claims that denying him access to WCCVID.098 involved "an illegal act of deception to wilfully omit false information": Crimes Act 1900, s 317.
Mr Turner also alleges that various people have committed offences including assault, perverting the course of justice and malicious wounding. Finally, Mr Turner alleges that the Department has committed the tort of misfeasance in public office for "fail[ing] to act" in relation to WCCVID.098 and making "unrealistic claims that the footage … had simply never been in existance [sic], and as such were a typographical error". He seeks various orders for the production of evidence and the summonsing of witnesses.
The Tribunal has no jurisdiction to consider these allegations or applications in the context of s 73 of the NCAT Act or otherwise.
[14]
Matter determined on the papers
On 1 February 2016, the Department sought an order that this matter be determined 'on the papers': NCAT Act, s 50(2). That provision allows the Tribunal to dispense with a hearing "if it is satisfied that the issues for determination can be adequately determined in the absence of the parties … ". Despite Mr Turner's opposition to that course, the Tribunal is satisfied that that is the case. The Tribunal's task is not to make findings as to whether a person is or is not guilty of contempt. It is merely to determine whether to refer a matter to the Supreme Court. In those circumstances an oral hearing is not necessary and the matter can be adequately determined in the absence of the parties.
[15]
Orders
An oral hearing is not required.
The Tribunal declines to refer the matter to the Supreme Court.
[16]
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: 11 July 2016