Mr Turner has made allegations that the Respondent's representatives and witnesses are guilty of contempt. I have decided not to exercise any power under s 199 of the District Court Act 1973 (NSW) or to refer any allegation of contempt to the Supreme Court.
[2]
Background
Mr Turner applied under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to certain information. By the time of the hearing the request had been narrowed to:
"All evidence analysis, reports, records, receipts, station exhibit numbers, and forensic examination and personal DNA request forms held by FASS from 2008 to 2009 in relation to the matter of Troy Clough and Donovan Turner, using their names and the following identifiers as search terms: FS 082895 and police event numbers 34294543".
"The matter of Troy Clough and Donovan Turner" refers to an altercation between Mr Turner and Mr Clough which took place on 29 May 2008: Turner v R [2015] NSWCCA 322 (18 December 2015).
The Respondent searched for the information Mr Turner requested and gave him access to several documents in response to his application. A number of documents remained in dispute. Following a hearing on 8 November 2016, the Tribunal found that the Respondent did not hold two documents that Mr Turner had requested. The Tribunal also agreed that Mr Turner should not be given access to two other documents which contained "the actual DNA profile of a third party, and written verification of that DNA profile": Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at [62].
One of the issues before the Tribunal was whether the Respondent had conducted "reasonable searches" for the requested information: GIPA Act, s 53(1). The Tribunal made certain findings about that issue which we address below under the heading "False submissions and failure to correct false statements".
The Tribunal recorded Mr Turner's submissions that the Respondent had acted improperly and unlawfully, both in their response to the access application and in the course of these proceedings, by:
1. providing inconsistent evidence;
2. not providing evidence from certain witnesses;
3. concealing information, in breach of s120 of the GIPA Act and s 317 of the Crimes Act 1900;
4. its agents not exercising functions in good faith, such that the Tribunal should report the matter to the responsible Minister pursuant to s 112 of the GIPA Act;
5. providing false or misleading statements to the Tribunal, in breach of s 71 of the GIPA Act, and therefore the Tribunal should consider whether the Respondent should be found in contempt of the Tribunal pursuant to s 71 of the GIPA Act;
6. its agents tampering with evidence and impermissibly matching DNA profiles in breach of s 93 of the Crimes (Forensic Procedures) Act 2000;
7. its agents concealing a serious indictable offence, in breach of s 316(1) of the Crimes Act 1900: Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 (11 April 2017) at [22].
I understand the reference to s 71 of the GIPA Act in item (5) above, to be a typographical error. I have assumed Mr Turner and the Tribunal intended to refer to s 71 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That provision creates an offence of providing information to the Tribunal or making any statement to the Tribunal which the person knows is false or misleading in a material respect.
In relation to item (1) above, the Tribunal found that there were some inconsistencies in the Respondent's decision under the GIPA Act but not that it had provided inconsistent evidence.
In relation to item (2) above, the Tribunal found at [50] that the Tribunal, was not obliged to summons particular people to give further evidence about the searches that had been undertaken for the information. Mr Turner had not explained why he was unable or unwilling to summons witnesses himself.
In relation to the other the items about improper or unlawful conduct, the Tribunal summarised Mr Turner's concerns (at [72]) as relating to "various typographical or recording inconsistencies in the documents filed with the Tribunal, the different descriptions used to identify the Respondent, and inconsistencies in evidence". The Tribunal refused Mr Turner's request under s 112 of the GIPA Act to bring the conduct of an officer to the attention of the responsible Minister. The Tribunal also decided that it did not have power to determine whether an offence had been committed under any of the State or Commonwealth statutes Mr Turner identified.
The orders the Tribunal made were as follows:
(1) Set aside the administratively reviewable decision of 15 June 2016 and remit the matter for reconsideration by the Respondent in accordance with these reasons, such reconsideration to be completed within 45 days of the publication of these reasons.
(2) Direct the Respondent to conduct specified additional searches referred to at paragraph [55], and provide the following to the Applicant and the Tribunal within 21 days:
(i) access to any documents or information resulting from those searches which have not already been provided to the Applicant;
(ii) a statement from each person who conducts any of those searches identifying: what searches are conducted, where and how those searches are conducted, and what information or documents, if any, resulted from those searches.
(3) The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.
(4) The matter is listed for directions on 31 May 2017 at 10am.
On 7 December 2016, while a decision in the substantive proceedings was reserved, Mr Turner lodged the contempt application. This decision is confined to allegations of contempt which are said to justify action under s 73 of the NCAT Act.
[3]
Tribunal's contempt powers
Section 73 of the NCAT Act provides that:
(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.
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].
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) of the NCAT Act, it is alleged or appears to the Tribunal on its own view that a 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].
[4]
Nature of Tribunal's powers
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": Registrar, Court of Appeal 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).
In John Fairfax & Sons Pty Ltd v McRae [1955] HCAT 12 at [22] the High Court (Dixon CJ, Fullagar, Kitto and Taylor JJ) stated that the power to punish a person for contempt should be exercised with "great caution". The majority went on to say (footnotes omitted) that:
A penalty will not be imposed in its exercise "unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference."
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.
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 principles in Briginshaw v Briginshaw [1938] HCA 34 apply.
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.
[5]
Summary
Mr Turner complied with my direction to give to the Tribunal and the Respondent a list of the conduct he says constitutes contempt of the Tribunal. He also relies on previous submissions. He said that the contempt application relates primarily to the hearing in the substantive proceedings on 8 November 2016 and to procedural hearings leading up to that hearing. The majority of Mr Turner's allegations are about the Respondent providing incorrect file numbers or naming itself incorrectly in material filed with the Tribunal. Mr Turner alleges that the Respondent deliberately concealed or fraudulently manipulated documents. Mr Turner also alleges that witnesses gave false evidence and that the Respondent failed to correct false and misleading evidence given by Ms Black and Ms Miller during the hearing on 8 November 2016.
On the basis of the material provided by Mr Turner, and the Respondent's response to it, the conduct, and any agreed facts, can be summarised as follows:
1. Incorrect file numbers: The Respondent's representative provided incorrect file numbers on some of the documents lodged with the Tribunal in the substantive proceedings. Mr Turner submits that it can be inferred that there was a parallel set of Tribunal proceedings involving him which the Respondent and its representatives conspired to conceal from him.
2. Incorrect names of the Respondent: In separate documents lodged with the Tribunal by the Respondent and attached to Mr Turner's submission of 16 November 2016, the Respondent is described in three different ways: 'NSW Health Pathology', 'Forensic & Analytical Science Service' and 'NSW Health Pathology, Forensic & Analytical Science Service'. Mr Turner submits that it can be inferred from these inconsistencies either that the documents with the name other than NSW Forensic & Analytical Science Service contain illegally obtained evidence or that another agency which might hold relevant documents exists and the Respondent and its representatives have conspired to withhold the existence of that agency from him.
3. False statements of witnesses: Mr Turner makes a general allegation that Ms Miller and Ms Black, the two witnesses for the Respondent who gave evidence in the substantive proceedings, provided false and misleading information. The information said to be false concerned the searches that were made and the dates in May 2008 to which those searches related. Mr Turner also alleges that Annexure B to Ms Black's affidavit was falsified. The annexure is an email exchange between employees of the Respondent about what kinds of searches could be performed to locate documents to which Mr Turner was seeking access. Mr Turner alleges that this is false evidence and the original emails have been replaced. That inference can be drawn, he says, because the internal receipt number was 'penned in' and had no date underneath it whereas the typed receipt sticker on other pages had a printed date underneath it. Mr Turner refers to evidence Ms Black gave about this issue when he cross-examined her during the substantive hearing.
4. False submissions, failure to correct false statements: Mr Turner alleges that:
1. the Respondent's representative made allegedly false submissions and failed to correct allegedly false statements made by witnesses;
2. the officer from the Respondent who attended the hearing to instruct the Respondent's representative failed to intervene to correct the allegedly false and misleading submissions made by the Respondent's representative and the false and misleading evidence provided by the witnesses.
1. Other misconduct: Mr Turner alleges that various officers of the Respondent, as well as its representative, concealed information or falsified documents and argued the case based on the alleged false or illegal documents.
[6]
On the papers?
Mr Turner asked the Tribunal to consider his application after having a hearing because he wanted to test the evidence of the people against whom he has made allegations. After consulting with the parties I have decided to determine the application 'on the papers': NCAT Act, s 50(2).
Mr Turner submitted that an oral hearing should be conducted so that the evidence could be better explained and understood. He emphasised that he is not a lawyer. A further reason for requesting an oral hearing is that he should have the opportunity to test the evidence of the Respondent's representatives and witnesses.
Relevant considerations when deciding whether to determine a matter on the papers include:
1. the extent to which it is necessary to determine contested questions of fact or issues of credibility: Avery v Registrar Births Deaths and Marriages [2014] NSWCATAP 19 at [26];
2. the complexity of any questions of fact or law: Sasterawan v Roads and Maritime Services [2016] NSWCATOD 142 at [17];
3. the extent to which each of the parties is able to articulate their arguments in writing: Sasterawan v Roads and Maritime Services [2016] NSWCATOD 142 at [17]; and
4. the 'guiding principle' in s 36(1) of the NCAT Act which is the "just, quick and cheap resolution of the real issues in dispute": Sasterawan v Roads and Maritime Services [2016] NSWCATOD 142 at [17]; Donoghoe v Compass Housing Services [2015] NSWCATAP 97 at [76].
Although neither party provided a transcript of the substantive proceedings, I have listened to the tape recording of Ms Miller's evidence and Ms Black's evidence. There can be no factual dispute about what was said or done during the hearing. The dispute is about the inferences that can be drawn from that conduct. Each party has been given a reasonable opportunity to make submissions about any inferences that should be drawn.
Significantly, the Respondent has indicated that none of the people Mr Turner named or identified wish to be given the opportunity to respond any further to the allegations. In all the circumstances, there is no need for an oral hearing.
[7]
Incorrect file numbers
The Tribunal file number of these proceedings is 1610152. Following the introduction of a new system, files were re-numbered on 19 December 2016. The new file number is 2016/00377934. Mr Turner alleges that the false file numbers recorded on these documents were 1410636 and 1610152.
In its submissions in reply at [7] the Respondent acknowledges the error in recording file number 1410636:
The Respondent acknowledges that the Notice of Representation dated 22 July 2016 and the affidavit of Nicole Maree Miller filed on 27 July 2016 incorrectly referred to the NCAT file 1410636. Registry staff alerted the Respondent's solicitor to the error on 28 July 2016 and a new Notice of Representation was promptly filed. The Respondent's solicitor also drew the Applicant's attention to the error, as he was served with all material filed by the Respondent in the context of these proceedings, including the two documents that referenced file number 1410636.
In evidence before the Tribunal hearing the substantive matter was an email from the Respondent's representative to Mr Turner dated 28 July 2016 attaching an updated Notice of Representation. The email noted that the updated Notice contained the correct file number.
Mr Turner asked Ms Miller in cross-examination why file number 1410636 appeared on an earlier statement dated 10 June 2016 and on her affidavit dated 27 July 2016. Ms Miller said that the file number was provided by the Crown Solicitor's Office, not by her. She said she had not heard of the number 1610152.
Mr Turner has proved beyond reasonable doubt that the Respondent's representative wrote an incorrect file number (1410636) on the original Notice of Representation, on Ms Miller's statement dated 10 June 2016 and on her affidavit dated 21 July 2016. These documents were lodged with the Tribunal and served on Mr Turner.
I find that lodging a document with the Tribunal is conduct that occurs "in the face of the Tribunal or in the hearing of the Tribunal" because whether the documents were hand delivered or posted, the conduct "is sufficiently proximate in time and space to the trial of proceedings". But the conduct itself does not constitute contempt.
The Respondent's representative said that the incorrect file number was a typographical error which was promptly corrected when brought to their attention. That is a plausible explanation for the mistake. There are no parallel proceedings with the file number of 1410636 which the Respondent has conspired to keep from Mr Turner. Nor is there any basis to find that the wrong file numbers were deliberately inserted for some other improper or illegal purpose.
Mr Turner has not proved beyond reasonable doubt that any person is guilty of contempt in the face of the Tribunal or otherwise.
[8]
Incorrect names of the Respondent
At [4] of her affidavit of 21 July 2016 in the substance proceedings, Ms Miller explained that:
FASS is one of five networks within NSW Health Pathology. NSW Health Pathology was formed in November 2012 bringing together four previously separate public pathology networks. FASS merged with NSW Health Pathology, to become the fifth NSW Health Pathology network, in December 2012.
During the substantive hearing, Mr Turner cross-examined Ms Miller on this issue. Ms Miller confirmed that FASS (NSW Forensic and Analytical Science Service) is one of the five networks within NSW Health Pathology. She also gave evidence that searches were not conducted in any area of NSW Health Pathology other than FASS. When Mr Turner asked her why that was the case she said that "there was nothing in the material provided that would suggest that the material would be sitting anywhere else but with NSW FASS".
In its submissions in reply at [8] the Respondent gives the following explanation for the discrepancies in the Respondent's name:
The Respondent submits that nothing hinges on the discrepancies between how the Respondent has been described, as the Forensic and Analytical Science Service (FASS) is part of NSW Health Pathology.
Mr Turner has proved beyond reasonable doubt that the Respondent described itself in three different ways on various documents lodged with the Tribunal.
I find that lodging a document with the Tribunal is conduct that occurs "in the face of the Tribunal or in the hearing of the Tribunal" because whether the documents were hand delivered or posted, the conduct "is sufficiently proximate in time and space to the trial of proceedings".
There was no evidence to contradict the evidence Ms Miller gave in the substantive proceedings, that FASS (NSW Forensic and Analytical Science Service) is one of the five networks within NSW Health Pathology. There is no conceivable benefit to the Respondent or its officers to intentionally identify the Respondent by the wrong name. The only inference that can reasonably be drawn is that the Respondent was unclear as to whether the relevant agency for the purposes of the GIPA Act was FASS or NSW Health Pathology.
Mr Turner has not proved beyond reasonable doubt that any person is guilty of contempt in the face of the Tribunal or otherwise.
[9]
False statements of witnesses
Emails setting out the searches which Ms Black had undertaken was Annexure B to her affidavit of 8 July 2016. At paragraph 8 of that affidavit, Ms Black refers to Annexure B as a "five page printed email exchange dated 8/12/2015 and titled 'RE: GIPA -search terms and documents'. At the top of the first and second pages of that document there is a printed receipt sticker with the number C2016000179 and the date of 10/06/2016 typed underneath. On the third, fourth and fifth pages, the receipt number is hand written at the top of the page and there is no date.
Mr Turner alleges that the third, fourth and fifth pages of Annexure B are "falsified (replaced) documents" and that the Respondent has concealed the originals. That inference can be drawn, he says, because the internal receipt number was 'penned in' as opposed to the required typed receipt sticker being attached. Mr Turner refers to evidence Ms Black gave about this issue when he cross-examined her during the substantive hearing. With the assistance of a clarifying question from the Tribunal, Ms Black gave evidence that there was no significance in the number being typed as distinct from hand-written.
Mr Turner also cross examined Ms Miller about this issue even though Annexure B was not attached to her affidavit. She said that she did not know what the numbers on the top of the emails represent.
Mr Turner has not explained how the discrepancy in the way the receipt number was recorded demonstrates that the emails are false. I find that neither the difference in the way the number was written nor the fact that there was no date under the handwritten numbers support a finding that any part of Annexure B has been falsified.
The evidence that Mr Turner has provided does not establish beyond a reasonable doubt that Ms Black, or anyone else, has falsely sworn to matters which have the actual or inevitable intent or consequence of frustrating or obstructing the proceedings.
[10]
False submissions and failure to correct false statements
I understand Mr Turner to be alleging that the Respondent made false submissions to the Tribunal.
The Tribunal in the substantive proceedings found that Mr Turner had a reasonable basis for believing that further material falling within the scope of his access application had not been supplied. That finding was made because the Respondent said in its reasons for decision that, on 5 May 2016, it supplied certain information to its officers to use when carrying out further searches. The Tribunal found at [59] that "the specific search terms referred to in the Respondent's reviewable decision … were not in fact utilised by the Respondent": Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at [52] - [59]. In particular, despite Mr Turner saying that the altercation with Troy Clough occurred on 29 May 2008, not 27 May or 30 May, there was no evidence that anyone was asked to focus their searches on 29 May 2008. The Tribunal sent the matter back to the Respondent to conduct additional searches based on the information in [55] of its decision.
The Respondent says that it has now conducted those searches and provided evidence documenting the steps it has taken to find the information. It is not appropriate for me to take this evidence into account when considering the contempt application and I have not done so.
I understand the alleged 'false submission' to be that the Respondent stated in its decision in response to the GIPA application that it had supplied certain information to its officers to use when carrying out further searches but that the evidence given by the officers did not reveal that they had used all that information. I am not satisfied beyond a reasonable doubt that the Respondent did not provide all the information to its officers. It is open on the evidence to conclude that the information was provided but not used. Consequently, Mr Turner has not proved beyond reasonable doubt that a false submission was made.
The Respondent concedes that its instructing officer was present during the proceedings and did not intervene to correct anything a witness or the Respondent's representative said.
Mr Turner has not established beyond reasonable doubt that any false submission was made or any false evidence was given. In those circumstances, no-one has failed to intervene to prevent that from happening.
[11]
Other misconduct
Mr Turner alleges that various unnamed officers of the Respondent, as well as its representative concealed information or falsified documents and argued the case based on the alleged false or illegal documents. To the extent that this allegation refers to matters I have not already addressed, it has not been particularised. In those circumstances I am unable to make any findings about it.
[12]
Orders
My view is that no person named or identified by Mr Turner is guilty of contempt either in the face or hearing of the Tribunal or otherwise. Consequently I make the following orders:
The Tribunal declines to exercise any power under s 199 of the District Court Act 1973 (NSW).
The Tribunal declines to refer any allegations of contempt to the Supreme Court.
[13]
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: 14 June 2017