Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188

CITATION: Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188 DIVISION: Retail Leases Division APPLICANT PARTIES: Daintree Cafe Pty Limited RESPONDENT Jacfun Pty Limited FILE NUMBER: 015117 HEARING DATES: 13/08/02 SUBMISSIONS CLOSED: 08/13/2002 DATE OF DECISION: 09/30/2002

BEFORE: Molloy GB - Judicial Member APPLICATION: Contempt MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Riddick v Thames Board Mills Ltd [1997] QB 881 Ainsworth v Hanrahan [1991] 25 NSWLR 155 Samad v District Court [2002] HCA 24 (20 June 2002) CASES CITED: Klewer v District Court of NSW CA40801/97 [1998] NSWSC 396 Registrar of the Court of Appeal v Maniam (No 1) [1991] 25 NSWLR 459 Schot v Barclay [1997] (2 Cr App R 383) Pelechowski v Registrar, Court of Appeal [1999] HCA 19 APPLICANT REPRESENTATION: P Kintonimas, barrister RESPONDENT M Deutsch, solicitor ORDERS: Orders made on 13/08/02; 1 The reference be and is hereby dismissed; 2 No order as to costs

BACKGROUND 1 By Information filed in this Tribunal on 30 November 2001 the Applicant as Lessee sought certain relief under the Retail Leases Act in relation to its tenancy of certain premises at Darling Harbour owned by the Respondent. 2 During the course of the matter, the Applicant issued to the Sydney Harbour Foreshore Authority (the "Authority") a Summons to Produce Documents. The Summons was issued 18th February 2002, served upon the Authority and the Authority produced to the Tribunal documents pursuant to paragraphs 1-6 of the Summons on 11 March 2002. 3 The matter was before me on 11 March 2002 and the Authority objected to the production of any documents pursuant to paragraph 7 of the Summons. Argument on that aspect was deferred to a later date, but in the meantime the Applicant took steps to transfer the whole of the proceedings to the Supreme Court. The documents requested under paragraph 7 were not produced by the Authority. All documents pursuant to paragraphs 1-6 remained in the custody of the Tribunal. COMPLAINT 4 By letter from its solicitors dated 14 June 2002, the Authority complained to the Registrar of this Tribunal about the publication of an article in the Sydney Morning Herald on 11th March 2002 entitled "City's great red hope still locked up with nowhere to go", which was printed at pages 21-22. This article related to the demised premises, the Sega World Entertainment complex, the area styled Darling Walk, the Darling Harbour Authority, the Authority and the proceedings between the Applicant and the Respondent. There is no need to analyse the article. Suffice it to say that the Authority, through its solicitors, expressed its extreme concern that the documents produced by it to the Tribunal pursuant to the said Summons may have been obtained by the Sydney Morning Herald and may have been used in the writing of the article. 5 The complaint letter dated 14 June 2002 stated that the solicitors were instructed that: "The original source of the documents used for the article is likely to be the documents produced to the Tribunal by our client pursuant to the Summons, and/or documents produced to the Tribunal pursuant to a similar Summons issued by the Applicant to the Respondent in (these) proceedings …" 6 The letter went on to state that the Authority: "is distressed at the potential use of sensitive and confidential documents produced by it to the Tribunal, as a non-party to the proceedings, being used in this manner." 7 The letter observed that no grant of access had been granted to persons other than the parties to the proceedings and stated that "in those circumstances, it seems to (the Authority) the most likely way in which the documents could have been provided to the Sydney Morning Herald is through a party allowed legitimate access to the documents." 8 The letter went on to state that the solicitors had advised the Authority "that if documents produced to the Tribunal pursuant to a Summons had been released to a newspaper by purpose totally collateral to the Tribunal proceedings, that may well constitute contempt of the Tribunal" and they referred to Riddick v Thames Board Mills Ltd [1997]QB881 and Ainsworth v Hanrahan [1991] 25NSWLR 155. 9 The letter went on to state that it was "apparent from a consideration of the article that, to the extent that documents produced to the Tribunal have been supplied to the newspaper, it is not for a purpose connected with the conduct of the proceedings." 10 It was alleged that Riddick was authority for the general rule that documents produced on discovery or by way of order for production are produced subject to an implied undertaking that they are not to be used for any purpose collateral to the proceedings; and that Ainsworth was authority for the proposition that it is not necessary that there be an element of bad faith or deliberate impropriety in the disclosure of the documents – any purpose not connected with the conduct of the litigation will be regarded as collateral and improper. On those authorities it was suggested that: "A person in breach of an undertaking to a Court (or a Tribunal) will be held in contempt, unless any reasonable excuse for the breach of the undertaking can be provided" and the Solicitors then referred to Section 131(1)(j) of the Administrative Decisions Tribunal Act 1997 ("the Act"). 11 The solicitors then suggested "that breach of the implied undertaking regarding the proper use of documents produced to the Tribunal, if established, represents a contempt of the Tribunal and a matter capable of being reported to the Supreme Court under Section 131 of the Act." 12 Their letter then goes on to make the following statement: "(the Authority) requests that you take all appropriate steps to protect its position. We also ask you to attend to this request with urgency, and notify the parties of your decision in this regard, as our client understands that the Sydney Morning Herald intends to publish further articles purporting to make use of the same documents obtained by it for use in writing the article." 13 The purpose of setting out the above details is that it is important to understand the terms of the formal complaint made by the Authority. SECTION 131 14 This section is contained in Part 2 of the Act which details with 'Other Provisions'. The Section gives power to the Tribunal to report various categories of matters to the Supreme Court. Sub-Section (2) provides that if the Tribunal reports a specified matter to the Supreme Court under Sub-Section (1), that Court 'may deal with the matter if it were a contempt of the Supreme Court'. However, a person is not liable to be punished for contempt under this sub-section if the person establishes that there was a reasonable excuse for the act or omission concerned. 15 It is important to recognise at the outset that the various categories or classes of matters caught by Section 131(1) are categories or classes of matters that are capable of amounting to contempt such that if there is a referral to the Supreme Court, the category or class, if proven, would be capable of amounting to contempt of that Court. 16 There is no need to trawl through every sub-section of Section 131(1). The categories or classes of conduct referred to in each of those sub-sections would, it seems to me, if proven amount to contempt if the proceedings were in the Supreme Court. There is a similarity between the categories or classes in that regard to the contempt provisions of the Industrial Relations Act 1996, Section 180, where the offensive conduct can amount to contempt "only if the same conduct in relation to the Supreme Court would be contempt of the Supreme Court". 17 The catch-all sub-section is section 131(1)(j) which provides that: "If a person does any act or thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court" such that in those circumstances the Tribunal may report that matter to the Supreme Court. 18 The reference to the Registrar of this Tribunal by the Authority is a reference alleging a breach of Section 131(1)(j). The alleged conduct complained of is said to fall, as I understand it, within that sub-section. PROCEDURE 19 Upon receiving the reference from the Authority through its Solicitors, the Registrar issued a Notice to the Applicant to Show Cause why the Tribunal should not exercise its powers under Section 131 to refer the matter to the Supreme Court. There is no form for such a Notice. In this case the Notice was prepared by the President of this Tribunal in conjunction with myself. No objection was taken to the form of Notice by the Applicant and for ease of reference and future guidance a copy of the Notice is appended to this Judgment. 20 There may well be cases where a referral to the Registrar for possible action pursuant to Section 131(1) may be regarded as having no substance, being without merit or being frivolous or vexatious. In those circumstances it seems to me that the Registrar would not, upon advice, issue a Notice. This, however, was not the case here. 21 The Notice was served upon the Applicant, the Respondent and the Authority. 22 On its return day, the Applicant appeared represented by Counsel, the Respondent appeared through its Solicitor but there was no appearance by or on behalf of the Authority. The Respondent appeared as a matter of courtesy to the Tribunal and I indicated at the outset that, unless the Respondent wished to make any submissions, the Respondent could be excused – the Respondent did indicate that it did not wish to make any submissions. 23 Consequently, the only appearance was on behalf of the Applicant to whom the Notice was addressed. OBSERVATIONS 24 Under this heading I propose to set out some preliminary observations relating to the conduct and law as I see it. Firstly, absent an appearance by the referring party (the Authority in this case) it is difficult to properly address the issues raised. It may well be that in some circumstances the factual matrix surrounding the reference or one of the sub-sections in Section 131(1) is so obvious on its face such that the Tribunal would have no difficulty in addressing the issues with clarity. In this case however the alleged contempt was not clear. The moving party (the Authority) was not before the Tribunal to assist it and I agree with the submission of Counsel for the Applicant that the Tribunal would rarely move on its own motion, although one can foresee circumstances where the facts or circumstances were so clear that the Tribunal could itself exercise its referring power. 25 Secondly, the reference by the Authority was not particularised. Indeed, the primary letter dated 14 June 2002 used words like: 'the original source of the documents used for the article is likely to be the documents produced to the Tribunal by (the Authority) pursuant to the Summons …."; And: '… that if documents produced to the Tribunal pursuant to a Summons have been released to a newspaper …." (my italics) 26 Although the Sydney Morning Herald article was appended to the complainant's letter, it is certainly not clear from the article from which documents produced to the Tribunal the writers of the Article could have drawn the information/facts set out in the article. Matters involving contempt whether contempt of this Tribunal or contempt of a Court, are criminal matters, must be particularised with precision and must be proved beyond reasonable doubt. 27 There was a bundle of material produced to the Tribunal by the solicitors for the Authority, the solicitors for the Respondent and the solicitors for the Applicant. Some of this material, it was alleged in correspondence, amounted to an admission by the Applicant that it had breached the implied undertaking to the Tribunal. It was said, for example, that the admissions arose out of this paragraph in the Applicant's solicitor's letter to the solicitors for the Authority dated 14 June 2002: "Needless to say, my client is not aware of all the sources relied upon by The Sydney Morning Herald in preparing its article. However, it regrets that documents from its personal records sighted by the journalists in question may have included copies of a small number of documents obtained by my client in the course of this proceeding." 28 I do not regard that as an admission. But even if it was and somehow it could be said to have amounted to a plea of "guilty", there is an absolute overriding duty, for this Tribunal and the Court to be satisfied that the facts are such as would support such a plea. If that were the case (which it is not) then I can make it absolutely clear: I am not satisfied by any means that the facts as put before the Tribunal in correspondence would support any such plea. 29 Section 131(1) does not in its terms require or oblige this Tribunal to send on to the Supreme Court any matter within the terms of that Section. The key word is "may" – the Section empowers the Tribunal to report various matters but does not oblige the Tribunal so to do. The use of the word "may" in statute is generally regarded as facultative. It must be that one should start from the premise that the parliamentary draftsman and the parliamentarians when voting for the legislation knew what they were doing and recognised the difference between "may" on the one hand and "must" and "shall" on the other. It may be that in looking at a statute there may be some necessary implication to be drawn from the statutory context that there was no discretion. That is not the case when looking at Section 131. Support for this view is derived (if support is needed) from Samad v District Court [2002] HCA24 (20 June 2002) where the High Court held that the trial judge had erred in construing the words "may cancel" when considered in relation to the power of a licensing authority to cancel a clinic's license to supply methadone as the statute did confer a discretion on the Director-General of the Department of Health and the District Court on review. The trial judge and the Court of Appeal had held that the phrase "Director-General may suspend or cancel a licence" in the context of the statute as not permitting the exercise of any discretion once a ground for suspension or cancellation was made out. The High Court said that there was such a discretion and therefore the word "may" was in fact to be given its full force as facultative, not mandatory. 30 In the context of proceedings for contempt it is important, in my view, that the Tribunal be satisfied that the alleged contempt is of such a grave, serious and weighty nature that would on balance require the Supreme Court to do something positive about it rather than treating the conduct as technical contempt which it would be unlikely to attract a penalty (see, for example, Klewer v District Court of NSW CA40801/97 [1998] NSWSC396. 31 Because the Supreme Court is required to deal with a reported alleged contempt as if it were an alleged contempt of the Supreme Court (Section 131(2)) then it seems to me that the class or category into which the alleged conduct fell within Section 131(1) would have to satisfy the requirements for contempt at common law except where those requirements under Section 131(1) impose some additional element. 32 In Registrar of the Court of Appeal v Maniam (No. 1)[1991] 25NSWLR 459, the Court of Appeal considered the appropriate procedure to be adopted in relation to references to the Supreme Court by District Court judges pursuant to District Court Act Section 203. That case is authority for a number of propositions: (a) An alleged contemnor is not compelled to say anything (see Kirby P at 462-465, Mahoney JA at 472A and Hope AJA at 480D – See also Schot v Barclay [1997] (2Cr App R 383); (b) The alleged contemnor should be appraised of the alleged contempt and should be given the opportunity to be heard before the Court made any decision to refer the matter on to the Supreme Court (see Mahoney JA at 469 and 470, Hope AJA at 480). Indeed, a denial of the right to be heard before making a decision to refer may well be a denial of natural justice; (c) The District Court Judge exercising the Section 203 power must be satisfied that it appears to that Judge that the alleged contemnor is guilty of contempt of that Court. As Hope AJA said at 480 in considering whether to make a reference under Section 203, the District Court Judge was required: "to make two decisions. First, to decide whether it appeared to him on his own view that (the alleged contemnor) was guilty of contempt of court, and secondly whether he should remit the matter to the Supreme Court." 33 As I read that passage, the District Court Judge has to form a positive view relating to the alleged contempt and then, as a separate discretion, decide "whether he should remit the matter to the Supreme Court". Clearly, Hope AJA regarded that as facultative, clearly not mandatory. In other words a District Court Judge may form the view that the alleged contemnor is guilty of contempt but in the circumstances exercise his discretion not to send the matter onto the Supreme Court. Mahoney JA at 469 said that there were three steps: firstly it must be alleged or appear to the District Court that the alleged contemnor is guilty of contempt of that Court; secondly the Judge must ordinarily afford to the person in question the opportunity of showing why, in the exercise of Section 203, the Judge should not refer the matter on to the Supreme Court for determination; thirdly, the Judge may in the exercise of the discretion given by Section 203, then refer the matter to the Supreme Court for determination. This procedure was noted without negative comment in the High Court by Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal[1999] HCA 19 at para 17. 34 Furthermore, it is important to also have regard to Section 131(2) which provides that if the Tribunal reports a matter to the Supreme Court under sub-section (1) that Court "may" deal with the matter as if it were a contempt of that Court. So, it seems to me, that there are two facultative hurdles to overcome for a "successful prosecution" for contempt of this Tribunal. The matter before me is not, of course, a prosecution – that would be a matter to be taken upon by the Prothonotary or Registrar of the Supreme Court if the Prothonotary or Registrar was so minded having regard to any reference from this Tribunal. But in order to get to that point it seems to me that this Tribunal would need to be satisfied that there were sufficient facts and circumstances put before it in admissible form that were of a sufficient grave and weighty nature as to require a reference to the Supreme Court such that if satisfied that Court would not treat the conduct as a technical contempt which would be unlikely to attract a penalty. Contempt proceedings, if ultimately commenced, are criminal proceedings which can result in imprisonment. This Tribunal should act with great care and circumspection before exercising its discretion under Section 131(1) to refer a matter on to the Supreme Court. 35 Finally, it was plain from the material before me that if in fact, which was not admitted by the Applicant, the Sydney Morning Herald journalists had seen material that had been produced to this Tribunal and not otherwise available to the public, it only having been released for inspection by the parties, then such was inadvertent, done in ignorance and an apology and undertaking had been tendered to the apparent satisfaction of the Authority. After all, the Authority did not appear on the return date of the Notice to Show Cause and it would be not unreasonable to assume that the Authority did not only not seek to be heard in relation to the reference but also was satisfied by the apology and undertaking. In those circumstances, even if the alleged conduct complained of had been proved to the relevant standard of proof, it seems to me that upon a referral to the Supreme Court no penalty would have been imposed and that conclusion is yet another reason for the exercise of discretion in favour of the Applicant. 36 At the hearing I indicated to the parties that I would dismiss the proceedings and publish my reasons. The above are my reasons and I make the following consequent orders: 1. The reference Notice to Show Cause is dismissed. 2. No order as to costs. ADMINISTRATIVE DECISIONS TRIBUNAL