Land and Environment Court New South Wales Medium Neutral Citation: Jeray v Blue Mountains City Council [2011] NSWLEC 28 Hearing dates: 31 January 2011, 1 February 2011, 4 February 2011 Decision date: 04 March 2011 Before: Craig J Decision: 1. The respondent is acquitted of each of the charges that are the subject of the statement of charge appended to the applicant's notice of motion of 1 October 2010 2. The applicant's notice of motion dated 1 October 2010 is dismissed 3. The applicant is to pay the respondent's costs of the notice of motion dated 1 October 2010 in so far as that notice of motion charged the respondent with contempt 4. The exhibits may be returned Catchwords: PROCEDURE:- contempt - what constitutes - failure to produce a single document under notice to produce - distinction between notice to produce under UCPR 21.10 and UCPR 34.1 - whether failure to produce documents contempt - whether failure to produce has same effect as failure to comply with subpoena UCPR 33.12 - no equivalent provision for notice to produce - failure to prove beyond reasonable doubt that failure to produce was not casual, accidental or unintentional - contempt not proved Legislation Cited: Civil Procedure Act 2005 Land and Environment Court Rules 2007 Local Government Act 1993 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 Environment Protection Authority v Pannowitz (No.2) [2006] NSWLEC 797; (2006) 153 LGERA 126 Jeray v Blue Mountains City Council [2010] NSWLEC 123 Jeray v Blue Mountains City Council [2010] NSWLEC 139 Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 Mosman Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 Norris v Kandiah [2007] NSWSC 1296 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2006] NSWSC 831 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Spencer Motors Pty Ltd v L&C Industries Ltd (1982) 2 NSWLR 921 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Category: Principal judgment Parties: Ivan Jeray (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: N/A (Applicant) I J Hemmings (Respondent) Solicitors: Self-represented (Applicant) Marsdens Law Group (Respondent) File Number(s): 40517 of 2010 Judgment 1Ivan Jeray commenced proceedings in this Court against Blue Mountains City Council ( the Council ) in June 2010. Mr Jeray is a self-represented litigant. 2By his amended statement of claim, Mr Jeray seeks some seven declarations. Those declarations are to the effect that the Council has breached a number of provisions of the Local Government Act 1993 by failing to provide access to documents which Mr Jeray claims an entitlement to inspect. The relief that he seeks is also directed to establishing breach on the part of the Council of provisions of the Local Government Act having regard to the manner in which it keeps and maintains its records. That brief summary does not reflect the detail of his claim but is a sufficient description of his principal proceedings for present purposes. Those proceedings have not yet been heard. 3By notice of motion dated 1 October 2010, Mr Jeray seeks a number of orders directed to the production of documentary evidence said to be relevant to his principal claim for declaratory relief. Events since 1 October have addressed all but two of the substantive orders that he seeks by his notice of motion. The outstanding orders are orders by which Mr Jeray seeks two declarations that the Council be found guilty of contempt of court. Imposition of a penalty is sought by reason of the contempt that is alleged. 4It is Mr Jeray's motion charging contempt that is addressed in this judgment. It is convenient to describe proceedings so addressed as the contempt motion. 5As will appear, the contempt ultimately alleged by Mr Jeray is the failure by the Council to produce, in response to a notice to produce issued by him on 16 September 2010, an email dated 8 June 2010 from the Council's General Manager, Mr Greenwood, to the Council's Executive Officer, Ms Julie Bargenquast ( the 8 June email). That email attached a complaint from Mr Jeray dated 7 June 2010 which was, in turn, forwarded to the Council by way of email. A copy of the 8 June email was not produced to Mr Jeray until 3 February 2011, that is, during the hearing of the contempt motion. 6Arising from the manner in which Mr Jeray framed his final submissions on the contempt motion, the issues for determination by me were - (i) whether the 8 June email was a document, the production of which was required by the notice to produce filed by Mr Jeray on 16 September 2010; (ii) assuming that production of 8 June email was required, whether, in the circumstances identified in the evidence, the failure to produce it constituted contempt of court; and (iii) if contempt is proven, the penalty that should be imposed upon the Council. 7For reasons that follow, I have determined that Mr Jeray has not proved to the requisite standard that the Council's failure to produce the 8 June email prior to 3 February 2011 constituted contempt of court. By reason of that determination, it is unnecessary to consider the question of penalty. History of proceedings and notice to produce 8Mr Jeray commenced his principal proceedings on 30 June 2010. At that time he filed a statement of claim and immediately sought ex parte relief by way of an order directed to the confiscation of two development application files held by the Council. His application was, in effect, for an Anton Piller order ( Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). Mr Jeray's application was refused by Biscoe J and further directions made for service of documents upon the Council ( Jeray v Blue Mountains City Council [2010] NSWLEC 139). 9Since then, the matter has been in the Court's list on several occasions, principally concerning interlocutory applications by Mr Jeray seeking the production of documents and, in particular, addressing concerns expressed by Mr Jeray that documents produced or made available to him are incomplete. One such application was determined by Pepper J on 9 July 2010 ( Jeray v Blue Mountains City Council [2010] NSWLEC 123). Her Honour dismissed a motion for production of documents then sought by Mr Jeray, essentially because the documents sought were documents alleged to have been removed from Council files but which had not been identified. In the course of her judgment, her Honour recorded (at [16]) information provided by the Council's solicitor to the effect that the Council was unable to identify any missing documents but that, in deference to Mr Jeray's assertion, enquiry in that regard was ongoing. It is this statement that prompted Mr Jeray to seek further documents from the Council. 10On 16 September 2010, Mr Jeray filed in Court and served on the Council a notice to produce. The notice was an adaptation of the form approved under UCPR 34.1. The notice required, in terms, that the following "records" be produced to the Court: "Blue Mountains City Council (Respondent) You are required to produce the following records to the court: 1 All records of the enquiries conducted by Blue Mountains City Council into the allegations of missing records from the Council's files that are the subjects of this legal matter. This includes the enquiry's reporters, investigators, methodology, findings and lists of any records found missing with reasons from the subject files. Note: Mr Baird, on behalf of the council, informed the Court that Blue Mountains City Council had instituted its own enquiries into the allegations of missing records. He told the Court that to date his instructions are that no documents are missing but that the enquiry is ongoing: Jeray v Blue Mountains City Council [2010] NSWLEC 123 at [16]." The notice required that the documents be produced to the registry of the Court at 9.00am on 24 September 2010. 11By letter dated 21 September 2010, the Council wrote to the Registrar of the Court in response to the notice to produce. Apart from the notice itself there was then produced copies of letters dated 11 June 2010 and 15 June 2010 respectively, requesting that Mr Jeray indicate records claimed to have been removed from Council's files so as to assist investigations within the Council into his complaints. The fourth document is a record of the return of the Council's letter of 15 June 2010, the acceptance of which is recorded has having been declined by Mr Jeray. The contempt charge 12Attached to the contempt motion was a statement of charge, prepared for the purpose of complying with Pt 55 r 7 of the Supreme Court Rules 1970. That statement charged contempt in the following terms: "1 Blue Mountains City Council misinformed Pepper J during the notice of motion hearing of 9 July 2010 that the Council was reviewing and had instituted its own inquiries into the alleged missing records from its development applications files, inclusive of development related records, for 108-120 Narrow Neck Road, Katoomba and 85-99 Burrawang Street, Katoomba, when the Council's own enquiry has in fact not occurred. Alternatively 2. Blue Mountains City Council intentionally did not produce to the Court all records of its enquiries into the allegations of missing records from the above files, as required by the applicant's notice to produce to the Court, dated 16 September 2010. This includes the enquiry's reporters, investigators, methodology, findings and lists of any records found missing with reasons from the subject files." 13At the commencement of his submissions on the third and final day of hearing of the contempt motion, Mr Jeray indicated for the first time that he did not press the first of the two charges that was the subject of his statement of charge. He indicated that he would focus only on evidence directed to the second charge. As I have earlier indicated, that charge was, in turn, founded upon the failure to produce the 8 June email in response to the notice to produce issued on 16 September 2010. The limitation to that as founding the second charge was the limitation articulated by Mr Jeray in the course of making his final submissions. The evidence and the 8 June email 14Mr Jeray read four affidavits and tendered a number of documents in support of the contempt motion. In the course of the hearing, he also examined three employees of the Council, namely its General Manager, Mr Robert Greenwood, Ms Marlene Jones, an Executive Assistant and the Council Executive Officer Ms Julie Bargenquast. In light of the limited basis upon which Mr Jeray ultimately sought to support his contempt motion, much of this evidence proved to be irrelevant and little of it was referred to in final submissions. I will endeavour to identify that evidence having potential relevance to the case finally advanced by Mr Jeray. 15As I have earlier indicated, by email sent on 7 June 2010, Mr Jeray complained to the Council about the conduct of Ms Jones. That complaint alleged that Ms Jones had "removed non-confidential documents" from files concerning properties known as 108-120 Narrow Neck Road, Katoomba and 85-99 Burrawang Street, Katoomba respectively. The email was not only sent to the Council's corporate email address, but also to a number of individuals, including Mr Greenwood. 16Mr Greenwood attended the hearing of the contempt motion in response to a subpoena served upon him at the request of Mr Jeray. He was called to give evidence and examined by Mr Jeray. Mr Greenwood had not sworn any affidavit in connection with the proceedings and from the examination of him by Mr Jeray, I infer that there had been no prior discussion between them as to the evidence that Mr Greenwood would give. 17Mr Greenwood was questioned as to his actions following receipt of Mr Jeray's email of 7 June 2010. He recalled requesting the Executive Officer, Ms Bargenquast, to conduct a preliminary enquiry in relation to the complaint but did not recall whether he had referred the complaint to her on the date of receipt or the following day. His recollection was that the request for preliminary investigation was made when he called Ms Bargenquast to his office for that purpose. It was his recollection that there was no memorandum or other document recording referral of Mr Jeray's 7 June email to Ms Bargenquast. 18As I have already indicated, Ms Bargenquast is the Council's Executive Officer. One of her duties is described as being that of legal co-ordination. Relevant for present purposes, that function has included the briefing of solicitors retained by the Council for the purpose of litigation, including the provision to them of all relevant documents pertaining to that litigation. It was and remains the responsibility of Ms Bargenquast to provide to the Council's solicitors those documents, if any, necessary to respond to a notice to produce or subpoena served upon it. 19In the course of giving evidence on 1 February 2011, Ms Bargenquast was questioned by Mr Jeray as to the communication between Mr Greenwood and her concerning Mr Jeray's email of 7 June 2010. She recalled that the email had come to her from a number of sources. Her recollection was that she had first seen it when it was forwarded to her by Ms Jones. Whether she saw it on the day of its receipt or the following day she did not recollect. 20Following further questioning from Mr Jeray, Ms Bargenquast recollected a request from Mr Greenwood that the email complaint be discussed with him. She recalled that the email had also been referred to her by Mr Greenwood, but beyond that had no recollection of the contents of an email from Mr Greenwood. Following receipt of the complaint from a number of those to whom it was originally forwarded, she made enquiries of other members of staff, including Ms Jones, as to whether documents had been removed from the files identified by Mr Jeray. 21At the conclusion of evidence on 1 February and after all three Council witnesses had been excused from further attendance, Mr Jeray asked that, prior to the resumption of the hearing on 4 February, he be provided with a copy of any email passing between Mr Greenwood and Ms Bargenquast reflecting the request that his complaint be discussed. The Council agreed that if any such document was found, a copy would be provided to Mr Jeray. 22Upon resumption of the hearing on 4 February, I was informed that the 8 June email had been found and a copy provided to Mr Jeray on 2 February. The email is recorded as having been sent from Mr Greenwood to Ms Bargenquast at 10.09am on 8 June 2010. It reads as follows: "Hi Julie, Could you please deal with this complaint in accordance with Organisational procedures! Robert." 23Beneath Mr Greenwood's full name, title and contact details is a heading that reads "Original Message". Below that heading is Mr Jeray's email of 7 June 2010. 24Ms Bargenquast was further examined by Mr Jeray on 4 February. She explained that Mr Jeray's complaint of 7 June together with documents or letters directed to investigation of the complaint, including those earlier identified as having been sent to Mr Jeray on both 11 and 15 June, had been placed in a file known as the "Serious and Substantial Complaints File". That file contained all documents concerning complaints against staff members. It is this file to which Ms Bargenquast had recourse when providing documents in response to the notice to produce dated 16 September 2010. In addition, electronic documents generated in response to the complaint of the kind kept in the file were recorded in the Council's electronic records management system. The 8 June email was not recorded in that system. 25Following the request made by Mr Jeray on 1 February, Ms Bargenquast indicated that she had searched the Council's email archives system and it was there that she had discovered the 8 June email. She explained that a copy had not been kept in the Serious and Substantial Complaints File or its electronic equivalent because it was seen by her as a work instruction rather than a complaint in itself or evidence of any investigation undertaken in response to the complaint. Applicable principles Purpose served by contempt proceedings 26The High Court has made clear that the underlying rationale for exercise of the power to commit a party or person for contempt is the necessity "to uphold and protect the effective administration of justice" ( AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 107). As Kirby J observed in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at [149]: "Unless courts are seen to respond firmly to deliberate defiance of their Orders, their effectiveness in the authoritative determination of disputes of law would be undermined." 27An allegation that a party is guilty of conduct that interferes with or seeks to impugn the effective administration of justice is a serious allegation. Disobedience of a court order, if established, requires a firm response. However, a consequence of the seriousness with which a court must view the integrity of its orders by requiring obedience to them is that the standard of proof of acts or omissions said to constitute contempt requires careful consideration. It will be remembered that the second statement of charge upon which Mr Jeray relies alleges an intentional failure to comply with the notice to produce dated 16 September 2010. Standard of proof in contempt proceedings 28Imposition of any punishment for contempt of court, including the imposition of a fine, is a consequence of a conviction of the person or entity charged with contempt. The punishment that may be imposed by the Court for contempt is provided for by Pt 55 r 13 of the Supreme Court Rules . Those rules are, in turn, made applicable to proceedings for contempt in this Court by LECR 6.3. The fact that the rule refers to punishment and identifies the nature of that punishment as including a fine, or, in the case of an individual, committal to a correctional centre, points to the standard of proof required for conviction as being the criminal standard. Indeed, a conviction of contempt of Court has been described as a conviction for an offence, criminal in nature ( Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314; Environment Protection Authority v Pannowitz (No.2) [2006] NSWLEC 797; (2006) 153 LGERA 126 at [27]). 29The standard of proof required in proceedings for contempt was discussed in the judgments of the High Court in Mudginberri . That discussion turned upon the distinction drawn in the cases between civil contempt and criminal contempt. The distinction was discussed in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ in Mudginberri in the following way (at 106): "Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as 'civil contempt'; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as 'criminal contempt': ... ". 30The extent to which any doubt remained from judgments in Mudginberri concerning the standard of proof in contempt matters, depending whether the contempt was classified as "civil" or "criminal", was dispelled by the further decision of the High Court in Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525. In the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ, the position that pertains is summarised in the following paragraph (at 534): "The differences upon which the distinction between civil and criminal contempt are based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt 'must realistically be seen as criminal in nature' [citation omitted]. The consequence is that all charges of contempt must be proved beyond reasonable doubt." 31The effect of the judgments of the High Court dealing with the standard of proof in contempt proceedings was more recently considered by the Court of Appeal in Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737. The leading judgment was delivered by Campbell JA (in whose judgment Handley AJA and Bell J agreed). His Honour determined that there was a mental element involved in contempt of court and thus it was necessary to consider what was involved when the contempt charge was a breach of a court order (at [62]). It is a breach of a court order that, as I understand it, Mr Jeray alleges in his contempt motion by alleging disobedience of the notice to produce issued by him on 16 September 2010. 32In Markisic , Campbell JA referred to the discussion in Mudginberri concerning the requirements to establish contempt by reason of breach of a court order. Following that consideration his Honour said (at [64]): "As I read their Honours, their view is that the imposition of punishment is justified for a breach of a court order only if there is wilful disobedience, in the sense of deliberate action or inaction that is not casual, accidental, or unintentional. That conclusion applies regardless of whether the contempt involved in the disobedience of the order is classified as a civil or a criminal contempt. Thus, proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional. Consistently with Witham , that needs to be proved beyond reasonable doubt." 33In light of these statements of principle, it will be necessary to consider whether the notice to produce filed by Mr Jeray was a court order, a failure to comply with which is capable of constituting contempt and whether, assuming it has such consequence, Mr Jeray has established to the requisite standard that the failure to produce it was deliberate and not casual, accidental or unintentional. The notice to produce: failure to comply susceptible to contempt? 34As the statement of charge makes clear, the foundation for the only charge upon which Mr Jeray now relies is the failure by the Council to produce the 8 June email in response to the notice to produce dated 16 September 2010. The underlying assumption implicit in the charge framed this way is that failure to comply with the notice to produce is tantamount to a failure to comply with an order of the Court. It seems to me that this underlying assumption may not be correct. 35I have earlier recorded the fact that the notice to produce was issued under UCPR 34.1. This rule allows a party by notice served on the other party to produce to the Court "any specified document or thing". It is not, in terms, a document issued as an order of the Court. The language of the rule is to be contrasted with the provisions of UCPR 33.2(1) dealing with the issue of a subpoena and the definition of "subpoena" contained in UCPR 33.1. 36The manner of compliance with a notice to produce is identified in UCPR 34.1(2), while the obligation to produce documents in accordance with the notice is stated in UCPR 34.2(1), subject to the important qualification "(un)less the court orders otherwise". Pt 34 does not address the consequence for a party upon whom a notice to produce is served but who does not produce documents in accordance with that notice. 37In this regard the provisions of Pt 34 are again to be contrasted with the provisions of Pt 33, as the latter deals with the issue of subpoenas. UCPR 33.12(1) provides, in terms, that failure to comply with a subpoena without lawful excuse constitutes a contempt of court. There is no comparable provision in Pt 34. 38The comparison between these two parts of the Uniform Civil Procedure Rules 2005 ( the Rules ) tends to indicate that something more is required to constitute contempt than failure to comply with a notice to produce issued under UCPR 34.1. That "something more" would lie in the making of a court order consequent upon the failure to comply with the notice. By way of example, such an order could be made under s 68 of the Civil Procedure Act 2005. 39The consequence of non-compliance or inadequate compliance with a notice to produce issued under UCPR 34.1 was considered by Palmer J in Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2006] NSWSC 831. After contrasting the provisions of Pts 33 and 34 of the the Rules his Honour said: "24 If a party, without lawful excuse, fails to answer a notice to produce properly, that party does not breach an order of the Court; there is no equivalent in UCPR 34 of UCPR 33.12(1) making failure to answer a notice to produce without lawful excuse punishable as a contempt. 25. A party who has served a notice to produce returnable before the Registrar and who is dissatisfied with the adequacy of the answer made is not left without remedy. The dissatisfied party may serve on the other party a subpoena in the same terms as the notice to produce, thus setting in motion the machinery for investigation before the Registrar of the adequacy of an answer under UCPR 33. But the dissatisfied party need not volunteer for another ride on the merry-go-round. On the return of the notice to produce before the Registrar, the dissatisfied party may immediately seek an order under CPA s. 68 for better production of documents without service of a subpoena: the Registrar, is satisfied that the answer has been inadequate, may then simply make an order under s. 68 to the effect that the notice to produce be answered properly." 40The observations of Palmer J in that case were not essential to the decision that his Honour ultimately made. So much is acknowledged at [19] of the judgment. Nonethless, his Honour's observations are, with respect, persuasive and cogently reflect the manner in which I would approach application of the rules and legislation to which he refers. 41I therefore conclude that even if an incomplete or inadequate response was made to Mr Jeray's notice to produce, a response so described does not constitute a contempt of court, as the notice itself is not an order of the Court. In submitting that non-compliance with the notice can amount to contempt, Mr Jeray relied upon the decision of Cooper J in CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1. There the Court was required to consider the effect of a notice to produce issued under O 33 r 12 of the Federal Court Rules 1979 (Cth). That rule was not expressed in the same terms as UCPR 34.1. Cooper J determined that, in regard to the terms in which the rule was framed, production was mandatory. It was to be equated to a subpoena and non-compliance with a subpoena would expose the party to whom it was directed to punishment for contempt. 42It seems to me that the decision in CCOM is distinguishable. It is not apparent that the context in which the rule was framed contained any equivalent of UCPR 33.12. Moreover, the provisions of O 33 r 12 state, in terms, that documents are required to be produced without the need for any subpoena for production. No such provision is contained within UCPR 34. 43Against the possibility that I am wrong in determining that failure to comply with a notice to produce cannot properly found a charge of contempt, I will proceed to determine whether the 8 June email was captured by Mr Jeray's notice to produce. Production of the 8 June email was required by the notice to produce 44It will be remembered from my earlier reference to UCPR 34.1 that a notice issued in conformity with the rule may require production of a "specified document or thing". What was "specified" in the notice to produce were records of enquiries conducted by the Council into the allegations of missing records from the Council's files. No specific document or documents is or are nominated. The terms of the notice further required that the records of enquiries to be produced were those related to missing records from files "that are the subjects [sic] of this legal matter". At the time at which the notice was served, only the original statement of claim dated 30 June 2010 had been filed but it had nominated as files relevant to the allegations of breach made by Mr Jeray those that pertained to the properties at 108-120 Narrow Neck Road and 85-99 Burrawang Street, Katoomba. 45It was submitted on behalf of the Council that the notice to produce did not meet the requirements for specificity stipulated by the rules. Reliance was placed upon the requirements of UCPR 21.10. A notice to produce issued in accordance with that rule relevantly enables production of a specific document or thing "that is clearly identified in the notice and is relevant to a fact in issue". 46That is not the rule pursuant to which the subject notice to produce was issued and served by Mr Jeray. While the requirements of UCPR 34.1(1) are that a specified document or thing be the subject of the notice, that specification is not circumscribed by the further requirement that the specific document be "clearly identified" in the notice. The distinction between the two types of notice for which the rules provide was discussed by Brereton J in Norris v Kandiah [2007] NSWSC 1296 at [3]. 47The specificity with which a document must be described in order to meet the requirements of UCPR 34.1 was considered by Barrett J in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869. After considering the observations of Brereton J in Norris, Barrett J said at (12): "12 The language used in rule 34.1 - 'specified document' - is different. The word 'specified' here means, in my view, the same as 'describe' or 'identify', so that a notice under rule 34.1 plays in relation to a party the role that is played under rule 33 by a subpoena in relation to a non-party. 13 The requirement under rule 33 is that a subpoena to produce documents 'identified' the document to be produced (see rule 33.3(4)(a)), that is, cut the document out from the universe of documents by some description or specification." 48The context in which general expressions are used to describe documents that are the subject of a notice to produce or subpoena is important in considering the adequacy of description of the documents sought ( Spencer Motors Pty Ltd v L&C Industries Ltd (1982) 2 NSWLR 921 at (929)). The context here is not only reference in the notice to the Council files that are the subject of proceedings but also the note that forms part of the notice referring to information given to the Court on 9 July 2010 identifying the enquiries that were being undertaken. 49Considered in this context, I am of the opinion that the 8 June email was a document required to be produced in accordance with Mr Jeray's notice. Although the email simply reflected the referral of the complaint from the General Manager to Ms Bargenquast, it was, in a sense, the initial step by which enquiries were instigated into Mr Jeray's allegation of missing documents. The 8 June email therefore constituted a record of the enquiry conducted by the Council. Failure to produce the 8 June email does not constitute contempt 50I have earlier identified the principles by which contempt of court is to be ascertained. These principles have been stated by me bearing in mind the way in which Mr Jeray has framed the statement of charge. It will be remembered from my earlier recitation of the charge upon which he now relies that the failure to produce the 8 June email is alleged to have been intentional. A charge, in those terms, seems to me to attract the principle that I have earlier recited and recently summarised by Campbell JA in Markisic . 51The formulation of the requirement that an applicant charging contempt prove beyond reasonable doubt that the breach "was deliberate and not casual, accidental or intentional" is said to be referable to punishable contempt as distinct from a technical breach of an order ( Mosman Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [82]). So much can, with respect, be accepted. However, where, as here, a contemnor is charged, in terms, within intentional failure to comply with an obligation, the formulation of the standard articulated by Campbell JA is appropriate and must be applied in the present case. 52The evidence given by Ms Bargenquast was clear. When called upon to respond to Mr Jeray's notice to produce on behalf of the Council, her source of reference was the Serious and Substantial Complaints File into which, so she understood, all documents relevant to enquiries seeking to respond to Mr Jeray's complaint had been placed. She also searched the Council electronic records management system for documents related to matters of that kind. The 8 June email was recorded in neither the file nor on that database. Moreover, the request from Mr Greenwood that she deal with the complaint was seen by her to be a work direction to commence the process rather than a document which, in itself, was part of that process. 53As I have also recorded earlier, Ms Bargenquast did not recollect that she had received the 8 June email from Mr Greenwood. It was only in response to the request made by Mr Jeray following her cross-examination on 1 February that she had searched the email archives system enabling her to identify the document. 54I am satisfied that Ms Bargenquast did use her best endeavours to locate the documents believed to be responsive to Mr Jeray's notice to produce. The failure to identify the 8 June email was clearly an oversight. Other than to record the fact that the initial step was taken by the General Manager on 8 June by referring the matter to Ms Bargenquast, the document does not otherwise provide any substantive information directed to the enquiries made into Mr Jeray's complaint. It is understandable that the email was not seen to be a record of enquiries made into his complaint. 55In his submissions, Mr Jeray asserted that Ms Bargenquast should not be believed in giving her evidence when explaining why it was that the 8 June email was not produced. However, she was not challenged in any questioning by Mr Jeray to suggest that she was being untruthful. In the absence of such a challenge I have no basis upon which to doubt her evidence. She was cross-examined at some length by Jeray on two occasions but on each of those I consider that she gave her evidence in a forthright manner and without any apparent equivocation. The failure to produce the email was not intentional, contrary to the charge that Mr Jeray had made. 56I conclude that Mr Jeray has not established beyond reasonable doubt that the failure to produce the 8 June email prior to 4 February 2011 was deliberate and not casual, accidental or unintentional. The Council will therefore be acquitted of the contempt as charged. Applications for recusal 57At the commencement of the hearing on 31 January, Mr Jeray made two applications. First, he sought that I recuse myself from the hearing of his proceedings. Secondly, he sought, once again, to have the hearing of his notice of motion adjourned. As will otherwise be apparent from this judgment, the latter application was unsuccessful. It is, however, to the first of his applications that these reasons are directed. 58Although not articulated in terms, the application for recusal was founded upon an assertion of apprehended bias. For reasons that will become apparent, the application was made because Mr I J Hemmings of counsel appeared for the Council on the hearing of Mr Jeray's motion. 59Mr Jeray indicated that he had viewed the Court's internet site. Through that site he had gained access to and read the address that I gave at the time at which I was sworn in as a judge of this Court on 2 March, 2010. In that speech I said (at [47]): "47 In the context of my work environment, no period of practice at the bar has been happier than my past seven years at Martin Place Chambers. It may be the great diversity and background of its members, it may be the mix of male and female practitioners, it may the diverse extracurricular interests the members of those chambers pursue which were but some of the factors contributing to the enjoyment of my time in those chambers. Whatever the reason, it is a most harmonious and congenial group of barristers, a number of whom I count among my friends." 60Having drawn attention to this paragraph of my address, Mr Jeray identified two further matters relevant to his application. He referred to information otherwise obtained that prior to my appointment to this Court I had been the head of Martin Place Chambers, a floor of practising barristers. The second matter of relevance is that throughout that time, Mr Hemmings had been and remains a member of those chambers. In light of those matters, Mr Jeray enquired of me as to whether Mr Hemmings was my friend. He indicated that his application for recusal was founded upon the association between Mr Hemmings and me as demonstrated by the matters to which he had referred. 61Following Mr Jeray's articulation of his application, I disclosed, in Court, the following matters: i. that Mr Hemmings had been a long time professional colleague; ii. that our association, as fellow legal practitioners, had included membership of the same chambers for seven years prior to my appointment to this Court; iii. that since my appointment to the bench in March 2010 my only contact with Mr Hemmings had been either as counsel appearing before me on behalf of litigants or, on a few occasions, when we had each attended meetings or functions of a professional nature involving a large number of legal practitioners who were also well-known to me; and iv. that since my appointment I have not visited Mr Hemmings nor been visited by him on a personal basis. Principles for recusal 62It is well settled that when a judge is requested to recuse himself or herself from the hearing or further hearing of a case, that question must be decided by the judge to whom the application is made ( Bainton v Rajski (1992) 29 NSWLR 539 at 544, 548). It is by reason of that principle that I determined the application made to me by Mr Jeray. 63The test to be applied when determining an application of the present kind is that stated by the High Court in Ebner v Official Receiver in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. In the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, the principle is stated as follows (at [6]): "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver ... or necessity ... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide [case citation omitted]. That principle gives effect to the requirement that justice should both be done and be seen to be done [case citation omitted], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial." The statement of the relevant principle in that way together with its expressed rationale has been confirmed by the recent decision of the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2. 64Application of the principle to a given set of facts or circumstances also requires consideration. That consideration is reflected by the plurality in Ebner where their Honours said (at [8]): "First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 65Important to the determination of Mr Jeray's application is an understanding of the knowledge that is to be attributed to the "fair-minded lay observer". In the context of the application for recusal made by Mr Jeray, knowledge concerning the operation of the legal system in this State and the appointment of judicial officers that can be attributed to the "fair-minded lay observer" is important to be considered. 66In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 the Court of Appeal was required to consider the refusal by a judge sitting in the Equity Division of the Supreme Court to recuse himself from hearing legal proceedings brought against two prominent Sydney law firms. The leading judgment was delivered by Priestley JA (with whom Hope and Glass JJA agreed) where his Honour approved (at 275) a statement by the trial judge expressed in the following terms: "I do not believe that any right-minded person who knows of the manner in which the legal profession in this State is organised, and who knows of the fact that, traditionally, the judges of this State have been appointed from the ranks of the practising members of the legal profession ... could reasonably suspect that a judge who, on occasion, over a reasonably long time as a practising member of the Bar, which period, in any event, expired over nine years ago, was retained, and instructed by, a member or members of a particular firm of solicitors on behalf of clients of that firm, was, by virtue of that fact alone, incapable of bringing an impartial and unprejudiced mind to the resolution of the issues in a proceeding to which that firm of solicitors, or a party of that firm of solicitors, may be a party." 67In his judgment in Raybos , Priestley JA cited the well known passage of Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 where the latter judge had articulated two matters of present relevance, namely - (i) that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that the judge will decide the case adversely to one party, and (ii) while it is important that justice be seen to be done, it is equally important "that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." 68Priestley JA then returned to the topic of judicial appointment, as it pertained to the operation of the principle of apprehended bias. He said (at 276): " ... that method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or less degree the counsel and solicitors who appear before them. Also when, as not infrequently happens, members of the legal profession are parties to litigation, it is inevitable that their cases will be decided by other members of the legal profession. It has long been accepted that a judge should not sit on a case involving a person with whom he has a connection which might in fact or in appearance affect his impartiality; when the judge's connection is less than that there is no reason why he should not sit." 69As the judgment of Priestley JA makes clear, the system of appointment of judges in this State, including the fact that such appointments are often made from the ranks of practising barristers, is acknowledged to be attributed to the "fair-minded lay observer". That knowledge must logically extend to an understanding that, from time to time, a litigant will be represented by counsel who occupied the same set of chambers as had the judge hearing the matter prior to that judge taking judicial appointment. That circumstance alone ought not, in either fact or appearance, give rise to the reasonable apprehension which the apprehended bias test addresses. 70An application for recusal in the context of former professional association between judge and counsel was considered by Campbell JA in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43. At [26] his Honour said this: "The ' actual circumstances of the case ' concerning the circumstance in which barristers share chambers is that, while it provides the opportunity for the sort of friendly relations to develop that are usual between professional colleagues, those colleagues can also be ones competitors. Sharing chambers also provides a means whereby the overhead expenses of a barristers practice can be shared but that in itself produces no more closeness of relations than arises from people who share a home unit building sharing some of the overheads of that building." 71His Honour's observations are, with respect, apposite to the basis upon which Mr Jeray makes his present application. While I had a long professional and friendly association with Mr Hemmings as a fellow practitioner, I had never engaged in any business or financial association with him and my social association did not extend beyond that ordinarily arising between fellow practitioners who encountered each other in chambers on an almost daily basis. While practising at the bar, Mr Hemmings had appeared in cases with me on some occasions while on others we were separately retained by opposing parties. To the extent that we each held shares in the company holding the lease of premises in which our chambers were located, that shareholding was common to all barristers who were members of those chambers. In any event, my shares in that company had long since been sold. I should also record that I shared chambers with Mr Hemmings for only seven of the thirty three years during which I practised at the bar. 72I have earlier identified (at [63]), by reference to the judgment of the plurality in Ebner , the manner in which the principle pertaining to apprehended bias is to be applied. Mr Jeray did not, in his submissions to me, identify how it was that my professional association with Mr Hemmings logically gave rise to an apprehension that I would not impartially determine the notice of motion before me. Mr Hemmings was doing no more than appearing before me as counsel for the statutory entity against whom Mr Jeray had instituted his proceedings. The failure to articulate this "second step", as it was referred to in Ebner , is important to be noticed. 73For all these reasons I was not persuaded that my professional association with Mr Hemmings was such that it might give rise in a "fair-minded lay observer" to a reasonable apprehension that I might not decide the proceeding before me on its merits. Consequently, I declined to recuse myself from hearing the matter in response to the application made to me at the commencement of the hearing. 74A further application that I recuse myself from continuing with the hearing was made by Mr Jeray on the third and final day of the hearing of his notice of motion for contempt. The circumstances in which that application was made must be briefly stated. 75I have earlier identified the circumstances in which the 8 June email was provided to Mr Jeray and subsequently included in the evidence upon which he sought to rely. However, for the purpose of addressing this second application for recusal, some further facts need to be stated. 76On 4 February when Mr Jeray was given leave to read the further affidavit to which the 8 June email was annexed, he indicated that not only would he rely upon that email for the purpose of his case but that he would not proceed to make submissions until Ms Bargenquast was called to enable him to further examine her. No prior notice of this position had apparently been given to the Council. Ms Bargenquast was then at work in Katoomba having been excused from further attendance on 1 February. Notwithstanding these circumstances, Mr Jeray was adamant in his claimed entitlement to question Ms Bargenquast further. 77In considering his application, I asked Mr Jeray why it was critical to his case that Ms Bargenquast be recalled. In particular, I enquired of him as to the nature of the evidence sought to be adduced from her in the event of her recall. Having made the enquiry, Mr Jeray requested that I recuse myself from the further hearing of the matter. As I understood his application, he asserted that by requiring him to answer such a question in the presence of the Council's legal representatives, I was providing them with an advantage that was inappropriate, apparently because they could have disclosed in advance with Ms Bargenquast the nature of the further questioning to which she might be subject in the event that I required her to be recalled. 78I indicated to Mr Jeray that I had posed the question because, save for the further affidavit that he had sworn and which I had allowed him to read, his evidence had closed with the consequence that considerable inconvenience and delay would be occasioned by further adjournment to allow Ms Bargenquast to attend. I pointed out that the email of 8 June was before me (having been annexed to the affidavit he had sworn on 4 February 2011) and the fact of its recent discovery was itself a matter that may be relevant to his case. The purpose of my question was to gauge the likely importance to Mr Jeray's case of any further evidence likely to be given by Ms Bargenquast. 79Mr Jeray declined to respond to my question. It was then that Mr Hemmings, on behalf of the Council, volunteered that arrangements would be made to have Ms Bargenquast brought to Court as soon as possible that day but necessitating an adjournment of about one and a half hours to allow this to occur. Ultimately, Ms Bargenquast did attend Court and she was further cross-examined by Mr Jeray. 80I did not consider that posing the question of which Mr Jeray complained might reasonably give rise to an apprehension of bias on my part, having regard to the principles that I have earlier discussed. The "fair-minded lay observer" is taken to have knowledge of the actual circumstances of the case giving rise to the application for recusal ( Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87. Relevantly, those circumstances would include: (i) the fact that the evidence in the proceedings had closed and Ms Bargenquast excused; (ii) that no advance notice had been given to the Council requiring the further attendance of Ms Bargenquast at Court; (iii) that further delay in the hearing of the proceedings would be occasioned by requiring her attendance on another day; (iv) the hearing of the motion for contempt had already been delayed and prolonged beyond the time that would ordinarily be taken to hear a matter of that kind; and (v) as an indulgence was being sought by Mr Jeray, some justification was appropriate to be sought so as to assess the potential significance of the further evidence to the case being made by Mr Jeray. 81Having regard to all the circumstances attending Mr Jeray's second application for recusal, I was not persuaded that my question to him on 4 February might give rise in the "fair-minded lay observer" to a reasonable apprehension that I might not decide Mr Jeray's motion for contempt on its merits. Costs 82When making final submissions to me, both Mr Jeray and the Council made submissions as to the payment of costs. In the event that it was acquitted of the charges of contempt and Mr Jeray's notice of motion dismissed, the Council seeks its costs. In proceedings of this kind the general principle is that costs follow the event. UCPR 42.1 so provides "unless it appears to the Court that some other order should be made as to the whole or any part of the costs." 83Mr Jeray opposes making an order for costs against him. He does so on two bases. First he submits that as the motion is interlocutory, any order for costs ought to be deferred until the final determination of the principal proceedings. While I can accept that in some interlocutory applications of a procedural nature, it may be appropriate to reserve costs until proceedings are finally determined, I do not regard a motion charging contempt to be in that category. The determination of such a motion is discrete from the principal proceedings in that the determination made on the motion does not directly impinge upon the determination to be made in the principal proceedings. 84Secondly, Mr Jeray argues that his proceedings have been brought in the public interest and thus the discretion of the Court should be exercised against the making of a costs order. In this regard he relies upon LECR 4.2(1) that provides as follows: "4.2 Proceedings brought in the public interest (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest." 85The principles that attend the exercise of discretion when reliance is placed upon LECR 4.2 have been discussed by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280. His Honour said at ([13]): "A review of the decisions on costs reveals that courts have used, in effect, a three step approach in determining whether to depart from the usual costs rule: first, can the litigation be characterised as having been brought in the public interest?; secondly, if so, is there 'something more' than the mere characterisation of the litigation as being brought in the public interest?; and, thirdly, are there any countervailing circumstances, including relating to the conduct of the applicant, which speaks against departure from the usual costs rule?" 86His Honour then proceeded to detail each of the three steps that he had identified. Of present relevance is the second step that requires "something more" than the mere assertion that litigation has been brought in the public interest. That additional ingredient must distinguish the matter beyond the mere assertion by having regard to the nature, extent and other features of the public interest in a particular case. It could, for example, be that the question sought to be litigated had some particular significance for environmental law. 87I accept that Mr Jeray does not bring these proceedings for personal gain but rather to correct a wrong which he perceives to have been committed by the Council. That wrong is asserted to be the manner in which the Council maintains its records and the extent to which those records are made available to a member of the public seeking to inspect them. 88No evidence has been adduced by Mr Jeray to indicate the extent of the "public interest" that he represents. He does not identify any organisation of which he is a member nor the number of those who have grievances of the kind that Mr Jeray claims. 89Moreover, whatever public interest may be represented in seeking to redress the poor administration of the Council claimed by Mr Jeray, I do not perceive any public interest in pursuing the present notice of motion for contempt. Despite the voluminous evidence upon which Mr Jeray sought to rely, ultimately the asserted contempt turned upon the failure to produce one document which, in the context of Mr Jeray's principal proceedings, would not appear to significantly advance his case. These circumstances would militate against exercise of the discretion afforded by LECR 4.2. 90Furthermore, it was not until the final day of hearing that Mr Jeray informed both the Court and the Council that he would no longer press the first of his two contempt charges directed to what occurred before Pepper J in July 2010. The Council's written submissions demonstrate that significant effort had been made in addressing the abandoned charge. 91In these circumstances, I do not propose to exercise the discretion available under UCPR 4.2. Mr Jeray will be required to pay the Council's costs of his notice of motion. Orders 92The orders that I make are therefore as follows: 1. The respondent is acquitted of each of the charges that are the subject of the statement of charge appended to the applicant's notice of motion of 1 October 2010. 2. The applicant's notice of motion dated 1 October 2010 is dismissed. 3. The applicant is to pay the respondent's costs of the notice of motion dated 1 October 2010 in so far as that notice of motion charged the respondent with contempt. 4. The exhibits may be returned. ********** 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: 07 March 2011