DVI v ZTT [2021] NSWCATEN 4

DVI v ZTT [2021] NSWCATEN 4

The applicant did not prove valid service of the summons. The respondent had not consented to service by email, no direction was sought or made for another method of service, and no substituted or informal service direction was obtained. The Tribunal was not satisfied that service by authorised methods was impossible or impracticable, or that the respondent knew of the summons before the February 2020 hearing. Because there was no valid service, the respondent had no obligation to attend the Tribunal on 25 February 2020 in response to the summons, and the failure to appear was not conduct capable of constituting contempt of the Tribunal. The application for referral under s 73(5) was...

Jurisdiction
Australia
Judgment Date
28 April 2021
Procedural Posture
Application for Referral to the Supreme Court for Alleged Contempt of the Tribunal Under S 73(5) of the Civil and Administrative Tribunal Act 2013 (nsw) / Determined on the Papers in the Tribunal's Enforcement Jurisdiction
Outcome
The amended application seeking referral of the alleged contempt to the Supreme Court was dismissed; a hearing was dispensed with; and non-disclosure orders were made.
Legal Topics
['referral to Supreme Court for Contempt of Tribunal' 'failure to Answer Summons to Give Evidence' 'service of Summons' 'electronic Service by Email' 'substituted and Informal Service' 'non Disclosure Orders' 'determination on the Papers']
['practice and Procedure' 'contempt' 'administrative Law'] ['referral to Supreme Court for Contempt of Tribunal' 'failure to Answer Summons to Give Evidence' 'service of Summons' 'electronic Service by Email' 'substituted and Informal Service' 'non Disclosure Orders' 'determination on the Papers']

Case Brief

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Procedural Posture

Application for Referral to the Supreme Court for Alleged Contempt of the Tribunal Under S 73(5) of the Civil and Administrative Tribunal Act 2013 (nsw) / Determined on the Papers in the Tribunal's Enforcement Jurisdiction

Legal Issues

  1. 1 ["Whether the respondent's failure to appear to give evidence in answer to a summons was conduct capable of amounting to contempt of the Tribunal." 'Whether the summons was validly served on the respondent by email under the Civil and Administrative Tribunal Rules 2014 (NSW).' 'Whether the Tribunal should exercise the discretion to refer the alleged contempt to the Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether ongoing non-disclosure orders should be made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

The applicant did not prove valid service of the summons. The respondent had not consented to service by email, no direction was sought or made for another method of service, and no substituted or informal service direction was obtained. The Tribunal was not satisfied that service by authorised methods was impossible or impracticable, or that the respondent knew of the summons before the February 2020 hearing. Because there was no valid service, the respondent had no obligation to attend the Tribunal on 25 February 2020 in response to the summons, and the failure to appear was not conduct capable of constituting contempt of the Tribunal. The application for referral under s 73(5) was...

Court Disposition

The amended application seeking referral of the alleged contempt to the Supreme Court was dismissed; a hearing was dispensed with; and non-disclosure orders were made.

Orders

  • ['A hearing is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'The amended application lodged on 11 August 2020 seeking the referral to the Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) of the alleged contempt by the respondent is...