Ritson v Ryan[2023] QCAT 33

REASONS FOR DECISION

1. [1]
   The applicant has applied to the Tribunal for an order under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 63(1) that the Chief Commissioner of Victoria Police produce to the applicant the full criminal record of the respondent.  On 22 February 2022 the President of the Tribunal made directions for the filing and serving of submissions relating to this application, and for it to be determined on the papers.  For the reasons set out below, the application is dismissed.
2. [2]
   The application was filed in a proceeding commenced by an application filed by the applicant on 14 April 2021, seeking that the respondent be found to be in contempt of the Tribunal and be punished by a fine.^[1]  The application alleged that the respondent was in contempt in two respects, described as Charge 1 and Charge 2.  The former alleged a failure to comply with an order of an adjudicator as to emailing material to the applicant; the latter alleged that the respondent stated orally to the adjudicator information that he knew was false or misleading in a material particular.  Particulars were given of Charge 2. 
3. [3]
   With that application was filed an affidavit by the applicant, and an affidavit of service filed on 13 January 2022 deposes to both having been served personally on the respondent on 17 December 2021.  The application before me has presumably been served on the respondent, although I have not seen evidence of that.  The applicant said at the directions hearing before the President that it had been served two weeks earlier.  At that directions hearing, the President raised with the applicant certain aspects of the application, and gave the directions referred to above. 
4. [4]
   The applicant filed submissions in support of the application on 26 April 2022.  In them he alleged that, in a hearing of a particular proceeding between parties on 16 May 2019, the respondent had made a statement about an absence of any criminal history, which was relevant because his credibility was in issue in that proceeding.  The submissions refer to a sentencing of the respondent on 11 December 2018 for a particular offence, which the applicant is already aware of, and that the sentencing remarks referred to a “minor unrelated offence”, which the applicant had been unable to identify.  It appears from those submissions that the function of the present application is to identify that offence, in the hope that it will prove the falsity of the respondent’s statement.  There have been no submissions in response by the respondent. 

Consideration

5. [5]
   The difficulty with this application is that the applicant has, in Charge 2 in the application, particularised the falsity of the respondent’s statement by reference to the respondent’s plea of guilty to an offence set out in an attached document from the Magistrates Court of Victoria, which refers to a traffic offence.  Whether or not that was the “minor unrelated offence”, clearly the applicant is already well aware of it.  More importantly, given the terms of the particulars, it is the only offence which is relevant to Charge 2 in the application for punishment for contempt.
6. [6]
   The QCAT Act s 219(2) provides that the Tribunal must comply with the Uniform Civil Procedure Rules 1999 (“the UCPR”) relating to contempt, with necessary changes including changes prescribed under the rules of the Tribunal.  UCPR r 926(1) requires that there be an application “specifying the alleged contempt”.  Proceedings for contempt are regarded as serious matters, to be approached with caution and with the procedural rules being strictly complied with.^[2]  As he was required to do, the applicant specified the alleged contempt, by reference to a particular conviction for an offence.  What is relevant therefore is whether that offence was committed, whether it falsifies the statement made to the Tribunal by the respondent, and whether that statement was made, knowing it was false. 
7. [7]
   The fact that the applicant appears to be able to prove, by a certificate from the Magistrates Court, the fact of that conviction would not necessarily preclude his gathering additional evidence, but only to prove that conviction.  It would not be relevant for the applicant to seek to prove any other conviction of the respondent, and it is clear from his submissions that that is the purpose of this application.  It follows that the document sought to be produced is not relevant,^[3] and hence not within the QCAT Act s 63, so the application should be dismissed. 
8. [8]
   In the circumstances it is unnecessary to consider whether the criminal history would be relevant, as a document to prove the conviction of a relevant offence.  By UCPR r 926(4) only evidence admissible under the ordinary rules of evidence can be relied on in an application for contempt.  A criminal history is on its face hearsay, and is admissible only if there is a relevant statutory provision making it admissible in evidence without further proof.  Criminal histories are tendered and admitted routinely at sentencing hearings, but that is because there is an express or implied admission on behalf of the defendant that the history is accurate.  This is not an issue addressed by the applicant.
9. [9]
   Another issue not addressed is whether, under the law of Victoria, the Chief Commissioner of Victoria Police is entitled to comply with an order of the Tribunal to produce the criminal history.  I expect there are relevant statutory provisions in Victoria, but have no idea what they are, since I expect that such a document would be confidential. 
10. [10]
    Another issue not addressed is whether a traffic offence was properly characterised as a criminal offence, a matter relevant to the logic of Charge 2.  This issue was raised by the President at the directions hearing on 22 February 2022, but it is not clear that the directions made required the applicant to address it in the context of this application.  In Queensland a traffic offence, such as driving with a blood alcohol concentration above the permitted limit, would not appear on a criminal history, but on a separate “traffic history”, if thought relevant.  I do not know what the practice is in Victoria.  The issue not having been addressed by the applicant, I do not decide it. 
11. [11]
    The application filed 8 February 2022 is dismissed.