Civil and Administrative Tribunal New South Wales Medium Neutral Citation: PR v MDM [2020] NSWCATAP 151 Hearing dates: On the papers after 5 June 2020 Date of orders: 23 July 2020 Decision date: 23 July 2020 Jurisdiction: Appeal Panel Before: N Hennessy, Deputy President ADCJ A Suthers, Principal Member Decision: (1) The Appeal Panel will deal with the appeal by way of a new hearing. (2) Order 3 of the Tribunal's orders made on 2 April 2020 is set aside. In substitution for that order, the following order is made, pending further order of the Appeal Panel: Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the parties' names is prohibited. Note: Under s 64(4), a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (3) The appeal is listed for call-over at 12 noon on 4 August 2020. Catchwords: APPEAL - PRACTICE AND PROCEDURE – meaning of s 64(1) of Civil and Administrative Tribunal Act 2013 (NSW) - where Tribunal made a non-publication order restricting publication of applicant's name in connection with Tribunal proceedings– whether Tribunal made an error of law – fresh evidence - whether Appeal Panel should deal with the appeal by way of a new hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 2015 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Cases Cited: DRJ v Commissioner of Victims Rights [2020] NSWCA 136 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Yuen v Thom (11 November 2016) [2016] NSWCATAP 243 Texts Cited: Nil Category: Principal judgment Parties: PR (1st Appellant) TT (2nd Appellant) GW (3rd Appellant) MDM (Respondent) Representation: Solicitors: Jane Crittenden, Lawyer (Appellants) Kerin Benson, Lawyers (Respondent) File Number(s): AP 20/18521 Publication restriction: (1) Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the parties' names in the appeal proceedings is prohibited. Note: Under s 64(4), a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (2) Under s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of paragraph 8 of these reasons for decision is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: MDM v PR & Ors [2020] NSWCAT (unreported) Date of Decision: 2 April, 2020 Before: K Rosser, Principal Member File Number(s): SC 19/49726 REASON FOR DECISION Overview 1. MDM applied to the Tribunal for orders that three people (PR, TT and GW) be removed as members of a strata committee representing lot owners in a strata plan: Strata Schemes Management Act 2015 (NSW), s 238. Each of the parties to those proceedings was an owner in the same strata scheme. The Tribunal dismissed MDM's application for interim orders and made what we will call "interim confidentiality orders": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 64. The reason for those orders was that MDM is a judicial officer. The Tribunal accepted his submission that publication of identifying information may enable a person to cause harm to him and his family. 2. The interim confidentiality orders made under s 64 of the NCAT Act prohibited the disclosure of the names of the parties and "restricted from publication" all the evidence filed in the proceedings and the oral evidence and submissions made at the confidential hearing on 6 December 2019. The interim confidentiality orders also "restricted from publication" the affidavit of MDM dated 28 November 2019, except to MDM. 3. After the Tribunal gave written reasons for dismissing the application for interim orders, MDM withdrew the substantive application. At the same time, he applied for the interim confidentiality orders to continue. 4. After receiving submissions from the parties, a differently constituted Tribunal determined the application for the continuation of the interim confidentiality orders 'on the papers': NCAT Act, s 50. The second Tribunal dismissed the substantive application and made the following "final confidentiality orders": 3. The publication of the parties' names is restricted from publication except to the parties. 4. The publication of the documents which have been received into evidence by the Tribunal, evidence given before the Tribunal at the hearing on 6 December 2019, including all recordings, whether written, electronic or oral, of that hearing is restricted except to the parties. 5. The contents of the affidavit of 28 November 2019 filed in these proceedings is restricted for publication and is to be stored by the Tribunal in a sealed envelope marked "confidential" 6. These orders shall not prevent the identification of any party in the proceedings or the communication of any pleading, transcript or recording of evidence or other document in the proceedings to: i. the employer of one of the parties and correspondence that amounts to a complaint; and/or ii. any body that is responsible for disciplining members of the legal profession in a State or Territory. 1. Orders 4 – 6 reflect the Tribunal's understanding of the orders to which the parties had agreed. 2. PR, TT and GW have appealed to the Appeal Panel from Order 3: NCAT Act, s 80(2). We have decided to deal with the appeal by way of a new hearing. Under s 80(3)(a) of the NCAT Act, the Appeal Panel may decide to deal with an internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing. Under s 80(3)(b), the Tribunal may "permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances." 3. There are two reasons for our decision to deal with the appeal by way of a new hearing. First, the grounds of appeal refer to 'fresh evidence' that was filed by PR, TT and GW after the Tribunal's timetable for the parties to file their material had expired on 25 March 2020. The fresh evidence was that MDM no longer resides at the address disclosed in the substantive application. PR, TT and GW submitted that there is no risk of harm in disclosing either MDM's name or their names or address because it would not allow any person to find out where MDM lives. MDM disagrees. He also sought leave to rely on 'fresh' evidence on appeal. That evidence included a further affidavit of MDM dated 4 May 2020 and letters of Kerin Benson Lawyers dated 11 May 2020. 4. [NOT FOR PUBLICATION] 5. The grounds for the appeal, insofar as they relate to fresh evidence, warrant a new hearing. 6. The second reason for dealing with the appeal by way of a new hearing is that it appears to us that the Tribunal misunderstood the effect of Order 3 which was expressed as a non-publication order. Under s 64(1) of the NCAT Act, the Tribunal may make orders restricting the publication or disclosure of information and documents in proceedings: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. We note that s 64(1)(a) and (d) relate to "disclosure", while s 64(1)(b) relates to "publication or broadcast" and s 64(1)(c) relates to "publication" alone. These words are not defined in the NCAT Act, but their ordinary meanings are not controversial. "Publish" means "to make publicly or generally known": Macquarie Dictionary online. "Disclose" has the broader meaning of "to make known or reveal" and includes publication: Macquarie Dictionary online. 2. In the reasons for decision, at [6], the Tribunal stated that it understood the effect of Order 3 to be that the parties would be given a pseudonym in any written reasons for decision. In addition, any person would be prohibited from disclosing the parties' names or any information which may lead to their identification, in connection with these proceedings: MDM v PR & Ors [2020] NSWCAT (unreported) at [6]. At [44], the Tribunal added that the effect of Order 3 would be to anonymise MDM's name "in all materials and not only in hearing lists." 3. In our view, the Tribunal intended to make a non-disclosure order, sometimes referred to as a 'suppression order' under s 64(1)(a) of the NCAT Act. The Tribunal intended to prohibit the disclosure (not just the publication) of the parties' names. To keep the information confidential pending a re-hearing, we make the following order: "Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of PR, TT and GW and their address is prohibited." Note: Under s 64(4), "a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person." 1. Each of the reasons we have given for dealing with the appeal by way of a new hearing, makes it unnecessary to address the other grounds of appeal in detail. However, we make the following observations on the relevant legislation, the Tribunal's decision and the nature of a re-hearing. Summary of grounds of appeal 1. The grounds of appeal were that the Tribunal erred in making Order 3 in circumstances where: 1. the Tribunal was informed prior to issuing its determination that the Respondent had sold and vacated his unit in (Strata Plan number deleted) such that disclosing the Strata Plan address and Plan number and the names of the parties would not disclose the Respondent's current residential address; 2. the Tribunal erred by applying the incorrect test as to whether it was desirable within the meaning of s 64(1) of the NCAT Act to make Order 3; 3. the Tribunal erred by determining that provided the Appellants would not be precluded from making a complaint to the Respondent's employer about his conduct, it was desirable to make Order 3; 4. the Tribunal erred in determining that it was desirable to deviate from the ordinary principles of open and transparent justice by ordering that the parties' names be restricted from publication; 5. the Tribunal erred in concluding that it was desirable or necessary to protect the anonymity of the Respondent; and 6. the Tribunal erred in determining that best practice would dictate that suppressing the details of all parties was necessary to preserve the anonymity of an officer of the court. 1. We will refer to the first ground of appeal as the "late evidence" ground; to the second, third and fourth grounds as the "incorrect application of legal principle" grounds and to the fifth and sixth grounds as the "challenges to primary findings of fact" grounds. Ground 1 – error to fail to consider late evidence 1. On 16 December 2019, the Tribunal made directions as to the filing of evidence and submissions relating to the proposed non-publication and suppression orders. The Tribunal amended the timetable and MDM filed further submissions in reply on 11 February 2020. The Tribunal determined the application for final orders 'on the papers' after that date and gave written reasons on 2 April 2020: NCAT Act, s 50. 2. On 25 March 2020, after the timetable for filing and serving submissions had closed, PR, TT and GW wrote to the Tribunal and MDM, saying that it was their understanding that MDM had sold his property in the Strata Plan and vacated those premises. PR, TT and GW submitted that if that was the case, any application for orders that the names of the parties or the address of the property not be disclosed are unnecessary. Disclosure of that information would not create any risk of MDM's address being identified. 3. The Tribunal did not refer to the letter containing this 'evidence' in deciding the terms of the final confidentiality orders. PR, TT and GW appear to contend that the Tribunal's failure to take into account that 'evidence' is both an error of law and a reason to give leave to appeal on grounds other than a question of law. 4. The late evidence was filed after the timetable for filing and serving evidence and submissions had expired and about a week before the Tribunal delivered the reasons for decision. We do not know whether the late evidence was brought to the Tribunal's attention. If it was not brought to their attention, that explains why it was not referred to in the reasons for decision. As the evidence was filed late, and we do not know whether the Tribunal was aware of that evidence, we are not satisfied that the Tribunal made an error of any kind in failing to refer to it in the reasons for decision: NCAT Act, s 80(2). Grounds 2, 3 and 4 – incorrect statement or application of legal principle 1. Grounds 2, 3 and 4 assert that the Tribunal incorrectly stated or mis-applied the legal test for making an order under s 64 of the NCAT Act. For the reasons we give below, the Tribunal did not make the errors listed in grounds 2, 3 or 4. 2. A hearing by the Tribunal is open to the public unless the Tribunal orders otherwise: NCAT Act, s 49(1). The Tribunal referred to the open justice principle expressed in s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW): In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 1. The Tribunal was satisfied that it was "desirable" to make Order 3 "by reason of the confidential nature of any evidence or matter or for any other reason": NCAT Act, s 64. That reason was "to remove any chance of having his address, and that of his family, identified to persons who may plan to harm him": MDM v PR [2020] NSWCAT at [7] (unreported). 2. The Court Suppression and Non-publication Orders Act 2010 does not apply to the Tribunal. On 8 July 2020, after the parties had filed their submissions, the Court of Appeal handed down a decision highlighting the differences between the powers of the Tribunal under s 64 of the NCAT Act and those of courts under the Court Suppression and Non-publication Orders Act: DRJ v Commissioner of Victims Rights [2020] NSWCA 136. The parties have not had the opportunity to address the Appeal Panel on the relevance of this decision. They may choose to do so on the re-hearing. Grounds 5 and 6 - challenges to primary findings of fact Tribunal's findings 1. Grounds 5 and 6 challenge the Tribunal's findings of fact, in particular the finding at [45], that "best practice would dictate that suppressing the details of all parties is necessary to preserve the anonymity of an officer of the court." A new hearing under s 80(3) is a hearing de novo, or "from the beginning": Yuen v Thom (11 November 2016) [2016] NSWCATAP 243 at [17]. As we have decided to re-hear the matter, we will also make new findings of fact based on all the evidence, including the evidence that was before the Tribunal. Interlocutory suppression order to be continued 1. Finally, we note that the Appeal Panel made a suppression order on an interlocutory basis, on 6 May 2020. It is appropriate that we continue that order in respect of the appeal proceedings, until the matter is resolved. On that basis we order that, pending further order, the disclosure of the parties' names in the appeal proceedings is prohibited under s 64(1)(a) of the NCAT Act. Orders 1. The Appeal Panel will deal with the appeal by way of a new hearing. 2. Order 3 of the Tribunal's orders made on 2 April 2020 is set aside. In substitution for that order, the following order is made, pending further order of the Appeal Panel: Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the parties' names is prohibited. Note: Under s 64(4), a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The appeal is listed for call-over at 12 noon on 4 August 2020. Publication restrictions 1. Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the parties' names in the appeal proceedings is prohibited. Note: Under s 64(4), a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. Under s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of paragraph 8 of these reasons for decision is prohibited. ********** 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: 24 July 2020