Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mr X v Teachers Mutual Bank Limited [2020] NSWCATAD 218 Hearing dates: On papers after 4 August 2020 Date of orders: 7 September 2020 Decision date: 07 September 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy ADCJ, Deputy President Decision: The applicant shall be referred to in connection with these proceedings and proceedings 131008 in the Administrative Decisions Tribunal as "Mr X". Note: NCAT will prepare a revised version of the Administrative Decisions Tribunal decision the subject of this application substituting the name of the applicant with "Mr X" wherever it appears and forward that revised decision to CaseLaw for publication. Catchwords: PRACTICE AND PROCEDURE – non-publication or pseudonym orders – where Administrative Decisions Tribunal (ADT) published reasons for decision including the applicant's name on the Caselaw website – whether, 7 years later, the Civil and Administrative Tribunal (NCAT) has jurisdiction to make a non-publication or pseudonym order – whether such an order should be made Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (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 Witness v Marsden (2000) 49 NSWLR 429 Mr X v Teachers Mutual Bank Limited [2013] NSWADT 41 Texts Cited: None cited Category: Procedural and other rulings Parties: Mr X (Applicant) Teachers Mutual Bank Limited (Respondent) Representation: Solicitors: Applicant (Self-represented) Respondent (Self-represented) File Number(s): 2020/00207721 Publication restriction: 1. The applicant shall be referred to in connection with these proceedings and proceedings 131008 in the Administrative Decisions Tribunal as "Mr X". REASONS FOR DECISION Overview 1. More than 7 years ago Mr X's employer, Teachers Mutual Bank Ltd, terminated his employment. Mr X complained that the termination was in breach of the Anti-Discrimination Act 1977 (NSW). After making that complaint, Mr X applied to the Administrative Decisions Tribunal (ADT) for an interim order that his former employer reinstate him to his position pending the determination of his complaint. The ADT refused the application for an interim order: Mr X v Teachers Mutual Bank Limited [2013] NSWADT 41. In accordance with the usual practice of the ADT in such proceedings, the decision was published electronically on the website, www.caselaw.nsw.gov.au ("Caselaw"). The decision has been re-published on the Austlii and BarNet Jade websites. We will refer to the published decision as the ADT decision. 2. In 2014, the ADT was abolished and the powers it had exercised were transferred to the Civil and Administrative Tribunal (NCAT). In 2020, Mr X applied to NCAT for "the suppression and non-publication" of his name from the ADT decision. In effect, what Mr X is seeking is that his name be removed from the ADT decision and replaced with a pseudonym. 3. Mr X submitted that the publication of his name in the ADT decision has allowed potential employers to read the information in the ADT decision. He thinks that has affected his career. If his name is removed from the ADT decision he says he would be able to move on with his life and "continue to use his abilities without the adverse impacts on his career, mental health and values." His former employer did not oppose that order. 4. After consulting with the parties, I have dispensed with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50. Two issues arise. First, does NCAT have jurisdiction to hear this application which relates to the ADT decision? Secondly, if it does, should NCAT make the order Mr X seeks? Does NCAT have jurisdiction to hear this application? 1. The NCAT Act was enacted on 1 January 2014. The ADT was abolished on the same day: NCAT Act, Sch 1, cl 3. Schedule 1 of the NCAT Act is headed 'Savings, transitional and other provisions'. Division 3 contains provisions relating to proceedings concerning abolished existing tribunals. The ADT was an "existing tribunal": NCAT Act, Sch 1, cl 2. Subdivision 2 of Division 3 relates to "pending proceedings". Provision is made in that subdivision for NCAT to determine certain "unheard proceedings" and "part heard proceedings" from existing tribunals. 2. The ADT proceedings do not come within the definition of "unheard proceedings", "part-heard proceedings" or "pending proceedings" in Sch 1, cl 6 to the NCAT Act. Consequently, Sch 1, cl 7 and 8 to the NCAT Act do not apply to the ADT proceedings. 3. Subdivision 3 of Division 3 to Schedule 1 of the NCAT Act is headed "Exercise of certain unexercised rights". An "unexercised right" is defined in cl 6 of Sch 1 to mean a "right that was available to be exercised immediately before (1 January 2014) and had not been exercised before that day." Clause 9 applies to the following existing unexercised applications or appeal rights: (a) an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter, (b) an unexercised right to apply to an existing tribunal for a review of a decision of another person or body, (c) an unexercised right to appeal to an existing tribunal against a decision of another person or body. 1. A person who has such a right may apply or appeal to NCAT "for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished": NCAT Act, Sch 1, cl 2. 2. Neither paragraphs (b) nor (c) of cl 9 apply to the facts of this case. Consequently, for NCAT to have jurisdiction to hear the application for a non-publication order, that application must come within the definition of a "right to apply to the ADT for it to make a decision at first instance concerning a matter". Secondly, that right must have been available to be exercise immediately before 1 January 2014 but had not been exercised before that day. 3. Immediately before 1 January 2014, Mr X had a right to apply to the ADT for a non-publication order under s 75(2)(b)(i) of the ADT Act. 75 Proceedings on hearing to be conducted in public (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, 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 that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before 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. (2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies. (2B) The Tribunal may from time to time vary or revoke an order made under subsection (2). 1. That right existed despite the fact that the decision had been finalised and published on the Caselaw website. If the Tribunal had made a non-publication order it would have had power to vary or revoke such an order "from time to time": ADT Act, s 75(2B). The plain and ordinary meaning of s 75(2) of the ADT Act is that a person may apply for an order at any time. An application under s 75(2) is an application for a decision at first instance concerning a matter, namely a non-publication order. Mr X had the right to make that application immediately before 1 January 2014 and he had not made that application before that time. On the basis of this reasoning, NCAT has jurisdiction to hear this application. 2. Alternatively, Mr X submitted that NCAT has power to make the order he seeks because the ADT's order, that "the applicant's application for an interim order is refused" is taken to be an order made by NCAT: NCAT Act, Sch 1, cl 14. However, the fact that the ADT order is now an order of NCAT, does not give NCAT power to make another order about the non-publication of the name of a party to the proceedings. Should NCAT make the order Mr X seeks? Scope of power to make a non-publication order 1. If the ADT had not been abolished, it could have exercised the function of making an order prohibiting the disclosure of Mr X's name in the reasons for decision. The power to do so can be found in s 75(2)(a)(i) of the ADT Act. That provision is expressed in almost identical terms to the corresponding provision in s 64 of the NCAT Act. Under s 64, if NCAT 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" certain suppression and non-publication orders. (My emphasis.) 2. In a recent judgment, the Court of Appeal determined an application for a non-publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW). The application was from five women who had appealed from an NCAT decision: DRJ v Commissioner of Victims Rights [2020] NSWCA 136. The Court (Leeming JA, Bell P and Meagher JA agreeing) contrasted the breadth of NCAT's power under s 64 of the NCAT Act with the courts powers under the Court Suppression and Non-publication Orders Act. For example, courts may only make suppression and non-publication orders if it is "necessary" to do so to achieve various outcomes: Court Suppression and Non-publication Orders Act, s 8(1). 3. The Court of Appeal also highlighted the fact that, under s 6 of the Court Suppression and Non-publication Orders Act: 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. There is was no equivalent provision in the ADT Act and there is none in the NCAT Act. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136 the Court noted at [26] that: . . . many hearings in NCAT take place in ways which are not open to the public. Sometimes this is because of the nature of the jurisdiction (for example, proceedings in the Guardianship Division). But more generally, NCAT may determine any application for leave on the papers. NCAT may also make an order dispensing with a final hearing if, after giving the parties an opportunity to make submissions about doing so, it forms the view that the issues can be adequately determined in the parties' absence: Civil and Administrative Tribunal Act, s 50(2). 1. At [27], the Court concluded that "the important role of public and professional scrutiny of curial proceedings explains the significant difference between the powers in s 64 of the Civil and Administrative Act 2013 and the Court Suppression and Non-publication Orders Act." 2. I do not understand the Court's reasoning in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 to be suggesting that the public interest in open justice is irrelevant when determining whether it is desirable to make a non-publication order under either the ADT Act or the NCAT Act. Under s 75(2) of the ADT Act, if proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. Similarly, under s 49 of the NCAT Act, hearings are "to be open to the public unless the Tribunal orders otherwise." In this case, the ADT held a public hearing to determine Mr X's application for an interim order. In proceedings under the Anti-Discrimination Act, it was also customary for the ADT to publish written reasons for decision on the Caselaw website. That practice has continued in NCAT. 3. In a proceeding under the Anti-Discrimination Act requesting a non-publication order, the Appeal Panel of the ADT agreed that the principle of open justice, as articulated in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, is not directly applicable to proceedings under the ADT Act: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69. The Appeal Panel went on at [57] – [58]: 57 It does not follow, however, that the broad principle of open justice that decisions such as John Fairfax v Police Tribunal and O'Shane v Burwood Local Court strongly affirm has no relevance to our decision. Two aspects of the relevant provisions of the ADT Act (which for reasons given above at [49] must be our 'primary point of reference') indicate this clearly. 58 The first of these is that subsection (2) of section 75 begins with the word 'however' and is expressed as an exception to a statutory formulation, in subsection (1), of the principle of open justice. This principle may not receive explicit emphasis in the way that it does in the concluding paragraph of section 35(3) of the ADT Act. (In Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 at [40], North and Downes JJ said that that paragraph 'imposes an overriding obligation on the Tribunal to "take as the basis of its consideration the principle" that hearings should be in public'.) But it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2). 59 Secondly, section 126 of the ADT Act (to which section 75(2A) refers) prohibits the publication of material disclosing the names or other identifying features of a person involved in certain specified classes of Tribunal proceedings, unless the Tribunal consents. This impliedly reinforces the principle that, in proceedings outside these specified classes, the publication of such material is prima facie permissible. 1. The Appeal Panel of the ADT went on at [61] to reach the following conclusion about the significance of the principle of open justice: Quite apart from these two considerations, it is unthinkable that the word 'desirable' in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is 'desirable' under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting. 1. I adopt this reasoning as to the meaning of s 75 of the ADT Act. Mr X's submissions 1. In summary, Mr X submitted that NCAT should make a non-publication order in relation to his name because: 1. the order is necessary to protect his psychological and mental health; 2. he sought the order at the earliest opportunity; 3. the publication of his name has led to job offers being withdrawn after employment screenings and this could amount to indirect discrimination and a breach of his privacy where it is used to draw inferences about his suitability for employment; 4. the principle of open justice is not compromised by the making of a non-publication order; and 5. his former employer consents to a non-publication order. The order is necessary to protect his psychological and mental health 1. The most persuasive reason Mr X has given for the making of a non-publication order is that it is desirable to protect his mental health. A counsellor who had been seeing Mr X for "stress and anxiety" over the last few years wrote a letter to NCAT dated 17 February 2020. She said that Mr X has told her that having his name on the public record is preventing him from moving on with his life and is an ongoing source of stress and anxiety for him. He worries that future searches for his name on the internet will mean missing out on career opportunities. 2. It is not necessary to make any factual findings as to the correctness of Mr X's assertion that the publication of his name is affecting his career prospects. It is sufficient for me to find that Mr X continues to feel stressed and anxious about the publication of his name and that he has sought counselling. 3. Despite putting forward reasons which would justify some delay in making this application, I am not satisfied that Mr X has applied for a non-publication order at the earliest opportunity. Nevertheless, as I have said, there is no limit on the time for making such an application. Discrimination and privacy concerns 1. Whether employment screening by potential employers breaches or has the potential to breach the Anti-Discrimination Act or privacy legislation is not an issue I can or should take into account in these proceedings. Principle of open justice 1. According to Mr X, the principle of open justice would not be compromised by making a non-publication order. That statement is not strictly correct. The making of a non-publication order, even though confined to Mr X's name, is not in accordance with the principle of open justice. Nevertheless, in this case, the ADT heard the proceedings in public and arranged for the written reasons to be published on the Caselaw website. If Mr X's name is removed from the decision, we agree with the reasoning of the Court of Appeal in Witness v Marsden (2000) 49 NSWLR 429 at [143]-[144] that that kind of interference is minimal: Witness v Marsden (2000) 49 NSWLR 429 at [143]-[144]. Consent of former employer and employment reference 1. Mr X submitted that the fact that his former employer consents to NCAT making a non-publication order is a relevant consideration in determining whether to make the order. However, the Tribunal itself must be satisfied that it is desirable to make such an order "by reason of the confidential nature of any evidence or matter or for any other reason". The consent by Mr X's former employer does not affect my decision. 2. Mr X provided a reference from the Hon Michael Kirby AC CMG. That reference has no relevance to any issue I need to decide. Conclusion 1. I am satisfied that it is desirable to make a non-publication order relating to Mr X's name because of the effect the publication of his name in the ADT's decision is having on his mental health. The hearing was held in public and the ADT's decision is publicly available. If Mr X's name is removed from the decision that is a minimal interference with the principle of open justice. I understand that when this order is communicated to those responsible for the CaseLaw website, they will remove the decision identifying Mr X by name and replace it with a new version of the decision provided by NCAT, using the pseudonym "Mr X". I also understand that both the Austlii and BarNet Jade websites will replace the original ADT decision with the revised version. Orders 1. The applicant shall be referred to in connection with these proceedings and proceedings 131008 in the Administrative Decisions Tribunal as "Mr X". Note: NCAT will prepare a revised version of the Administrative Decisions Tribunal decision the subject of this application substituting the name of the applicant with "Mr X" wherever it appears and forward that revised decision to CaseLaw for publication. ********** 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: 07 September 2020