Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EJK v Council of the Law Society of New South Wales [2020] NSWCATOD 109 Hearing dates: On the papers; submissions closed 27 July 2020 Date of orders: 16 September 2020 Decision date: 16 September 2020 Jurisdiction: Occupational Division Before: L Pearson, Principal Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. 2. The application is dismissed. Catchwords: STATUTORY CONSTRUCTION – inspection of documents by third parties – rule 42 of the Civil and Administrative Tribunal Rules 2014 – where non-party seeks permission from registrar to inspect public access documents in registry relating to proceedings in the Tribunal – whether Tribunal has power to direct the Registrar to determine an application for access in a particular way- non-disclosure order – whether order should be varied or revoked Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Family Law Act 1975 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291 Bradley v Senior Constable Chilby [2020] NSWSC 145 Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58 Council of the Law Society of New South Wales v Searle [2019] NSWCATOD 70 Texts Cited: NCAT Policy 4: Access to, and Publication of, Information Derived from Proceedings in the Tribunal (October 2019) Category: Procedural and other rulings Parties: EJK (Applicant) Council of the Law Society of New South Wales (First Respondent) Deborah Searle (Second Respondent) Representation: Counsel: P A Maddigan (First Respondent) Solicitors: Panwar Legal (Applicant) North Shore Criminal Law (Second Respondent) File Number(s): 2020/00087693 2018/00248516 Publication restriction: Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of EJK is prohibited. Note: 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. REASONS FOR DECISION Overview 1. EJK was a party to proceedings in the Family Court of Australia. His ex-partner's solicitor was Ms Deborah Searle. The Council of the Law Society of New South Wales brought disciplinary proceedings against Ms Searle in relation to her conduct in the Family Court proceedings: Council of the Law Society of New South Wales v Searle [2019] NSWCATOD 70 (the Disciplinary Proceedings). 2. An order was made in the Disciplinary Proceedings under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) in the following terms: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, disclosure of the names of the former client of the Respondent (referred to as the "Wife"), the Wife's former de facto partner (referred to as the "Husband") and the step-daughter of the Husband is prohibited. 1. After the Disciplinary Proceedings were finalised, EJK's solicitor applied to the Registrar of the Tribunal under r 42 of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules) to inspect and obtain a copy of the affidavit of Ms Searle dated 7 November 2018 as referred to in para [18] of the decision in the Disciplinary Proceedings. The application stated that access was sought to provide advice in relation to any civil remedy EJK may have against Ms Searle or any third party, and to advise EJK as to the bringing of a private prosecution against Ms Searle or a third party, and to use for the purposes of evidence in any such proceedings. A separate request was made for a copy of the sound recording of the Disciplinary Proceedings. 2. The Registrar refused the application because the Tribunal had made a non-publication order in respect of the names of the former client of the respondent and access could not be approved to any non-party to the proceedings. 3. EJK instituted criminal proceedings against Ms Searle in the Local Court under s 14 of the Criminal Procedure Act 1986 (NSW), relating to an offence under s 249K(1)(a) of the Crimes Act 1900 described as "unwarranted demand with menaces with intention of causing a loss". 4. On 11 March 2020, EJK filed an application in the Tribunal stated to be under s 64 of the NCAT Act, seeking the following orders: (1) That order 1 of the orders made in the proceedings known as Council of the Law Society of New South Wales v Searle [2019] NSWCATOD 70 (The Tribunal Proceedings) be varied as follows: (a) That subject to orders (b) to (c) the Applicant be at liberty to apply for and obtain copies of any documents relating to the Tribunal Proceedings including any affidavit exhibit, sound recording and transcript (the documents). (b) That the documents be released to the legal practitioners acting for the Applicant only. (c) That the legal practitioners acting for the Applicant shall not release the documents or any copy thereof to any other person or entity other than: (i) to the legal practitioners acting for the accused/Deborah Searle and in doing so shall advise them of the existence of the current non-disclosure order made in the Tribunal Proceedings (and any future court order) or (ii) to any Court hearing or otherwise involved in the criminal proceedings of [EJK] v Deborah Searle NSW Local Court 2019/00342021 provided that such court makes a non-publication order (or such like order) in the same terms or with the same effect as order 1, being the non disclosure/publication order made in the Tribunal Proceedings namely: "Disclosure of the names of the former client of Deborah Searle (referred to as the "Wife"), the Wife's former de facto partner (referred to as the "Husband") and the step-daughter of the Husband is prohibited". (iii) By further order of the Tribunal. 1. In this application the name of the applicant has been anonymised because identifying him is likely to lead to the identification of his ex-partner and step daughter. 2. At a directions hearing before Deputy President Hennessy on 8 April 2020 Ms Deborah Searle was joined to the proceedings as a party. Directions were made for the applicant to provide submissions in support of the application, and for the respondents to provide submissions in response; and that subject to considering any submissions by the party to the contrary, the application would be decided without the need for the parties to be present. 3. On 4 May 2020 EJK clarified the scope of the access request to be for "public access documents" only, including: 1. Disciplinary application; 2. Reply; 3. Affidavit sworn by Anne-Marie Foord 10 August 2018 with Exhibit AMF-1; 4. Affidavit sworn by Anne-Marie Foord 26 November 2018; 5. Affidavit sworn by Deborah Jean Searle 7 November 2018 with Exhibit DJS-1; and 6. A transcript (whether currently in existence or not) of the proceedings. Submissions Applicant's submissions 1. EJK submits that the orders sought in the application are necessary for the proper facilitation of the criminal proceedings in relation to which he is the prosecutor and the alleged victim. The proposed orders maintain the function of the existing non-disclosure order and do not prejudice any person for whom they were created to protect. There are no legal or other impediments preventing the applicant from obtaining the documents. It is in the interests of justice and the public interest that the orders be made. 2. EJK states that orders were made on 5 March 2020 at Gosford Local Court for the applicant to serve a brief of evidence on Ms Searle, and submits that it is intended that the brief include the documents sought in the application, at least the affidavit of Ms Searle dated 7 November 2018, and it is not intended to publish or disseminate the information contained in the documents other than as stated in the orders sought. The applicant submits that the restrictions on publication under s 121 of the Family Law Act 1975 do not apply to or in relation to the present circumstances. 3. EJK refers to para [73] of the decision in the Disciplinary Proceedings, and submits that the purpose of the non-disclosure order was not to protect the identity of the nominated protected persons from any party, but from the public. As was the situation in BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291, the applicant and each respondent are aware of the names of the protected persons, as the applicant is one and the other two are his relatives. If the order is varied as sought, the effect will still provide the same and appropriate measure of protection as currently exist, and the proposed orders would not prejudice the administration of justice. 4. EJK submits that he has rights and duties as the prosecutor in the criminal proceedings. The prosecution has duly commenced under s 174 of the Criminal Procedure Act, and the Registrar of the Local Court has signed the court attendance notices. As the criminal proceedings have commenced, the applicant has the same rights and obligations as any other prosecutor. Those obligations include one to serve a brief of evidence on the accused, being documents regarding the evidence the prosecutor intends to adduce, and the documents sought will form part of the brief of evidence. The applicant has a common law duty of disclosure of material that might be relevant to an issue in the case, raises a new issue, or holds out a real prospect of providing a lead on evidence in those two categories, relying on Bradley v Senior Constable Chilby [2020] NSWSC 145 at [40]. Further, the applicant also has the right to seek and obtain evidence that is relevant and supports the potential finding of guilt of the accused, including evidence that potentially contains admissions. The applicant would have a justifiable sense of grievance if he were denied access to documents from proceedings in relation to which he was the original complainant, in order to prosecute proceedings for which he is the alleged victim, as a result of an order that exists in part to protect him where there is no prejudice to the others. 5. EJK submits that the complaint in the criminal proceedings is made on the same factual basis as Complaint 2 of the Tribunal Proceedings, and all documents relating to Complaint 2 fall within the categories identified in Chilby, including documents containing alleged admissions to the conduct. Ms Searle's submissions 1. Ms Searle concedes that the Tribunal has power to vary the non-disclosure order on its own motion; that s 121(9)(a) of the Family Law Act allows documents related to Family Law proceedings to be communicated to persons concerned in Local Court proceedings; and that the Tribunal has a discretion to decide whether or not to grant a non-party access to public access documents. 2. Ms Searle submits that the application to vary the non-disclosure order and the request for copies of public access documents should be refused, because: 1. It would be unfair to the applicant's former de facto wife and stepdaughter to vary the non-disclosure order in their absence and without notice, in circumstances where they may object to the application and may have grounds to claim privilege over documents filed in the Disciplinary Proceedings. The documents contain material that is sensitive, and the complaint arose from a Court-ordered conciliation conference; 2. It would be unfair to Ms Searle: the documents include confidential communications that occurred in the Law Society's investigation of the complaint, and contain testimonials disclosing private addresses, and in the Disciplinary Proceedings the parties conducted themselves consistently with the objects of the NCAT Act and the procedures in s 38(4) of the NCAT Act; 3. It would not be in the public interest to grant access for a private prosecution of this kind: the private prosecution appears to be intended to serve EJK's own personal interests exclusively rather than the public interest, noting that the public interest has already been served by the Disciplinary Proceedings; and 4. It would not be in the interests of justice: the Disciplinary Proceedings concerned an important statutory and public interest function, and Ms Searle participated and assisted in those proceedings and made appropriate concessions that facilitated the processes of the Tribunal. It would not promote the guiding principle of the Tribunal if frank concessions or admissions in one set of proceedings could later be accessed and used by a non-party in an attempt to bolster a criminal prosecution against the person who made the concessions or admissions; or if a statement from a witness in one set of proceedings could later be accessed by a non-party to potentially be used against that witness in a foreshadowed prosecution. 1. Ms Searle submits that: 1. The criminal proceedings are now on foot and consistent with his prosecutorial obligations the applicant was required to have been satisfied he could prove the alleged offences beyond reasonable doubt without the documents when he commenced the private prosecution. If the documents were, as submitted, necessary for the proper facilitation of the criminal proceedings, the application should have been brought before embarking on the prosecution; 2. The prosecutorial duties of disclosure exist to protect the rights of a defendant in criminal proceedings to a fair trial, to compel a prosecutor to present all the evidence fairly and disclose material which the defendant does not have; and those duties do not oblige the Tribunal to furnish a prosecutor with additional material in order to bolster his case; 3. The applicant proposes to limit the use that may be made of the documents and impose a condition that he seek a similar non-publication order in the criminal proceedings; however the Tribunal cannot impose conditions on the Local Court's use of material tendered to it. Law Society's submissions 1. The Law Society neither consents to nor opposes the disclosure of public access documents pursuant to the limitations proposed in orders 1(b) and (c). The Law Society assumes that any variation of the non-publication order would be pursuant to the Tribunal's own motion, as EJK is not a party to the proceedings in which the non-publication order was made. 2. The Law Society submits that EJK is not entitled to documents that do not fall within the definition of "public access documents" including a copy of the sound recording of the Disciplinary Proceedings and the written submissions of the parties, and opposes the provision of the written submissions of the parties to the Disciplinary Proceedings. Further submissions 1. The directions made on 8 April 2020 did not include any direction for submissions in reply. However, EJK provided written submissions in reply, disputing that he had misconstrued his duties as a prosecutor, that there would be unfairness to his former de facto wife or stepdaughter, or to Ms Searle who would have a right to object to admissibility in the Local Court or seek a stay of the criminal proceedings, or that the prosecution is "vengeful". The Tribunal received further submissions on behalf of Ms Searle, submitting that unfairness to the former de facto wife would arise from disclosure of sensitive family law documents including communications with her lawyer, and the unfairness could not be remedied by the Local Court, and that the application to vary the non-disclosure order lacks the merit required to justify disturbing the order. Tribunal's request for further submissions 1. The Tribunal requested further submissions on an issue not raised by the parties' submissions, namely whether the Tribunal has jurisdiction to make the orders sought by EJK which include that he "be at liberty to apply for and obtain copies of any documents related to the Tribunal proceedings" on certain conditions. The Tribunal advised the parties of its preliminary view that the orders applied for did not in substance seek a revocation or variation of the non-disclosure order made in the Disciplinary Proceedings. Rather, they sought an order that the Tribunal in effect direct the Registrar to give EJK access to information on certain conditions; and the Tribunal's preliminary view was that it did not have jurisdiction to vary a decision of the Registrar under r 42 of the Rules. Applicant's submissions 1. EJK submits that variation of the non-publication order would remove the mandatory reason for refusal to grant access to the documents, and accepts that an application would need to be made under r 42. EJK submitted that an amendment to the application would provide a resolution to the issues raised in the request for further submissions, and proposed the following (original text): That order 1 of the orders made in the proceedings known as Council of the Law Society of New South Wales v Searle [2019] NSWCATOD 70 (8 May 2019) (the Tribunal Proceedings) be varied so that disclosure of the names of the former client of the Deborah Searle (referred to as the "Wife"), the Wife's former de facto partner (referred to as the "Husband") and the step-daughter of the Husband is permitted in any court of record New South Wales or of the Commonwealth of New South Wales: (i) where such court makes a non-publication order (or such like order) in the same terms or with the same effect as order 1, being the non-disclosure/non-publication order in the Tribunal Proceedings namely: "Disclosure of the names of the former client of the Deborah Searle (referred to as the "Wife"), the Wife's former de facto partner (referred to as the "Husband") and the step-daughter of the Husband is prohibited" and (ii) for the purposes of the hearing of the application for the non-publication order (or such like order) referred to in (i) above. 1. EJK submits that the Registrar would still determine under r 42 any application for third party access, and if granted access would be subject to the conditions proposed. The Registrar could impose any further conditions, including for example that documents be released to an Australian legal practitioner only, and not to provide copies to any other entity than the relevant court. Ms Searle's submissions 1. Ms Searle submits that EJK's application is in substance an application for orders that would direct the Registrar to give EJK access to the information he seeks, and the Tribunal does not have jurisdiction to review or vary a decision of the Registrar made under r 42. It follows that the Tribunal cannot make the orders sought in the application. 2. Ms Searle submits that the while the applicant concedes there is a possible jurisdictional issue his submissions are not responsive to the request for submissions, and if the applicant applies to vary his application at this late stage she would wish to be heard on costs. 3. Ms Searle otherwise relies on her earlier submissions. Law Society's submissions 1. The Law Society submits that the Registrar's decision under r 42 to refuse access to the documents was not an internally appealable decision (Rule 41 of the Rules), and the Tribunal does not have jurisdiction to review or vary a decision of the Registrar made under r 42. In light of the proposed amended orders, the Law Society does not understand the application to be seeking a review of the Registrar's decision, rather it is an application under s 64(3) of the NCAT Act to vary the non-publication order in accordance with the proposed amended orders. The Law Society neither consents to nor opposes the amended orders, and otherwise relies on its earlier submissions. Whether a hearing should be dispensed with 1. The directions made on 8 April 2020 included a direction that subject to considering any submissions by the parties to the contrary, the application would be decided without the need for the parties to be present. 2. EJK did not object to an order being made dispensing with a hearing under s 50(2) of the NCAT Act. Neither the Law Society nor Ms Searle made any submission on the issue. 3. Section 50(2) of the NCAT Act enables the Tribunal to make an order dispensing with a hearing if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or other documents or material provided to the Tribunal. As required by s 50(3), the Tribunal has afforded the parties an opportunity to make submissions about the proposed order. 4. The parties have addressed the issues raised by the application in their written submissions. The Tribunal is satisfied that the issues can be adequately determined by considering those written submissions, and an order has been made to dispense with a hearing. Applications for access to documents on finalised files 1. A person's entitlement to inspect documents in the Registry, and to obtain a copy of those documents, is regulated by r 42 of the NCAT Rules. A party to proceedings is, on payment of the applicable fee if any, entitled to inspect documents in the Registry relating to the proceedings: r 42(1). The Registrar has a discretion to permit a person who is not a party to proceedings to inspect "public access documents" in finalised proceedings: r 42(2). A "public access document" is defined in r 42(8): (8) In this Rule— public access document means any of the following— (a) an originating document or reply, (b) a statement, affidavit or document admitted into evidence in proceedings held in public, (c) a transcript (if available) of proceedings held in public, (d) a record (other than a sound recording) of any order made or other decision given in proceedings, (e) a record of the reasons given for a decision made in proceedings. 1. There is no entitlement to give or be given access to a document in the Registry if the Tribunal has ordered that the whole or part of the document not be disclosed: r 42(5)(c). Tribunal's powers over Registrar's decision about access 1. The application made by EJK on 13 March 2020 was framed as varying the non-disclosure order made under s 64 of the NCAT Act in the Disciplinary Proceedings but, in substance, requested that he be "at liberty to apply for and obtain copies of any documents relating to the Tribunal proceedings including any affidavit exhibit, sound recording and transcript (the documents)" subject to certain conditions. 2. The Grounds for the Application stated that it was intended that the brief of evidence in the criminal proceedings include from the documents sought, at least the affidavit of Deborah Searle dated 7 November 2018 filed in the Disciplinary Proceedings. EJK has subsequently clarified that he is seeking access to "public access documents", which would include that affidavit (see para [9] above). 3. Despite the wording, the orders sought did not actually seek a variation or revocation of the non-disclosure order. Rather, they sought to place conditions in relation to the granting of access, and in effect, to direct the Registrar to give EJK access to the documents on certain conditions. 4. The Tribunal's jurisdiction is set out in Part 3 of the NCAT Act. As a creature of statute, it has "such jurisdiction and functions as may be conferred or imposed on it by or under" the NCAT Act, or any other legislation: NCAT Act, s 28. The Tribunal has "administrative review jurisdiction", "appeal jurisdiction", "enforcement jurisdiction" and "general jurisdiction". In each of these jurisdictional areas, the Tribunal has power to make "ancillary and interlocutory decisions of the tribunal in proceedings": NCAT Act, s 29(2)(a), s 30(2)(a), s 31(2)(a) and s 32(2)(a). 5. The functions of registrars are set out in s 23 of the NCAT Act. A registrar means the principal registrar or any other person employed in the Public Service as a registrar of the Tribunal: NCAT Act, s 4. A registrar has such functions as may be conferred or imposed on the registrar by or under the NCAT Act or any other legislation or law: NCAT Act, s 23(1). The "procedural rules" (which, under s 4 include the Rules and the Civil and Administrative Tribunal Regulation 2013) "may make provision for or with respect to the functions of the principal registrar and other registrars, including authorising registrars to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal": NCAT Act, s 23(6). Rule 41 gives registrars power to make certain interlocutory decisions. 6. Section 24 of the NCAT Act establishes a Rule Committee with the functions of making the Tribunal rules, and ensuring that the Tribunal rules are as flexible and informal as possible. Section 25(1) sets out, in general terms, the subject matter of the rules: The Rule Committee may make rules of the Tribunal (referred to in this Act as the Tribunal rules), not inconsistent with this Act or enabling legislation, for or with respect to the following— (a) the practice and procedure to be followed in proceedings in the Tribunal, (b) any matter that is, by this Act or any other legislation, required or permitted to be prescribed by the Tribunal rules 1. The Tribunal rules may make provision "for or with respect to any of the matters specified in Schedule 7": NCAT Act, s 25(2). Schedule 7 to the NCAT Act is headed "Examples of procedural rule-making powers". The sixth example is: The rights and obligations of parties, prospective parties and other persons to obtain access to information, documents or things in relation to proceedings or prospective proceedings in the Tribunal. 1. Rule 42 comes within this example. That rule regulates the rights of parties and other persons to obtain access to information in relation to Tribunal proceedings. That rule is not about "the practice and procedure to be followed in proceedings in the Tribunal"; rather, it is a matter that is, by Sch 7, "permitted to be prescribed by the Tribunal rules": NCAT Act, s 25(1). 2. The twelfth example of the Tribunal's procedural rule-making power is: The review by the Tribunal of decisions made by registrars (including by way of internal appeals). 1. Rule 41 allows Registrars to make certain "interlocutory decisions" such as "a decision concerning the granting of access to documents or things produced in compliance with a summons in proceedings": r 41(1)(i). A decision concerning the rights and obligations of parties to obtain access to information in relation to proceedings is not listed in r 41. Presumably that is because it is not regarded as an "interlocutory decision" as defined in s 4 of the NCAT Act. 2. This is an important distinction because the interlocutory decisions listed in r 41 are subject to the other clauses in that provision. Rule 41(2) provides that: (2) The President or a Division Head may direct a registrar to refer the making of such a decision in a particular matter to the Tribunal. The registrar must comply with such a direction. 1. There is no corresponding provision in relation to a decision of the Registrar under r 42. Similarly, r 41(3) provides that: (3) A registrar may refer a particular matter to the Tribunal if the registrar considers it would be more appropriate for the Tribunal to deal with the matter. 1. Finally, r 41(4) provides that: A decision of the Tribunal made by a registrar under this rule is declared to be internally appellable for the purposes of section 32 of the Act if the decision would have been an internally appellable decision for the purposes of the Act had it been made by the Tribunal rather than the registrar. 1. Again, there is no corresponding provision in relation to a decision of the Registrar under r 42. 2. As well as the powers to make interlocutory decisions, the Tribunal has power to make "ancillary decisions". An "ancillary decision" is defined in s 4 as: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings 1. A decision about access to "public access documents" relating to proceedings is not an ancillary decision of the Tribunal. Such a decision is not made "under legislation" as there is no legislation conferring jurisdiction on the Tribunal to make such a decision. The NCAT Rules confer power on the Registrar to make those administrative decisions. Rule 42 may be contrasted with r 36.12(2) of the Uniform Civil Procedure Rules 2005 (NSW) which makes the Registrar's powers subject to the court ordering otherwise: (2) Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar— (a) must furnish to any party to any proceedings, and (b) may furnish to any other person appearing to have a sufficient interest in the proceedings, a copy of any pleading or other document that has been filed in the proceedings. (Emphasis added.) 1. It follows, in accordance with the principles of statutory construction, that the NCAT Rules validly give a registrar power to make decisions about the inspection of documents by third parties. However, nothing in the NCAT Act, the Tribunal rules or regulations: 1. empowers the President or a Divisional Head to direct a registrar to refer the making of such a decision in a particular matter to the Tribunal; 2. empowers a registrar to refer a particular matter to the Tribunal if the registrar considers it would be more appropriate for the Tribunal to deal with the matter; 3. declares a decision made by a registrar under r 42, to be internally appellable for the purposes of section 32 in certain circumstances; or 4. makes any decision of the registrar under r 42 subject to an order of the Tribunal. 1. The Tribunal has a general power to determine its own procedure, but only "in relation to any matter for which this Act or the procedural rules do not otherwise make provision": NCAT Act, s 38(1). Rule 42 makes provision for decisions to be made by the registrar in relation to the inspection of documents by third parties. The Tribunal, the President or a Division Head may dispense with compliance with any requirements of these rules: r 5. However, dispensing with any of the requirements in r 42 would not have the effect of giving the Tribunal power to consider an application under that rule. The registrar's decision not to give EJK access to the "public access documents" he identified was a final decision. (For a recent discussion of the principle of finality, see Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58 at [37] – [47]). 2. In summary, the Tribunal has no jurisdiction to direct the Registrar as to the determination of an application under r 42 for access to documents in the Registry relating to finalised proceedings. A registrar has a discretion to grant access to, or make copies of, documents to a person who was not a party to proceedings under r 42(2). Any such application would be considered in accordance with NCAT Policy 4 "Access to, and Publication of, Information Derived from Proceedings in the Tribunal". However, there is no entitlement to give, or be given, access to a document if the document is subject to a non-disclosure order: r 42(5)(c). 3. The Tribunal does not have jurisdiction to make the orders sought by EJK in his application. Application to vary the non-publication order 1. In his submissions provided on 15 July 2020, EJK concedes that the existence of the non-publication order prevents the Registrar from permitting access to the documents, as disclosure of the identities of the protected persons is required in the Local Court for at least the purpose of the Local Court making its own non-disclosure or non-publication order. 2. EJK seeks an amendment to his application to overcome that jurisdictional issue (see para [22] above]). He acknowledges that an application would still need to be made to and determined by the Registrar under r 42, subject to the conditions proposed in the amended orders and any further conditions the Registrar considers appropriate. 3. Ms Searle's position is that if EJK applies to vary his application she would wish to be heard on costs. The Law Society's position is that based on the amendment, EJK's application would not be seeking a review or variation of the Registrar's decision under r 42, but rather be brought pursuant to s 64(3) to vary the non-disclosure order. The Law Society neither consents nor opposes the amended orders. 4. The parties have addressed the non-disclosure order in their earlier submissions. The Tribunal allows the amendment, noting that any issue as to costs may be the subject of a separate application. The issue is whether the amendment means that in substance EJK's application is one for a variation of the order made under s 64(1) in the Disciplinary Proceedings, and if so, whether such an order should be made. Tribunal's power to vary a non-disclosure order 1. It is not in dispute that the Tribunal has power to vary or revoke an order made under s 64(1) of the NCAT Act. Depending on the terms, variation or revocation of the order could remove the barrier posed by r 42(5)(c) to the Registrar granting access to the public access documents; it would not of itself mean that access would be granted. 2. Section 64 of the NCAT Act provides: 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. While s 64(1) provides that the Tribunal may make an order if "satisfied that it is desirable to do so by reason of the confidential nature of the evidence or matter or for any other reason", no grounds are specified in s 64(3) for a variation or revocation of an order. Section 64(1) specifies that an order may be made by the Tribunal of its own motion, or on the application of a party. The Tribunal is of the view that the considerations relevant to the making of an order are also relevant to a decision to vary or revoke an order; and that in the absence of any specification in s 64(3) as to who may make an application to vary or revoke an order, such an order would be one made by the Tribunal of its own motion. If an application under s 64(3) can be made by a person who was entitled to apply for an order under s 64(1), that would not include EJK, who was not a party to the Disciplinary Proceedings. Whether an order should be made under s 64(3) of the NCAT Act 1. EJK relies on the decision of the Tribunal in BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291. In proceedings brought under the Child Protection (Working with Children) Act 2012 by BJQ for review of refusal of a Working with Children Check Clearance, an order was made under s 64 prohibiting publication of information that would identify the applicant or any children, or evidence before the Tribunal that would be likely to identify those persons. After the proceedings were determined, the child victim of the alleged sexual abuse found by the Tribunal to have been perpetrated by BJQ died. The Director of Public Prosecutions was considering whether BJQ should be prosecuted for the event which was found by the Tribunal to have occurred applying the civil standard of proof, and sought to have the order varied so as to enable it to apply for access to the exhibits and oral evidence of BJQ. 2. The Tribunal considered that there was a significant public interest in the request, because it would assist the DPP to determine whether a prosecution should occur. While BJQ was, as a consequence of the Tribunal's decision, prevented from working in child related employment, if he were prosecuted there was a public interest in determining his criminal culpability. That would have deterrent and educative social implications for the protection of children and potential victims from abuse. The Tribunal commented: 7. This protection is the paramount consideration in decisions made under the Child Protection (Working with Children) Act. This is a powerful consideration for dispensing or varying the non-publication order, but not the only consideration to be weighed in the balance. The functions of the Tribunal to protect children from abuse may be compromised by the divulging of information previously obtained in a confidential environment where the primary function is not punitive, but protective. This is a factor which should also be weighed in the balance. 1. The parties to the original proceedings, BJQ and the Children's Guardian, were given notice of the application and neither made any submissions. 2. The Tribunal considered the nature of the charges laid against BJQ in the criminal proceedings, and noted that while the identity of the child victim had been protected, after her death that protection under the Children and Young Persons (Care and Protection) Act 1998 and the Crimes Act 1900 ceased. The Tribunal noted the DPP's submission that it did not intend to publish or disseminate the information, rather access to the file was sought in order to assist in determining whether to revive the criminal prosecution of BJQ. In determining that the order should be revoked, the Tribunal concluded: 28. It is no longer 'desirable' for the identity of BJQ to be suppressed in order to protect the identity of the complainant. It is in the public interest for the identity of BJQ to be known and for a publication which may thereby identify the complainant to be made. In those circumstances it would no longer be an offence to publish information which may tend to identify the complainant, since the provisions of the applicable legislation referred to earlier in these reasons were released by the death of the complainant. The open justice principle requires that the information no longer be suppressed by the non-publication order. 1. The circumstances that made it appropriate for the non-disclosure order in BJQ to be revoked are not evident in the present application, for the following reasons. 2. In the Disciplinary Proceedings the Tribunal stated the reason for making the order under s 64 was as follows: 73. The Law Society submits, and the Solicitor agrees, that an order should be made under s 64 of the NCAT Act restricting the publication of the names of the complainant, the Husband, the Wife, and the step-daughter of the Husband from his previous marriage. The names of those individuals are not anonymised in the evidence provided by the parties in these proceedings. The Tribunal agrees that it is desirable that such an order be made, in particular because the findings and orders required to be made concerning the Solicitor's conduct can be made without the need to identify those individuals, and the proceedings between the Wife and Husband are ongoing, and the allegations made involving the step-daughter are serious. 1. The Disciplinary Proceedings were brought by the Council of the Law Society of New South Wales under the Legal Profession Uniform Law (NSW) (Uniform Law), having been referred a complaint by the Legal Services Commissioner. The terms of the two complaints in the application, and Ms Searle's Reply, including the admissions made by Ms Searle, are summarised at paras [10]-[14] of the decision in the Disciplinary Proceedings. The Tribunal found that Ms Searle's conduct as particularised in Complaint 1 was unsatisfactory professional conduct as defined in the Uniform Law (at [31]), and her conduct as particularised in Complaint 2 was professional misconduct (at [34]). As discussed at paras [58]-[61], in determining the appropriate disciplinary orders the Tribunal had regard to Ms Searle's affidavit and oral evidence, and character references. The purpose of those orders, as discussed at [66], included acknowledgement of the significance of the misconduct, protection of the public against future misconduct and against similar defaults by other practitioners, publicly marking the seriousness of the conduct, and ensuring maintenance of the high standards of the profession. 2. There are similarities, as in both BJQ and the present application access to the documents is sought by a non-party to the original proceedings for the purpose of criminal proceedings against a party to those proceedings. However, in BJQ the order was made to protect the identity of the child victim, and BJQ's identity was suppressed in order to protect the identity of that person. The purpose served by that protection was fundamentally altered by the death of the child victim. In the Disciplinary Proceedings the order under s 64 was made to protect the identity of persons in sensitive family law proceedings who were not parties to the disciplinary proceedings under the Uniform Law, and who did not give evidence in those proceedings. The purpose served by continuing that protection is not altered by the fact that EJK knows the identity of those persons. In contrast with BJQ, where neither of the parties to the original proceedings, namely BJQ and the Children's Guardian, made submissions, the present application is opposed by one of the parties to the Disciplinary Proceedings, and is made in the absence of the Wife and the step-daughter. 3. Further, the access sought in BJQ was for the internal processes of the DPP, whereas in this application, further dissemination or publication of any of the material is, under the conditions proposed by EJK as part of the varied non-disclosure order, dependent on further application being made to, and orders made by, the Local Court. 4. The criminal proceedings initiated by EJK have been commenced, without the documents, and there is substance in Ms Searle's submissions that access now to material before the Tribunal in the Disciplinary Proceedings would serve primarily to provide material to assist EJK's case, and not to discharge any duty of disclosure on EJK as prosecutor. That is evident in the breadth of the request for access, in which the initial request to the Registrar was for the affidavit of Ms Searle sworn 7 November 2018, subsequently broadened in the orders sought to be "any documents related to the Tribunal Proceedings including any affidavit exhibit, sound recording and transcript"; and then further broadened to include other documents within the term "public access documents" including the initiating Application and Reply. 5. The fundamental issue with the amendments proposed by EJK is that the orders sought are still, in substance, orders which would determine how the Registrar could consider any further application under r 42 for access to the information, in the hope that that may assist EJK in the criminal proceedings. If the amended application is to be regarded as, in substance, an application for an order under s 64(3) of the NCAT Act for a variation of the non-disclosure order made in the Disciplinary Proceedings, so as to remove the barrier to any consideration by the Registrar for access under r 42, the Tribunal is not persuaded that it is desirable that a variation to the terms of that non-disclosure order should be made so as to facilitate that access. That is because the purpose of the original order, being to protect the interests of persons involved in sensitive family law proceedings, and whose views have not been heard, has not changed; because the further dissemination of any of the material provided for the purpose of the Tribunal proceedings is dependent on further processes and orders of the court; and because disclosure is likely to serve primarily to assist EJK's case rather than discharge any duty of disclosure he owes as prosecutor. Orders 1. The Tribunal orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. 2. The application is dismissed. ********** 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: 16 September 2020