Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Konstantinidis (No 4) [2021] NSWCATOD 94 Hearing dates: 17 May 2021 and by written submissions dated 26 May 2021, 27 May 2021 and 4 June 2021 Date of orders: 14 July 2021 Decision date: 14 July 2021 Jurisdiction: Occupational Division Before: The Hon J Boland AM, Deputy President Decision: The application of Simon Konstantinidis for non-publication orders pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed. Catchwords: OCCUPATIONS — legal practitioners — solicitors — non-publication orders — whether principles of res judicata apply — open justice — whether "desirable" to make order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW) (repealed) Legal Profession Uniform Law (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506 Council of the Law Society of New South Wales v Levitt [2019] HCA 78 (12 April 2019) Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22 Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227 Levitt v Council of the Law Society of New South Wales [2017] NSWSC 834 Merrilyn Walton v Alexander Sergevich Momot [1997] NSWCA 334 Peareth v Marriott (1882) 22 Ch D 182 Pearson v Clark [2016] NSWCATAP 134 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Texts Cited: Spencer Bower and Handley, Res Judicata (5th ed, 2019, LexisNexis) Category: Procedural rulings Parties: Council of the Law Society of New South Wales (Applicant) Simon Konstantinidis (Respondent) Representation: Counsel: T L Wong SC (Applicant) P Lowson (Respondent) Solicitors: Council of the Law Society of New South Wales (Applicant) Carneys Lawyers (Respondent) File Number(s): 2016/00378572 Publication restriction: Nil REASONS FOR DECISION The application 1. These reasons are in respect of an application by Simon Konstantinidis (the practitioner) for an order "that his name be anonymised". No formal application has been filed by the practitioner; rather the order proposed is set out in par 2 of the affidavit of Stephen John Titus (Mr Titus) sworn 24 February 2021. Mr Titus is the practitioner's solicitor. Different proposed orders are set out in par 18 of written submissions filed on behalf of the practitioner, namely an "order withdrawing the publication of the liability decision and the penalty decision, strictly in the alternative the respondent seeks to substitute anonymised initials for the respondent's name in the decision title and content". 2. In support of his application the practitioner relies on his affidavit sworn on 18 December 2020 and the affidavit of Mr Titus. 3. The practitioner's counsel, Ms P Lowson, provided written submissions in support of the practitioner's application on 24 February 2021. 4. The Council of the Law Society of New South Wales (the Law Society) filed submissions in respect of the application of the practitioner on 16 March 2021. 5. In par 2 of its submissions the Law Society states "it does not oppose the making of the anonymisation orders" but explains in the submissions the Law Society "seeks to discharge its ethical obligation to the Tribunal" by bringing to the Tribunal's attention the relevant principles to be applied in determining the application. The submissions highlight two issues. First, has this application already been determined by the NSW Court of Appeal thus raising issues of res judicata and issue estoppel and secondly as to the nature of the Tribunal's jurisdiction under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 6. Following service of the Law Society's submissions on the practitioner, his counsel provided further written submissions on 16 May 2021. Those submissions advanced challenges in respect of the Law Society's submissions on res judicata and issue estoppel. 7. Following oral submissions before me, directions were made for the filing of further submissions as to whether the principles of res judicata applied to interlocutory orders. I also raised with Ms Lowson whether the practitioner sought an order that these reasons also be anonymised in the event the practitioner's application was successful. Submissions were received by the Tribunal on this topic. Ms Lowson sought, in the event the practitioner's application was granted, that his name in these reasons also be anonymised. 8. The Law Society provided helpful submissions on 27 May 2021 and the practitioner's further submissions were received on 4 June 2021. 9. For the reasons that follow I have determined that the application should be dismissed. Issues to be determined in this application 1. Two principal issues arise for determination: 1. Is there jurisdiction to make the orders sought, or has the matter been finally determined by the NSW Court of Appeal? 2. Is it desirable to make the orders sought, or should the general principles of open justice prevail? Procedural history 1. It is relevant that I set out a brief chronology of the procedural history that led to this application coming before me. 2. On 23 September 2020 the NSW Court of Appeal published reasons for decision in respect of an appeal filed by the practitioner against orders made by the Tribunal in disciplinary proceedings brought against the practitioner (Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227). The Court of Appeal dealt with the practitioner's appeal "on the papers". This occurred in circumstances where the parties filed Terms of Settlement and proposed Consent Orders. The Court allowed the appeal as to grounds 1 and 3, and set aside the orders of the Tribunal made on 3 July 2019 and 20 February 2020. The Court dismissed the disciplinary application made by the Law Society, and ordered that each party pay its own costs of the proceedings in the Tribunal and the Law Society pay the practitioner's costs of the appeal. 3. In [18]‑[26] of his reasons Gleeson JA explained why the Court would not, on a re-exercise of discretion, make the orders now sought by the practitioner. At [26] his Honour explained: "Given the above reasons for refusing to make proposed orders 4, 5 and 6, it is not appropriate to accede to the parties' alternative submission that this Court remit the matter to the Tribunal with a view to the parties asking the Tribunal to make those orders." 1. On 8 October 2020 the practitioner's solicitor wrote to the Tribunal enclosing documents which had been filed in the Court of Appeal (Consent Orders and Terms of Settlement) and a copy of the orders and judgment of the Court of Appeal. The solicitor's letter referred to the Terms of Settlement (which noted the Court of Appeal may decline to make the non-publication orders sought). The letter concluded: "This letter is sent with the consent of the solicitors for the Society. We are sending a copy to them. We ask that you take immediate steps to anonymise the name [sic] to remove the surname of our client as soon as possible. In the alternate, we will make a formal application to the Tribunal for the necessary orders." 1. On 14 October 2020 the Registrar wrote to the practitioner care of his solicitors. The Registrar referred to the letter dated 8 October 2020. The Registrar also advised: "The members constituting the panel in these proceedings have considered your request. They have declined to make the orders requested in that letter. Paragraph 26 of the judgment of the Court of Appeal dated 23 September 2020 states ... Accordingly, the Tribunal does not consider that it has jurisdiction to entertain the request." 1. On 28 October 2020, the practitioner's solicitors wrote to the Registrar and requested the matter be listed before the List Judge of the Occupational Division to enable the practitioner to make submissions about jurisdiction to make anonymisation orders and the making of such orders. 2. In response to the practitioner's request the matter was listed before Cole J on 2 December 2020. 3. On 21 December 2020 the practitioner filed an affidavit sworn 18 December 2021 in the Tribunal. 4. On 1 March 2021 Cole J made orders vacating the orders made on 2 December 2020. Her Honour ordered that the practitioner may file and serve submissions regarding jurisdiction and the merits of the application for anonymisation on or before 24 February 2021. The orders provided for the practitioner to file any further affidavit evidence by 24 February 2021. The orders also provided that the Law Society may file written submissions on jurisdiction and the merits of the application for anonymisation and any material in reply by 22 March 2021. The matter was stood over for directions on 7 April 2021. 5. On 24 February 2021 the practitioner's solicitor filed an affidavit sworn on that day. Mr Titus, the deponent, sets out the history of the disciplinary proceedings instituted on 13 August 2018 and which were found to be without jurisdiction by the Tribunal. 6. On 7 April 2021 I made orders listing the matter before me for hearing for 2 hours on 17 May 2021 at 10am. Following the hearing of oral submissions the parties filed further written submissions. Relevant background 1. This matter has had a long history in the Tribunal. 2. On 8 January 2016 the Law Society filed an application for disciplinary findings and orders in the Tribunal. The proceedings were heard over a number of days (20 February 2017, 26 May 2017, 29 and 30 August 2018 and 12 December 2018). On 3 July 2019 the Tribunal published reasons for decision (the liability decision) and made findings that the practitioner was guilty of professional misconduct in respect of grounds 1 and 2 and was guilty of unsatisfactory professional misconduct in respect of ground 3(a). The Tribunal dismissed ground 3(b). These proceedings were agitated under the Legal Profession Act 2004 (NSW) (repealed) (the LPA). 3. During the proceedings the practitioner raised a jurisdictional issue which was dismissed by the Tribunal on 4 July 2017. An appeal against the Tribunal's order was unsuccessful, with the appeal being dismissed on 27 March 2018. 4. After publication of its liability decision the Tribunal conducted the second stage of the disciplinary proceedings to determine appropriate protective orders and published reasons and made orders on 20 February 2020. In the submissions the parties refer to this decision as "the penalty" decision. 5. Earlier, on 13 August 2018, the Law Society commenced disciplinary proceedings in the Tribunal against the practitioner in respect of complaints under the LPA and under the Legal Profession Uniform Law (NSW). The practitioner in his Reply document challenged the proceedings on the basis that the NSW Legal Services Commissioner had not properly delegated certain functions to the Law Society. 6. On 25 June 2019 the Tribunal upheld the practitioner's jurisdictional challenge and the proceedings filed on 31 August 2018 were dismissed. 7. Following the dismissal of the proceedings the Law Society consented to the request made on behalf of the practitioner that the reasons for the dismissed disciplinary proceedings should be anonymised. The decision was thereafter reported using a pseudonym. 8. On 18 May 2020 the practitioner filed an appeal in the NSW Court of Appeal against the Tribunal's liability and penalty decisions of 3 July 2019 and 20 February 2020. On the latter date orders were made that the practitioner be reprimanded, that he pay a fine of $8,000 and undergo further education in relation to trust accounting and ethics. 9. On 23 September 2020 the Court of Appeal made consent orders allowing the practitioner's appeal on the basis that the Tribunal had no jurisdiction to hear the matter. It was unnecessary for the Court of Appeal to determine other grounds of appeal agitated by the practitioner. However, the Court of Appeal declined to make orders sought by consent: 1. removing the liability and penalty decisions from the NSW Caselaw web-site; 2. requiring the Registrar to write to various legal publishing web-sites requesting removal of the decisions from the web-sites; and 3. before being re-published the practitioner's name be replaced with initials and the name of his firm be anonymised. Relevant legislation – the NCAT Act 1. The practitioner seeks the making of a non-publication under s 64 of the NCAT Act. Section 64 is found in Division 6 of Part 4 of the NCAT Act. Part 4 deals with practice and procedure. Section 64 provides as follows: 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. Also relevant to this application is the definition of an interlocutory order in s 4 of the NCAT Act. Section 4(b) defines: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following— … (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, … The Court of Appeal decision 1. It is necessary that I refer to the reasons of Gleeson JA (with whom Macfarlan JA and N Adams J agreed). 2. Gleeson JA explained at [3] that although the Court of Appeal has power to dispose of an appeal by consent, the Court had requested the parties to file written submissions as to why the Consent Orders were appropriate. His Honour further explained that, after receipt of the submissions, the Court indicated it would deal with the matter on the papers and was prepared to make orders in terms of order 1 (subject to the addition of the words as to "grounds 1 and 3") but was not disposed to make orders 4, 5 and 6, or remit the matter to the Tribunal as the parties had requested if the Court did not make those orders. His Honour recorded: "The Court offered the parties an oral hearing if they wished to argue to the contrary. The parties declined that opportunity." 1. The Court of Appeal explained that it was appropriate to allow the appeal because the Law Society had failed to engage in the necessary compound exercise required under ss 540 and 537(2) of the LPA prior to commencing proceedings in the Tribunal and this resulted in jurisdictional error. 2. I pause to note that in separate proceedings (Levitt v Council of the Law Society of New South Wales [2017] NSWSC 834) Wilson J held that a failure by the Law Society to comply with the requirements of ss 540 and 537(2) meant that the resolution of the Council to commence proceedings in the Tribunal should be quashed and that the Law Society was restrained from taking further steps in the proceedings in the Tribunal. The Court of Appeal recorded that it was unfortunate that the Law Society did not bring Wilson J's decision to the attention of the panel hearing the disciplinary proceedings in this matter. 3. At [17] the Court of Appeal noted that the Law Society had only conceded the jurisdictional point, and the proposed consent order disposing of the appeal should be amended accordingly to reflect this fact. 4. At [18]‑[19] the Court of Appeal referred to the orders sought on the re-exercise of discretion by it, and noted the proposed non-publication and other consequential orders were sought under s 64 of the NCAT Act. 5. The Court of Appeal's decision in refusing to make the order under s 64 is germane to this application. At [21]‑[26] Gleeson JA explained why the proposed consent order should not be made: "[21] I am not persuaded that the proposed anonymisation order is desirable. [22] First, the hearing before the Tribunal was conducted in public [16] and no order was made by the Tribunal under s 64(1) of the NCAT Act for the non-publication of the name of the legal practitioner. Further, the appeal to this Court in 2018 was heard in open court, and no application has been made in relation to this appeal for any non-publication order under the Court Suppression Act. [23] Second, the onus is on the legal practitioner to demonstrate that an order is "desirable". The bare assertion of significant adverse consequences to his professional and personal reputation was not supported by any evidence. [24] Third, the appeal has been allowed on a limited basis, and the reasons and orders of this Court may be referred to and relied upon by the legal practitioner to vindicate his success on the jurisdictional ground on appeal. It would be inconsistent with the principle of open justice, which applies in relation to court proceedings, [17] if the legal practitioner is identified by name in this Court, but at the same time this Court, exercising the powers of the Tribunal, made a non-publication order retrospectively anonymising the legal practitioner's name in the reported decisions of the Tribunal. There should be transparency in relation to the outcome of the disciplinary proceedings in the Tribunal. The proposed order is not desirable to achieve the due administration of justice in those proceedings. [25] In the circumstances, it is not necessary to separately consider whether the ancillary orders sought in orders 4 and 5 are appropriate. Those orders are dependent on the Court making order 6. [26] Given the above reasons for refusing to make proposed orders 4, 5 and 6, it is not appropriate to accede to the parties' alternative submission that this Court remit the matter to the Tribunal with a view to the parties asking the Tribunal to make those orders." The evidence and submissions The practitioner's solicitor's affidavit 1. The practitioner relies on the affidavit of Mr Titus sworn 24 February 2021. Mr Titus' affidavit relates to the steps taken to have the proceedings dismissed on 25 June 2019 by reason of non-compliance with the delegation requirements of the Uniform Law. He also deposes that after the Tribunal decisions the subject of appeal he wrote to Thomson Reuters, who had published the decisions on Westlaw, requesting a notation above the decisions be published explaining that the decision had been set aside and the disciplinary action dismissed by the Court of Appeal on 2 October 2020. Mr Titus annexes to his affidavit an email from Thomson Reuters which draws attention to how decisions are published, with a note that the Tribunal's decisions were "reversed" by the Court of Appeal. The practitioner's affidavit 1. As noted above the practitioner filed an affidavit sworn 16 December 2020. No objection was taken by the Law Society to reliance on the affidavit nor were any objections taken to the contents as would be the normal case in final defended proceedings. I observe that the affidavit contains a number of first and second-hand hearsay statements and opinion evidence. 2. In the affidavit the practitioner refers to the history of the proceedings in the Tribunal, the orders made and the filing of his appeal in the Court of Appeal. 3. The practitioner deposes to discussions with the Law Society and the agreement to allow his appeal. The parties prepared Terms of Settlement that provided as follows: 1. The parties agree that the Court by consent make orders in the form of the attached Consent Orders. 2. The Respondent agrees not to enforce the costs order against the Appellant ordered in Court of Appeal proceedings number 228896/2017. 3. The parties acknowledge that the Court may not make Orders in accordance with proposed Order 4, 5 and 6 of the attached Consent Orders. In this event, the Appellant shall approach the Tribunal to seek orders to the like effect. The Respondent will not oppose any such Application by the Appellant and will use its best endeavours to assist in anonymisation of the Tribunal decisions identified in proposed Order 4, 5 and 6. 4. The parties agree that the Respondent will not recommence proceedings in relation to any matter that is the subject of the Application made by the Respondent to the Tribunal on 7 January 2016. 5. Within 14 days of the Court making the Orders as set out in the Short Minutes of Order, the Respondent shall refund to the Appellant the sum of $8,000.00 paid by the Appellant to the Respondent pursuant to orders of the Tribunal. 1. The practitioner relates that the proposed Consent Orders provided that the appeal be allowed, that the orders of the Tribunal be set aside, that each party pay their own costs of the proceedings in the Tribunal, and that the Law Society pay the practitioner's costs of the appeal. Proposed Orders 4, 5 and 6 were as follows: 4. The reasons for decision known as: (a) Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104; and (b) Council of the Law Society of New South Wales v Konstantinidis (No. 3) [2020] NSWCATOD 91 (and [2020] NSWCATAD 59) (the decisions) be removed forthwith from the New South Wales Caselaw website. 5. The registrar or other appropriate officer of the Court request legal publishers AustLII, LexisNexis, Thomson Reuters Westlaw and JADE to remove the decisions from their websites. 6. Before being republished on New South Wales Caselaw, the decisions be anonymised as follows: (a) the name of the Appellant be replaced with letters; (b) the name of the legal practice Konstan Lawyers be anonymised. 1. The practitioner deposes that on 8 October 2020 the practitioner's solicitor wrote to the Tribunal noting the parties had anticipated that the Court of Appeal may not make proposed orders 4, 5 and 6, and had agreed that the practitioner could approach the Tribunal and seek such orders. The letter requested the Tribunal take immediate steps "to anonymise the name [sic] to remove the surname of our client as soon as possible". The letter noted "in the alternate, we will make a formal application to the Tribunal for the necessary orders". The practitioner states that on 14 October 2020 the Registrar wrote to the practitioner declining to make the orders sought. A copy of the letter is annexure "E" to the practitioner's affidavit. 2. The practitioner deposes to a Google search conducted as at 18 December 2020 which he says discloses information from the publication "Lawyers Weekly" referring to the 31 July 2019 orders and the orders made by the Tribunal on 21 February 2021. 3. The practitioner deposes to instructing his solicitors to write to a number of legal publishers to remove or update the decisions from their web-sites. He also deposes to instructing his solicitors to write to New South Wales Caselaw "requesting that the decisions be corrected and the reference to my name be replaced with a letter and the name of my legal practice be anonymised". 4. The practitioner deposes to having been a solicitor since 1983 and being distressed by the disclosure of his name in articles and publications relating to these proceedings. 5. The practitioner deposes to symptoms he says he has suffered as a result of the publication of the proceedings including "complete despair", feeling "completely numb" and nauseous, inability to concentrate, irritability, difficulty sleeping, feeling under intense financial pressure and becoming socially withdrawn. 6. The practitioner refers to the financial burden he has experienced in funding his legal costs in the disciplinary proceedings and the Court of Appeal which he says have been in excess of $450,000 and required him to increase his mortgage and to borrow from his bankers. 7. The practitioner refers to the "heavy toll" the proceedings caused to his personal life by reason of the need to attend directions hearings and the disciplinary proceedings. He says that the disciplinary proceedings also adversely impacted members of his family who were aware of the proceedings. 8. The practitioner also deposes that the volume of work he has received has "dropped off significantly" following the publication of the Tribunal's decisions although he does acknowledge some decline in work due to the COVID-19 pandemic. 9. The practitioner deposes: "My accountant has calculated that my monthly earnings prior to Covid 19 impact in respect of fees received for the period 1 October 2019 to 31 March 2020 decreased 47.69 per cent from the corresponding period of 10 October to 31 March 2019 of the preceding year. I attribute the dramatic loss in fees primarily to the reported and published decisions in the Tribunal on 3 July 2019 and 20 February 2020. I observed a significant fall in the office workload from late September 2019." 1. At par 26 the practitioner deposes to receiving approximately 12 authorities from clients to transfer their files to other firms and says that this did not happen in the past. 2. The practitioner deposes to a conversation with a long-standing client who asserted he was transferring his file because his partner wanted him to go elsewhere. The practitioner says "I felt that the disclosure of my name in publications was the reason why the client requested the transfer". 3. The practitioner states that he has been a solicitor in practice in the Marrickville area for 37 years and that he is well known in the community, is an active member of the Greek community and has a number of clients who are Greek. He deposed that he has been on the Marrickville Chamber of Commerce since 2014. The practitioner says that members of the Chamber of Commerce are not as friendly to him as they were prior to the publication of the Tribunal's decisions. 4. The practitioner refers to a number of conversations he says were repeated to him in 2020. 5. The practitioner refers to his distress that his father, who knew about his appeal to the Court of Appeal, died prior to the appeal being determined. He also deposes to his elderly mother being upset and embarrassed by the proceedings and an adverse impact on some of her friendships. He also asserted the publication in "Lawyers Weekly" which comes up on a Google search has had an adverse impact on his three adult children, two of whom are lawyers. The practitioner also deposes to embarrassment caused to his wife by reason of the Tribunal's published findings. 6. The practitioner concludes his affidavit: "In circumstances where my honestly relating to failing to account has been given publicity, it is important for me personally and professionally to remove that stain against my name." The practitioner's submissions dated 24 February 2021 1. The submissions set out the history of the proceedings in the Tribunal and refer to the decision in the Levitt proceedings. In respect of the latter proceedings the submissions note that Mr Levitt had the advantage that no decisions were ever published making adverse findings against him. 2. At par 11 of the submissions it is submitted that "the respondent [the practitioner] is strongly of the view that the applicant [the Law Society] acted mal fides in continuing these disciplinary proceedings against the respondent… in full knowledge of the point being taken in the Levitt proceedings". The submissions advance further propositions under this topic, namely, that the same issue identified in Levitt adversely affected these proceedings, depriving the Tribunal of jurisdiction, and that the Law Society was on notice of the Supreme Court decision on the compound exercise required under the LPA but took no steps to prevent the Tribunal "wasting time and resources in hearing the matter", having 10 separate opportunities to do so. 3. Before me, in support of her oral submissions, Ms Lowson tendered, without objection, the transcript of the special leave application in the High Court in Council of the Law Society of New South Wales v Levitt [2019] HCA 78 (12 April 2019). Ms Lowson drew my attention to the argument advanced in the High Court in support of the special leave application (which was dismissed) that the Law Society had identified a number of matters potentially affected by the Levitt decision. She submitted I could draw the inference that the practitioner's matter was one of the matters identified in a schedule provided to the High Court. 4. It is submitted that the proceedings "amount to an abuse of process". Paragraph 14 of the submissions is directed to the asserted consequences of the failure of the Law Society to promptly discharge its obligations as a model litigant. It is pointed out that the Law Society did not concede the Levitt point until it was raised in the practitioner's submissions filed in the Court of Appeal in August 2020. 5. At par 18, the submissions explain that the practitioner seeks an order withdrawing the publication of the liability decision and the penalty decision and "strictly in the alternative" the practitioner seeks to substitute anonymised initials for his name, relying on s 64(1)(a) of the NCAT Act. 6. These submissions do not address principles of res judicata or issue estoppel. Rather, at par 20, the submissions acknowledge the reasoning of Gleeson JA, with whom Macfarlan JA and N Adams J agreed, in refusing to make the non-publication and other orders sought. The submissions then advance the following in support of why, notwithstanding the Court of Appeal's orders, this application should be granted: "However, the Court identified in those paragraphs that it had not had the benefit of oral submissions, or any submissions regarding abuse of process arising from the Law Society's silence, nor did the Court of Appeal have the benefit evidence [sic] from the respondent, so there is no impediment to the Tribunal considering these matters afresh." The Law Society's submissions dated 16 March 2021 1. The Law Society commences its submissions explaining that it does not oppose the making of the anonymisation orders, and in providing the submissions seeks to discharge its ethical obligation "to inform the Tribunal of relevant principles", namely whether the issue has already been determined by principles of res judicata and issue estoppel by the Court of Appeal and the nature of the Tribunal's jurisdiction under s 64 of the NCAT Act. Later, at par 15, the submissions explain that the Law Society does not oppose the making of orders of the type set out in the practitioner's submissions at par 18. However, after setting out a number of authorities considering principles of res judicata and issue estoppel the submissions, at par 24, state the Law Society is not able to consent to the making of the orders sought if either the principles of res judicata or issue estoppel apply. 2. The submissions state that the Law Society rejects any suggestions it acted "mala fides" in continuing the disciplinary proceedings. 3. The submissions draw attention to a decision of the Appeal Panel of this Tribunal (Pearson v Clark [2016] NSWCATAP 134 at [63]‑[66]) noting that the Appeal Panel's decision referred to the judgment of Fullagher J in Jackson v Goldsmith (1950) 81 CLR 446 at 466-8; [1950] HCA 22 dealing with the circumstances in which the principles of res judicata apply and explaining the difference between res judicata and issue estoppel. The practitioner's submissions in reply dated 16 May 2021 1. The practitioner relies on submissions in reply. The submissions re-agitate the asserted relevance of the Law Society's conduct of the matter as to whether it is "desirable" for "any other reasons" to make the orders sought. 2. The submissions stridently refute the Law Society's submissions on res judicata and issue estoppel and advance the position that an order under s 64 is an interlocutory application, and as such it is one that can be made on more than one occasion. It is submitted that a failed interlocutory application can be revisited with the same court or tribunal, and the court or tribunal may entertain such an application if the applicant can demonstrate a change in circumstances or evidence to that put in the prior failed application. 3. At par 8 of the submissions it is asserted: "Conversely, the principles of res judicata and issue estoppel are only relevant to the final determination of substantive proceedings in which a cause of action, or an issue has been finally determined. The principles simply do not arise in these proceedings." 1. As Senior Counsel for the Law Society was not in a position to respond to the practitioner's submissions in reply, which had been received on short notice, and in response to my request, further submissions were provided on the topic. 2. In submissions received on 27 May 2021 from the Law Society reference is made to the definition of an interlocutory order in s 4 of the NCAT Act. The submissions go on to state "Thus, it is readily apparent that the current application is lnterlocutory in nature". 3. At par 6 the submissions acknowledge that the practitioner's submission that "in the course of a proceeding, the dismissal of an interlocutory application does not preclude a further application" is "broadly correct" but go on to state, by reference to authority, that "the same issue should be supported by fresh evidence or argumentation". Consideration – res judicata and/or issue estoppel 1. Prior to commencing my discussion of the relevant legal principles, I acknowledge with thanks the very helpful submissions of the parties on this topic. 2. The relevant authorities are extensively discussed in Pearson v Clark [2016] NSWCATAP 134 at [63]‑[66]. In Jackson v Goldsmith (1950) 81 CLR 446 at 466-8; [1950] HCA 22, Fullagher J distinguishes between res judicata and issue estoppel. 3. Although in her subsequent submissions Senior Counsel for the Law Society acknowledged that an interlocutory decision involving issues of practice and procedure is not generally subject to principles of res judicata, in order to deal with the issues raised in this application it is appropriate to refer to Fullagher J's decision. His Honour explained: "The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa.' The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v Morewood (1803) 3 East, at p 355 (102 ER, at p 633). His Lordship said that parties and privies are 'precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them… has been, on such issue joined, solemnly found against them.' This is, I think, a true case of estoppel, analogous to estoppel by deed and estoppel by representation. The same rule was concisely stated by Dixon J. in Blair v Curran (1939) 62 CLR, at p 531 where his Honour said:‑ 'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.' It is unnecessary here to discuss these two principles further beyond noting two points. In the first place, if A sues B to judgment and in subsequent proceedings between them a plea of res judicata is raised, the primary question will be whether the cause of action in the later proceedings is the same as that which was litigated in the former proceedings. This was the question which arose in the well-known case of Brunsden v Humphrey (1884) 14 QBD 141. It was held there that the causes of action were not the same. The injuria was the same but the damnum was different, and, since damage was 'of the gist' of the particular action, the causes of action were not the same. The plea therefore failed. On the other hand, if A sues B to judgment and in subsequent proceedings between them a plea of issue estoppel is raised, the plea may succeed although the causes of action in the two cases are entirely different. The question will be whether an issue of fact or law which is raised in the later proceedings was an issue of fact or law which was also raised in the earlier proceedings and therein determined. In the second place, it follows from the very nature of the difference between the plea of res judicata and the plea of issue estoppel that different materials are relevant in each case. Where the plea is of res judicata, only the actual record is relevant. Where the plea is of issue estoppel, any material may be looked at which will show what issues were raised and decided. Reasons given for the judgment pronounced are likely to be particularly important for this purpose: see Ord v Ord (1923) 2 KB, at p 440 and Marginson v Blackburn Borough Council (1939) 2 KB, at p 437. Both those cases were cases of issue estoppel and were clearly treated as such, though I think, with great respect, that both illustrate the unfortunate absence of a clear legal terminology, to which I have already referred. It should perhaps be added that, as Dixon J. pointed out in Blair v Curran (1939) 62 CLR, at p 532, the estoppel, so far is it applies to facts, is confined to ultimate facts. It does not extend to mere evidentiary facts." 1. In Spencer Bower and Handley, Res Judicata (5th ed, 2019, LexisNexis) the learned authors explain at 5.31 "Other interlocutory decisions before or after the final decree may determine some question so that it becomes res judicata". This statement refers to the decision of Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506 at 536. The learned authors also refer to a decision in an administration of an estate made pending further order fixing an amount to be paid to a widow and the method of payment. The decision was determined to be final as to the widow's entitlement and was res judicata (Peareth v Marriott (1882) 22 Ch D 182). 2. At 5.32 the learned authors say: "The dismissal of an interlocutory application on procedural grounds or the merits is not final and does not bar a further application although it is not likely to succeed unless supported by additional evidence or a different argument. Courts have sometimes enforced a requirement for the additional evidence to be fresh but in other cases a second application has been granted on evidence that should have been before the court on the first." 1. The authors also note that: "Interlocutory orders in matters of practice and procedure, such as an interlocutory injunction, remain under the control of the court, and subject to review". Conclusions 1. The authorities and the parties' submissions on the question of res judicata support a conclusion that an order made pursuant to s 64 of the NCAT is an interlocutory order about practice and procedure. This conclusion is based on the definition provided in s 4 of the NCAT and the fact that s 64 is found in Part 4 of the Act dealing with practice and procedure. I also rely on and adopt the authorities discussed above in reaching my conclusion. 2. The order is one made under legislation (the NCAT Act). The plain reading of s 64 does not denote a temporal connotation linked to present proceedings (cf cl 7 of Schedule 5D to the Health Practitioner Regulation National Law (NSW) (see Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135). 3. I conclude therefore that the Tribunal is not precluded by the principles of res judicata in determining whether it is desirable for some reason or reasons to make a non-publication order. 4. Little argument was addressed by the parties to the question of issue estoppel. The question of whether refusal to make the non-publication orders sought by the Court of Appeal was a determination of fact or law which precludes the present application is one of some difficulty. However, I have determined for the purpose of these reasons it is not a matter which I need resolve because of my conclusion on the ultimate issue. Should a non-publication order be made? Criteria relevant to the making of a non-publication order The authorities 1. Is not in dispute that the Tribunal, as with other courts and tribunals in New South Wales, unless subject to a specific statutory exemption, is bound to uphold the principles of "open justice" and transparency. Tribunal proceedings are generally open to the public and disciplinary decisions are published on NSW Caselaw. 2. Section 64 requires consideration of whether it is desirable to make an order, because of the confidential nature of the matter or for some other reason, restricting amongst other matters the name of a person, or documents used in the proceedings. Authorities dealing with disciplinary proceedings have referred, by reference to authority, for special, exceptional or out of the ordinary circumstances to exist before the Tribunal will make a non-publication order because such an order detracts from the overarching principle of "open justice" :see Cakan v Health Care Complaints Commission [2020] NSWCATOD 116, quoting Handley JA with whom Priestley JA and Grove AJA agreed in Merrilyn Walton v Alexander Sergevich Momot [1997] NSWCA 334. 3. The forerunner of s 64 was discussed by the Administrative Decisions Tribunal (repealed) in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69. 4. At [61] the Appeal Panel noted: "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. At [81]‑[82] the Appeal Panel discussed matters relevant to making an order under s 75(2) of the ADT Act as follows: "[81] It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. [82] In view of Ms Johnson's submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition." Consideration 1. Having determined that, as presently advised, the Tribunal may in its discretion entertain the application and is not bound by principles of res judicata, although it may be precluded by the principles of issue estoppel, I turn to whether or not it is desirable to make the orders now sought. 2. First, the wording of s 64 makes plain that application of the section is a matter of discretion, which discretion must be exercised judicially. 3. The matters which the practitioner agitates in support of the orders may be broadly described as: 1. the conduct of the Law Society in bringing and continuing the proceedings; 2. the fact that no decision adverse to Mr Levitt was ever published but the decisions adverse to the practitioner were published; 3. that the Court of Appeal determined the matter on the papers, and the practitioner did not have the opportunity to put material supporting the making of the orders before the Court; 4. that because of the agreement as evidenced in the Terms of Settlement filed in the Court of Appeal the practitioner did not agitate his other grounds of appeal; 5. the adverse effect of publication on the practitioner's health, finances, his family and his reputation in the community; 6. the Law Society consents to the orders sought; and 7. the Law Society advises that no application will be made to re-agitate the complaints the subject of the relevant disciplinary proceedings. 1. I commence by noting that the Law Society, while consenting to the making of the orders as sought, did not advance any argument why it is desirable to make the proposed orders. The Law Society's submissions strenuously deny any mala fides in its conduct of the proceedings. 2. Doing the best I can in these circumstances, I discern the matters advanced by the practitioner referred to above, and the following matters, are relevant considerations to be taken into account in the exercise of discretion: 1. Do the circumstances on which the practitioner relies oust or over-ride principles of open justice? 2. The weight to be afforded to the strong reasons of the Court of Appeal in rejecting the application to make the orders by consent, and the Court's refusal to remit the matter to NCAT for re-consideration. Of particular relevance is the explanation by Gleeson JA that the appeal was allowed on a narrow point and the order of the Court of Appeal noting the appeal was allowed on grounds 1 and 3 only (the jurisdiction ground). 3. Although the Court of Appeal afforded the parties the opportunity of an oral hearing to argue why proposed orders 4, 5 and 6 should be made, that offer was not taken up by them. No application was made to the Court of Appeal to re-open its decision or set it aside and to rely on fresh evidence. 4. The publication by the Court of Appeal of its decision, including in that decision the references to the liability and penalty decisions at [5]‑[11], which decision does and will remain accessible to the public via legal web-sites. This militates against any practical utility in anonymising the practitioner's name or removing the Tribunal's decisions from NSW Caselaw. 5. The fact that legal publishers note a first instance decision which has been overturned on appeal. 6. The decision of the panel who heard the disciplinary proceedings to reject the application when agitated by the practitioner in the Tribunal after the Court of Appeal decision. Although no reasons were provided for this decision I note that no request for reasons was made by or on behalf of the practitioner under s 62 of the NCAT Act. 7. That any orders now made will not "cure" past reputational damage as asserted by the practitioner and embarrassment or reputational damage may be insufficient to override public interest. Determination of the application 1. I do not find it is necessary or appropriate, given the material before me on this application, to make findings that the Law Society breached its obligations as a model litigant. 2. I accept the practitioner's evidence that the proceedings were continued after the Levitt decision and that he is understandably aggrieved by this fact. I take into account the significant financial burden the practitioner has experienced in defending the proceedings which were ultimately dismissed by the Court of Appeal. 3. However, these were relevant factors which were known to the Court of Appeal. It is noteworthy that although Gleeson JA commented adversely on the Law Society's continuation of the proceedings and failure to bring the Levitt decision to the attention of the Tribunal, that circumstance, of itself, did not in his Honour's consideration overcome the over-riding open justice principle. I agree with and with respect adopt the reasoning of Gleeson JA on the topic. The conduct is a relevant matter to be considered but it is not determinative of the application. 4. I accept that because Mr Levitt brought his appeal to the Court of Appeal prior to the conclusion of the disciplinary proceedings no decision relevant to those proceedings was published. In this matter it appears the practitioner did not agitate the jurisdictional appeal point until after the conclusion of the disciplinary proceedings. I give little weight to this circumstance. 5. I turn then to the issue of whether the fact the Court of Appeal, in determining the application, did not have the benefit of the impact the practitioner asserts the publication has had on his practice, his health and his family, is a relevant circumstance. I find the practitioner's evidence and submissions on this topic do have some relevance and I have given them some weight. But I do not find those matters can be determinative of the matter. However, I note the practitioner did not take up the opportunity when afforded to do so by the Court of Appeal (see [3] of the judgment) to present evidence to that Court. Further, the evidence before me is not corroborated by any medical or accounting evidence. I was not provided with any up-to-date Google searches at the oral hearing or evidence of any steps taken by the practitioner to draw the decision of the Court of Appeal to the attention of editors of "Lawyers Weekly". The latter is a practical step open to the practitioner to address his concerns about his reputation. 6. While I have taken into account and given some weight to the factors relied on by the practitioner in his affidavit, I find any withdrawal of the decisions from NSW Caselaw would have little practical effect in obtaining the result the practitioner seeks. The Court of Appeal decision at [5] to [11] succinctly summarises the claims made against the practitioner, and the outcome of the Tribunal proceedings. I find the reasoning of Gleeson JA is compelling and equally applicable to the application before me. With respect, I repeat his Honour's reasoning: "It would be inconsistent with the principle of open justice, which applies in relation to court proceedings if the legal practitioner is identified by name in this Court, but at the same time this Court, exercising the powers of the Tribunal, made an order retrospectively anonymising the legal practitioner's name in the reported decisions of the Tribunal... The proposed order is not desirable to achieve the due administration of justice in those proceedings." 1. In summary, I am not satisfied that the reasons advanced by the practitioner are sufficiently special or out of the ordinary that it is desirable to make the non-publication orders sought. Orders 1. The application by Simon Konstantinidis for non-publication orders pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) 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: 14 July 2021