Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Australian Press Council Inc v Southey [2022] NSWCATAP 127 Hearing dates: 8 April 2022 Date of orders: 8 April 2022 Decision date: 29 April 2022 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member Dr J Lucy, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL – where appellant appealed from decision in its favour – whether appellant entitled to appeal from an adverse finding in the Tribunal's reasons for decision – whether adverse finding was an internally appealable decision – meaning of "decision" in Civil and Administrative Tribunal Act 2013 (NSW) – whether Appeal Panel has power to make an order in the nature of a declaration - Whether appeal was moot Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Commercial Tribunal Act 1984 (NSW) (repealed) Legal Profession Act 1987 (NSW) (repealed) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Securities & Investments Commission v P Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489 Dawson Nominees Pty Ltd [2009] FCAFC 183 Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268 Dibb v Transport for NSW (No 2) [2022] NSWCATAP 89 Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 R v Ireland (1970) 126 CLR 321 Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: Australian Press Council Inc (Appellant) Claire Southey (Respondent) Representation: Counsel: C Ronalds AO SC (Appellant) Solicitors: Sparke Helmore Lawyers (Appellant) Respondent (self-represented) File Number(s): 2021/00347447 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 329 Date of Decision: 10 November 2021 Before: M Tibbey, Senior Member Dr M Murray, General Member File Number(s): 2018/00381334 reasons for decision 1. Ms Southey brought discrimination proceedings against the Australian Press Council, which the Tribunal dismissed. Although successful in the proceedings, the Australian Press Council lodged an appeal against a finding in the Tribunal's reasons that it was not a voluntary association. 2. We have found that the finding was not an internally appealable decision, such that the appeal is incompetent. If we are wrong about this, then we consider that the Appeal Panel does not have power to make the order sought by the Australian Press Council, which is in the nature of a declaration. The appeal is also moot. 3. For these reasons, we dismissed the appeal. Background 1. Ms Southey, the respondent, is a transgender woman. She made a complaint to the appellant, the Australian Press Council, about an article that appeared in news.com.au, a member organisation of the Australian Press Council. She complained that the article sensationalized and placed gratuitous emphasis on the fact that an alleged assailant was a transgender person. 2. The Australian Press Council considered Ms Southey's complaint and dismissed it. 3. Ms Southey made a complaint to the President of the Anti-Discrimination Board, claiming that the Australian Press Council had discriminated against her on transgender grounds in the terms on which it provided its services of dealing with complaints, contrary to the Anti-Discrimination Act 1977 (NSW) (the AD Act). 4. The President referred Ms Southey's complaint to the Tribunal. 5. One of the issues in the proceeding was whether s 57(2)(b) of the AD Act applied to the consideration of complaints by the Australian Press Council. Section 57(2)(b) provides that nothing in the AD Act affects the provision of benefits, facilities or services to members of a body, the activities of which are carried on otherwise than for profit and which is not established by an Act (with certain exceptions). 6. The Tribunal found that s 57(2)(b) of the Act did not operate to disapply the discrimination provisions of the AD Act to the Australian Press Council in respect of Ms Southey's discrimination complaint. However, the Tribunal was not satisfied that Ms Southey had proven, on the balance of probabilities, that the adjudication of her complaint was conducted or decided in a discriminatory manner due to the subject matter of the article, concerning a transgender person. Nor was the Tribunal satisfied that the Australian Press Council adjudicated Ms Southey's complaint in a discriminatory manner due to her transgender status. Accordingly, it dismissed Ms Southey's application. 7. Ms Southey appealed from that decision. 8. The Australian Press Council also lodged a Notice of Appeal, appealing in relation to the Tribunal's findings as to the application of s 57 of the Act. 9. The Australian Press Council's appeal was listed for hearing before Ms Southey's appeal. Ms Southey's appeal was listed for directions after the hearing of the Australian Press Council's appeal on the basis that the Australian Press Council's appeal might be determinative of Ms Southey's appeal. The reasoning was apparently that, if the Appeal Panel found that s 57 applied in the circumstances of the case, the AD Act would have no application to the Australian Press Council. Appeal grounds 1. The only ground of the Australian Press Council's appeal identified in the Notice of Appeal was that the Tribunal erred in finding that the Australian Press Council is not a "voluntary association" for the purposes of the Anti-Discrimination Act 1977 (NSW). 2. The term "voluntary association" is not used in the AD Act but was used by the Tribunal in its reasons as a shorthand term to describe the voluntary bodies to which s 57 of the AD Act applies. 3. In its submissions, the Australian Press Council identified two grounds of appeal. The first was, broadly, that the Tribunal erred in construing s 57(2)(b) of the AD Act and the second was that the Tribunal erred in concluding that the Australian Press Council is not a voluntary body because it does not satisfy the requirement in s 57(1) that its activities must be carried on otherwise than for profit. The second ground also depended upon an alleged misconstruction of s 57(1) of the AD Act. 4. The Australian Press Council sought in its Notice of Appeal the following order if successful on appeal: "The Respondent is a 'voluntary body' within the meaning of that term in section 57 of the Anti-Discrimination Act 1977 (NSW)." Presumably, by the term "Respondent," it was referring to its status in the proceedings before the Tribunal at first instance and meant to refer to itself. 5. We note, for completeness, that the Tribunal's reasoning about the non-application of s 57 of the AD Act did not depend upon whether the Australian Press Council was a body identified in s 57(1) (for convenience, we refer to such a body as a voluntary body). It found, rather, at [48]-[49] that the services provided by the Australian Press Council to members were unaffected by the provision of services of adjudication to a non-member who made a complaint such that s 57(2) was not engaged. However, it went on to indicate that, if it had been necessary, it would have found that the Australian Press Council was not a voluntary body. 6. As the Tribunal made an alternative finding that the Australian Press Council was not a "voluntary association" (to use the Tribunal's language), and as that finding is the subject of the appeal, we have considered whether that decision is an internally appealable decision. Hearing of the appeal 1. At the hearing of the appeal, we raised with the parties whether the appeal was maintainable in circumstances where the Australian Press Council had been wholly successful in the proceedings before the Tribunal. That is, the only order made by the Tribunal was that the application be dismissed, being an order in the Australian Press Council's favour. 2. We also raised with the parties the question of whether the appeal had any utility, given that there appeared to be no relief that the Appeal Panel could give to the Australian Press Council if successful. The order sought by the Australian Press Council is in the nature of a declaration. We expressed a preliminary view, at the hearing, that we did not have power to make a declaration. 3. Having been alerted to our concerns, Ms Ronalds SC, for the Australian Press Council, proposed that we should adjourn and make directions for the Australian Press Council's appeal to be determined at the same time as Ms Southey's appeal. We offered the Australian Press Council an opportunity to provide written submissions about the proposed dismissal of the appeal but Ms Ronalds declined that opportunity. 4. We made orders dismissing the appeal at the hearing. These are our reasons for that decision. Was the finding that the appellant is not a voluntary association an internally appealable decision? 1. The general principle at common law is that a party may appeal from the judgment of a court but there is no appeal from the court's reasons (R v Ireland (1970) 126 CLR 321 at 330; Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 at 64; Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 at [35]). As the Tribunal and its Appeal Panel are creatures of statute, regard must be had to the governing statute to determine whether the same principle applies to appeals to the Appeal Panel, or whether the decisions from which appeals may be brought may include findings which are made in the reasons for decision. 2. A party to proceedings may generally make an appeal to the Appeal Panel against an internally appealable decision (subject to some exceptions which are not presently relevant). Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. 1. An "internally appealable decision" is defined to mean "a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction" (NCAT Act, ss 4(1), 32(4)). 2. Provision is made for the internal appeal jurisdiction of the Tribunal in s 32(1) of the NCAT Act as follows: 32 Internal appeal jurisdiction of Tribunal (1) The Tribunal has internal appeal jurisdiction over— (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. 1. The finding that the Australian Press Council is not a "voluntary association" for the purposes of the AD Act was "made by the Tribunal in proceedings for a general decision" within s 32(1)(a) of the NCAT Act. A "general decision" is a decision of the Tribunal determining a matter over which it has general jurisdiction (NCAT Act, ss 4(1), 29(3)). Subsection 29(1) provides for the Tribunal's general jurisdiction as follows: (1) The Tribunal has general jurisdiction over a matter if— (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. 1. The AD Act enables the Tribunal "to make decisions or exercise other functions" of a kind specified by it. In particular, s 108(1) of that Act provides that, in proceedings relating to a complaint, the Tribunal may dismiss the complaint in whole or in part, or find the complaint substantiated in whole or in part. A complaint may include a complaint of transgender discrimination (AD Act, s 87). Accordingly, the Tribunal had general jurisdiction over the "matter" of Ms Southey's complaint. Its decision dismissing her complaint was a "general decision" as defined. 2. That does not answer, however, the question of whether the Tribunal's finding that the Australian Press Council was not a "voluntary association" was a "decision" made by the Tribunal in proceedings for a general decision and was therefore an "internally appealable decision" within s 32 of the NCAT Act. 3. The term "decision" is broadly defined in s 5(1) of the NCAT Act as follows: (1) In this Act, decision includes any of the following— (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. 1. The term "decision" is used to refer both to administrative decisions reviewable by the Tribunal (see, for example, NCAT Act, s 30(1)) and to the Tribunal's own decisions (see, for example, NCAT Act, s 29(1)). Notwithstanding the breadth of the term "decision," as defined, it seems to us unlikely that the legislature intended that every finding of law made in the course of the Tribunal's written reasons (whether in relation to the construction of a provision, or any other legal matter) would be a "decision" which may be the subject of an appeal to the Appeal Panel. It may be that the term "decision" has a more confined meaning when used in relation to decisions of the Tribunal than it does when used in relation to decisions of administrators. It is not necessary, however, to determine that question in order to resolve this appeal. 2. The High Court considered the meaning of the term "decision" in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The ADJR Act defined "the making of a decision" in terms almost identical to those in which the term "decision" is defined in the NCAT Act. The ADJR Act conferred a right to apply for judicial review of a decision of an administrative character made under an enactment. 3. Mason CJ considered that the definition of "the making of a decision" did "not elucidate significantly" the meaning of "decision" in the ADJR Act (at 335). His Honour observed (at 337) that a "conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment." His Honour concluded (at 338) that the term "decision" in the ADJR Act referred to an ultimate or operative determination. 4. In Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489, the New South Wales Court of Appeal considered a provision of the Commercial Tribunal Act 1984 (NSW). Subsection 20(3) gave the presiding Chairman or Deputy Chairman of the Tribunal power to determine a question arising in proceedings with respect to a matter of law, or to refer the question to the Supreme Court for decision. Subsection 20(5) provided: "Where, in proceedings before the Tribunal, the Chairman or a Deputy Chairman decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may appeal to the Supreme Court against the decision of the Chairman or Deputy Chairman." 5. The New South Wales Court of Appeal held that s 20(5) permitted interlocutory appeals. The three members of the Court gave separate judgments, each analysing the terms of the statute. Each found that the legislation authorised the making of appeals from interlocutory decisions. 6. The Court of Appeal considered in Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268 what was meant by the conferral of a right of appeal from a "decision" of a costs assessor to the Supreme Court under s 208L of the Legal Profession Act 1987 (NSW). The purported decision in question did not have any immediate operative effect as between the parties. Tobias AJA (with whom Meagher and Emmett JJA agreed) referred to Mason CJ's judgment in Bond, the decision in Custom Credit, and other relevant authorities. His Honour held at [81] that s 208L(1) was not intended to create an appeal right where there was a ruling on a question of law of a preliminary or interlocutory nature. That provision created an appeal right "at the end of the assessment process or at least only upon a formal determination by the costs assessor" (at [82]). 7. The NCAT Act contemplates that a party may appeal to the Appeal Panel, with leave, from an interlocutory decision of the Tribunal (s 80(2)(a)). To this extent, the NCAT Act is different from the legislation considered in Bond's case and in Daley v Hughes. "Interlocutory decision" is defined as follows in s 4(1) of the NCAT Act: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following— (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. 1. Each of these decisions, with the possible exception of the last category, involves the Tribunal making an order or direction under a statutory power. For example, the power to direct that a summons be issued is conferred on the Tribunal by s 48(1) of the NCAT Act. The power to make rulings on the admission of evidence is part of the Tribunal's power to determine its own procedure (NCAT Act, s 38(1)). None of these decisions are properly described as steps in the reasoning of the Tribunal. 2. The only paragraph in the definition of "interlocutory decision" which could possibly apply to the finding that the Australian Press Council is not a "voluntary association" is the last one: "a decision made by the Tribunal under legislation concerning… any other interlocutory issue before the Tribunal". The term "interlocutory" is not defined. It is relevantly defined in the Macquarie Dictionary as follows: "Law temporary or provisional, pending final judgement or determination; interim: interlocutory injunction." The question of whether the Australian Press Council is a "voluntary association" was determined at the end of the proceedings as part of the final determination of the proceedings. It was not an issue determined pending the final determination; it was an issue which was determined as part of that determination. In our view, it is not properly described as an "interlocutory issue." 3. Paragraph (i) of the definition of "interlocutory decision" refers to "any other interlocutory issue before the Tribunal," thus implicitly indicating that paragraphs (a) to (h) of the definition all identify interlocutory issues. Having regard to the types of decision identified in those paragraphs, we do not consider that the legislature intended that a finding as to a question of law made in the reasons for decision given in a final determination is an "interlocutory decision." 4. If requested to provide reasons for a "decision," the Tribunal is required to provide a written statement of reasons setting out findings on material questions of fact, the Tribunal's understanding of the applicable law and its reasoning processes (NCAT Act, s 62(3)). There is nothing in the language of s 62 to suggest that setting out the applicable law or reasoning processes in the Tribunal's written reasons is itself the making of a "decision." 5. The NCAT Act also permits appeals from ancillary decisions "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds" (s 80(2)(b)). An "ancillary decision" is: 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. The finding that the Australian Press Council is not a voluntary association was not an ancillary decision, because it was not preliminary to or consequential on the decision determining proceedings. It was, at most, part of the reasoning in respect of the final decision. As it was a finding made in the alternative, it may not even be properly characterised as part of the reasoning in support of the final decision. 2. On balance, we consider that the Tribunal's conclusion that the Australian Press Council is not a voluntary association is a legal finding on the way to the making of a decision, or a step in the Tribunal's reasoning, which is not a "decision" within the NCAT Act (applying the reasoning in Bond). Accordingly, it is not an "internally appealable decision" and the appeal is incompetent. Appeal has no utility 1. If we are wrong and the Tribunal's finding that the Australian Press Council is not a voluntary association is an internally appealable decision, then we would not grant leave to appeal (if it is an interlocutory decision) or we would dismiss the appeal (if it is an ancillary or final decision), because the appeal is futile or moot. 2. We do not consider that we have power to make the order sought by the Australian Press Council, which is effectively a declaration that the Australian Press Council is a voluntary body. The orders an Appeal Panel may make are set out in s 81 of the NCAT Act as follows; 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. The orders which are specified in s 81(1)(a) to (e) do not extend to making a declaration. The Australian Press Council does not seek any change to the decision under appeal (being the decision to dismiss Ms Southey's complaint). If the Appeal Panel were to "affirm" the decision under appeal (to use the language of s 81(2)), it could exercise all the functions conferred on the Tribunal at first instance. However, the Tribunal's functions at first instance do not include making declarations. The Tribunal's powers are set out in Division 3 of Part 9 of the AD Act and are supplemented by the powers conferred on the Tribunal by the NCAT Act. If the power of the Appeal Panel in s 81(1) to "make such orders as it considers appropriate in light of its decision on the appeal" includes making a declaration (which may be doubted), then we do not consider it appropriate to make the order sought, in circumstances where that would have no practical utility. 2. In circumstances where an order has been made in favour of the Australian Press Council, any decision the Appeal Panel could make in respect of the issue would be in the nature of an advisory opinion. There is no live controversy between the parties. The general rule for moot appeals is that they should not be entertained (Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 at [1]; Dibb v Transport for NSW (No 2) [2022] NSWCATAP 89 at [58]). In our view, there is no issue of general principle of general importance raised in this appeal which would warrant departure from that general rule (see Feeney at [32] and Dibb at [59]). 3. Ms Ronalds SC, for the Australian Press Council, submitted that a decision in this appeal would have a practical effect in that, if the appeal were determined in the Australian Press Council's favour, it would effectively determine Ms Southey's appeal (the consequence being, in her submission, that the AD Act would not apply to the Australian Press Council). We are not persuaded that that is so. The appeal ground challenges an alternative finding of the Tribunal. It does not, in terms, challenge the Tribunal's finding that s 57 of the AD Act has no application because the provision of services to members is unaffected by the provision of services of adjudication to a complainant such as Ms Southey (reasons at [48]). It would be necessary to grant the Australian Press Council leave to amend its appeal ground (which leave has not been sought). 4. Even if the Australian Press Council's appeal ground were to be understood as challenging the whole of the Tribunal's reasoning as to the application of s 57 of the AD Act, we are of the view that the determination of the question of whether the Tribunal erred in its construction or application of that provision is, at present, theoretical. It would only be if the Appeal Panel determining Ms Southey's appeal found that she had established that the Tribunal had made an error that it may become necessary to resolve the question of whether the Tribunal erred in its construction or application of s 57 of the AD Act. 5. As we pointed out at the hearing, there is a box in the "Reply to Appeal" form to respond to the question: "Do you support the original orders made by the Tribunal which the Appellant for reasons other than those given by the Tribunal?" A space is provided for the respondent to an appeal to identify reasons for decision which the Tribunal did not give, but which support the original orders. The Australian Press Council has therefore had an opportunity to raise the matters the subject of this appeal in its reply to Ms Southey's appeal. Dismissal of appeal 1. The Tribunal may dismiss proceedings before it if it considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance (NCAT Act, s 55(1)(b)). In our view, the appeal is misconceived because it does not challenge a "decision" as that term is used in the NCAT Act and because it seeks an order the Appeal Panel does not have power to make. It is also a moot appeal which is another basis on which an appeal may be dismissed under s 55(1)(b) (as occurred in Feeney). 2. For these reasons, we have dismissed the appeal under s 55(1)(b) of the NCAT Act. Orders 1. The following order was made at the hearing: 1. The appeal 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: 29 April 2022