Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Forest v Suzanne [2022] NSWCATAP 188 Hearing dates: 25 May 2022 Date of orders: 8 June 2022 Decision date: 06 July 2022 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member Decision: (1) The appellant's interlocutory application is dismissed. (2) The Registrar is directed not to publish these reasons for decision on the Caselaw website before 6 July 2022. Catchwords: APPEAL – Interlocutory application – non-disclosure – abuse of process Legislation Cited: Civil and Administrative Tribunal Act 2013 Court Suppression and Non-Publication Orders Act 2010 Privacy and Personal Information Protection Act 1998 Residential Tenancies Act 2010 Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Hunter and v Chief Constable of the West Midlands Police (1982) AC 529 Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 Misrachi v Public Guardian [2019] NSWCA 67 PR v MDM [2020] NSWCATAP 151 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Walton v Gardiner (1993) 177 CLR 378 Texts Cited: "The Tort of Collateral Abuse of Process" UNSW Law Journal Volume 44(2) p 714 Category: Principal judgment Parties: Wendy Forest (Appellant) Emma-Louise Suzanne (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): 2022/00060313 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 February 2022 Before: S Hanstein, General Member File Number(s): RT 21/41203 reasons for decision Introduction 1. These are reasons for decision in respect of an interlocutory application made by Ms Forest (the appellant) in an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 15 February 2022. The proceedings in the Consumer and Commercial Division concerned an application brought by the appellant against the respondent under the Residential Tenancies Act 2010 (the RT Act). The substantive appeal is listed for hearing on 14 June 2022. 2. An earlier application for orders under s 64 of the NCAT Act was dismissed, with oral reasons given, on 14 April 2022. The appellant was given leave to renew the application. This was done in an application for miscellaneous matters lodged on 21 April 2022. The interlocutory application was listed for hearing on 25 May 2022. 3. In her current interlocutory application, the appellant seeks orders under s 64 and/or s 53 of the NCAT Act. As recorded in directions made at a call over listed on 29 April 2022, the appellant's primary application is that the parties should be de-identified in any publication to non-parties in respect of the appeal. The appellant's alternative position is as set out in the material provided in support of the interlocutory application: that is, that various documents filed by the respondent should be struck out by way of amendment under s 53 of the NCAT Act and should be made subject to non-disclosure orders under s 64. The appellant also asserts that allegations made and documents provided by the respondent amount to contempt or an abuse of process. 4. For the reasons set out below, I have decided to refuse the application. 5. The respondent made an application for summary dismissal of the appeal proceedings, which was also heard on 25 May 2022. That application was dismissed at the hearing, with oral reasons given. Submissions and evidence 1. During the hearing on 25 May 2022, a discussion occurred with a view to seeing whether the issues relevant to the application could be resolved by consent orders. As an agreement was not reached, consent orders could not be made and my decision was reserved. 2. In deciding the application, I have had regard to the following: * The application for miscellaneous matters filed on 21 April 2022; * The various directions made at call over on 16 March, 14 April and 29 April 2022 * The appellant's written submissions in support of the application, received on 6 May 2022; * The respondent's written submissions in response to the application, received on 13 May 2022; and * The oral submissions made by the parties at the hearing on 25 May 2022. . Appellant's submissions 1. In summary, the appellant submits that a number of documents identified in her submissions received on 6 May 2022, which were attached to the respondent's Reply to Appeal or form part of the respondent's submissions, should be "struck out" though an amendment made under s 53 of the NCAT Act. She submits that the Tribunal "can amend submissions under s 53(1) if this is "[i]n the Interests of Justice that would include the guiding principles in s 36 and s 38 …" The appellant also argues that the documents should be subject to a non-publication order under s 64 of the NCAT Act. 2. In essence, the appellant's position is that the documents she refers to: 1. Contain irrelevant and/or vexatious assertions; 2. Contain malicious, confusing false statements and accusations; 3. Are in some cases new documents that were not provided in the proceedings below in relation to which the respondent has not asked for leave to rely on; 4. Demonstrate that the respondent redacted documents provided to her in the Tribunal proceedings; 5. Constitute contempt or an abuse of process. 1. During the hearing on 25 May 2022, it was clarified that the appellant particularly objects to four assertions made by the respondent in the material provided by the respondent. It is unnecessary to give details of those assertions in these reasons for decision. It is sufficient for present purposes to record that one assertion concerns an alleged personal characteristic, one concerns something alleged about the appellant's past and two concern the appellant's alleged conduct during the period of the residential tenancy agreement. According to the appellant, references to these particular assertions are contained not only in the respondent's evidence and submissions, but in recordings of hearings and in other documents. The appellant also objects to documents she claims that the respondent provided on the appeal that were not provided to the Tribunal below and to documents that were provided to her in a redacted form in the Tribunal proceedings. 2. The appellant submits that the existence of the particular assertions she objects to in the Tribunal's record puts her at risk and prevents her from presenting her case. Respondent's submissions 1. The respondent's written submissions in response to the application do not directly address the appellant's written submissions. Rather, they take issue with allegations the respondent claims the appellant has made about her, which she states are untrue. The respondent further states that she redacted documents provided to the appellant in the Tribunal proceedings because she wanted to protect people identified in those documents. 2. In her submissions, the respondent indicates that she also seeks a s 64 order, as she does not want her details made available to the public. In relation to this, the respondent states that she had to change her name and move to get away from an abusive ex-husband. Issues 1. The issues to be determined in the application are: 1. Can an order be made under s 53 of the NCAT Act "striking out" documents the appellant objects to and, if so, should such an order be made? 2. Should an order under s 64 be made in relation to the parties' names and/or the documents identified in the appellant's submissions? 3. Does the respondent's provision of the documents the appellant objects to constitute an abuse of process? 1. As noted above, the appellant also raised the issue of contempt in her written submissions. This issue was not developed in the written submissions or in the oral submissions made at the hearing. In any event, these are not contempt proceedings. I have no power to make any findings or orders concerning contempt. I have therefore not considered this issue further. Consideration Can an order be made under s 53 of the NCAT Act "striking out" documents the appellant objects to and, if so, should such an order be made? 1. Section 53 of the NCAT Act provides: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made— (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 1. Section 53 is directed at two distinct issues: 1. The amendment of documents filed in proceedings; and 2. The treatment of irregularities in the commencement or conduct of proceedings. 1. The issue as raised by the appellant does not concern an irregularity in the commencement or conduct of the proceedings. Sub-sections 53(3) and 53(4) are therefore not relevant to this application. 2. As noted above, the appellant seeks an order "striking out" what she considers to be irrelevant, false, malicious and/or vexatious assertions made in the documents filed by the respondent. 3. In general terms, the power in s 53(1) is directed at allowing amendments of applications, of documents in the nature of pleadings (such as points of claim and points of defence) and of documents such as notices of appeal or replies to appeal. The provision is not directed at ordering the redaction of documents filed by one party which contain material objected to by the other party. 4. Even if the Tribunal had the power to make the order sought by the appellant under s 53(1), I would not do so. The proper time to object to material filed by a party is at the hearing of the proceedings. To the extent that the appellant maintains that all or part of the material filed by the respondent should be excluded from consideration on the appeal, the appropriate time to deal with that issue is at the hearing of the appeal, when she can make submissions to the Appeal Panel in relation to the respondent's documents. 5. I decline to make an order under s 53(1) of the NCAT Act. Should an order under s 64 by made in relation to the parties' names and/or the documents identified in the appellant's submissions? 1. 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. Section 65 concerns proceedings in the Guardianship Division and certain community welfare proceedings, including internal appeals against decisions made in such proceedings. It therefore has no application in the current proceedings. 2. Section 64(1)(a) and (d) relate to "disclosure", s 64(1)(b) relates to "publication or broadcast" and s 64(1)(c) relates to "publication" alone. While these words are not defined in the NCAT Act, their ordinary meanings are not controversial. "Publish" means "to make publicly or generally known" and "disclose' has the broader meaning of "to make known or reveal" and includes publication: Macquarie Dictionary online. See PR v MDM [2020] NSWCATAP 151 at [11]. 3. I understand that the appellant seeks orders under s 64(1)(a) and s 64(1)(c), namely: 1. An order prohibiting the disclosure of her name under s 64(1)(a); 2. An order prohibiting the publication of matters contained in documents lodged by respondent under s 64(1)(c). 1. As noted above, the respondent also seeks an order under s 64 of the NCAT Act, in particular that her name not be disclosed. This was repeated in oral submissions. In my view, the fact that both parties want a non-disclosure order is not a sufficient reason to make the order. I have therefore considered whether such orders should be made in this case. 2. In cases such as Misrachi v Public Guardian [2019] NSWCA 67 at [13] and DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [23], the Court of Appeal has noted the 'sharp contrast' between s 64, which permits an order preserving confidentiality of documents to be made where the Tribunal considers it to be "desirable", and the "relatively onerous" regime for suppression orders established by the Court Suppression and Non-Publication Orders Act 2010. 3. Proceedings in the Consumer and Commercial Division (and internal appeals from decisions made in such proceedings) are civil proceedings between parties to a dispute, rather than applications for merits review of administrative decisions or other proceedings involving public law. The appellant's proceedings in the Tribunal constituted a claim for compensation for breach of a residential tenancy agreement. This is in effect a claim for damages for breach of contract, albeit in respect of a contract the terms of which are regulated by the RT Act. The appellant's proceedings were not administrative review proceedings or proceedings alleging a breach of Information Protection Principles under the Privacy and Personal Information Protection Act 1998, in which different considerations concerning confidentiality and the principle of open justice may apply. 4. In civil proceedings such as those brought by the appellant, the principle of open justice is a centrally important factor. This long standing principle of the common law applies in the Tribunal as it does in courts. In general terms, the principle requires hearings to be conducted in public and information and evidence to be communicated publicly to those present at the hearing. It also requires that nothing be done to discourage fair and accurate reports of proceedings conducted in open hearing, which includes reporting the names of the parties and the evidence given during the proceedings. The open justice principle is reflected in s 49 of the NCAT Act, which, with limited exceptions requires Tribunal hearings to be conducted in public. 5. As stated by the Appeal Panel in Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 (Kostov No 3) at [10]: In New South Wales there is a system of open justice. From time to time reports of decisions of courts and tribunals reveal circumstances pertaining to parties in proceedings of a personal nature, and some of which deal with a whole range of difficult circumstances. Whilst it is unfortunate that details of this kind are revealed in this way, this is a necessary concomitant of open justice. 1. The Appeal Panel in Kostov No 3 went on to state at [11]: There are many cases in this Tribunal where non-publication orders have been made under section 64 of the Act, but they are principally directed to ensuring confidentiality with respect to disciplinary proceedings taken against health practitioners or legal practitioners and concern the names and details of persons who are their patients or clients as well as the families of those patients and clients. It is rare indeed that the name of a practitioner against whom disciplinary proceedings are taken will be suppressed. See for example, Health Care Complaint Commission v Vo [2014] NSWCATOD 127. Of course, the circumstances of such proceedings are significantly different from those which apply to these proceedings. 1. I note that as the case in the appellant's proceedings, Kostov (No 3) concerned a dispute between a landlord and a tenant. 2. While generally speaking the prospect of damage to reputation or embarrassment affecting a participant in proceedings does not provide sufficient grounds for an order under s 64, as stated by the Appeal Panel of the Administrative Decisions Tribunal in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [81] "there may be unusual circumstances where this is the principal consideration underlying an order." 3. In this case, the fact that the appellant does not wish to have disclosed the respondent's allegations about her alleged personal characteristic or her alleged history and conduct does not of itself constitute unusual circumstances sufficient to displace the principle of open justice. In proceedings such as brought by the appellant, parties routinely make allegations about each other which are irrelevant, personally offensive and/or unsubstantiated. This is particularly the case when the parties are self-represented. Part of the Tribunal's (and the Appeal Panel's) task in such circumstances is to decide what material is relevant to the issues it must decide and to place no weight on (or in some circumstances exclude) material that has no bearing on those issues. 4. The appellant submitted that she would be at risk of harm if information about her alleged personal characteristic or alleged conduct were disclosed. However, no persuasive evidence has been provided to support that proposition. There is nothing in the material before me to support a conclusion that either the dispute between the parties or the ensuing litigation has attracted any public interest, that the parties have a public profile that would put the appellant at risk of attracting such attention, or that, if the dispute and/or the litigation did come to public knowledge, it would put the appellant at risk of harm. 5. The appellant also submitted that she would not be able to properly present her appeal if the allegations were disclosed and that she would be denied procedural fairness if the orders she seeks are not made. I am not satisfied that the appellant has established that this is the case. The appellant has had an opportunity to prepare materials in support of her appeal in accordance with orders made at call over and has done so. There is nothing in the material provided in support of the appellant's interlocutory application – including the appellant's oral submissions - which leads me to conclude that the appellant would be unable to argue the grounds of appeal if a suppression or non-disclosure order were not made. To the extent that it is relevant to the grounds of appeal, the appellant has an opportunity to raise issues with the Appeal Panel such as the respondent allegedly having provided irrelevant documents, or having provided documents in response to the appeal that were not before the Tribunal, or the respondent having given her redacted documents. 6. Further, even if the respondent has raised irrelevant issues or has made accusations that have no basis and that could be embarrassing to the appellant, in the context of these parties and this particular dispute, this is an insufficient basis for orders to be made under s 64. 7. As noted above, in response to the appellant's application for an order under s 64, the respondent also sought an order suppressing her name and details. By the same reasoning, I am not satisfied that there is any basis for such an order to be made in favour of the respondent. Even accepting that the respondent has changed her name and moved to escape from an abusive former husband, the respondent has not asserted that there is anything in the material before the Tribunal which includes her former name. In such circumstances, I am not satisfied that the disclosure of the respondent's name or details about the proceedings would put the respondent at risk. 8. I accept that in the unlikely event that details of the allegations made by the parties against each other in these proceedings comes to public notice, both parties could suffer a degree of embarrassment and distress. However, I am not satisfied that the parties have established that they would be put at risk of harm if this occurred. Overall, a basis for an order under s 64 has not been established. The personal circumstances of the parties do not, in my view, outweigh the principle of open justice. Abuse of process 1. The appellant argued that the allegations made by the respondent amount to an abuse of process. In this context, the appellant argued that the respondent made the allegations and provided the material she objects to for a "collateral" purpose. 2. In Walton v Gardiner (1993) 177 CLR 378, Mason CJ and Deane and Dawson JJ relying on Lord Diplock in Hunter and v Chief Constable of the West Midlands Police (1982) AC 529, referred to the Court having: the inherent power…to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to a litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. 1. While the Tribunal does not have inherent powers, its obligations under s 36 and its powers under s 38 of the NCAT ACT allow the Tribunal to deal with allegations of abuse of process. 2. The High Court noted in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 262 (Gleeson CJ, Gummow, Hayne and Crennan JJ) that the term "abuse of process" is used in a number of contexts, one of which is to denote the tort of collateral abuse of process. The tort of collateral abuse of process "imposes liability on a litigant who intentionally misuses a legal process to obtain a collateral object outside the process' lawful scope, and which subsequently causes damage to an opposing litigant": "The Tort of Collateral Abuse of Process" UNSW Law Journal Volume 44(2) page 714 3. The appellant's linking of an allegation of abuse of process with her assertion that the respondent has a collateral purpose in making the allegations and providing the documents the appellant objects to indicates that the appellant is asserting that the respondent has engaged in a collateral abuse of process. 4. I am not satisfied that the appellant has established that the allegations made by the respondent about her or the material the respondent has provided amounts to an abuse of process, in the sense described above as the tort of collateral abuse of process or otherwise. Even if the respondent's allegations are not in fact correct, this does not establish that they have been made vexatiously or maliciously or for any purpose other than to defend the application brought against her by the appellant. As noted above, there is nothing particularly unusual about parties in contested Tribunal proceedings making allegations which may be irrelevant to the issues to be decided, unsubstantiated, hurtful or embarrassing to the other party. 5. The onus is on the appellant to establish an abuse of process. She has failed to do so. Conclusion 1. In conclusion, I am not satisfied that the appellant has established on an interlocutory basis grounds for orders under s 53 or s 64 of the NCAT Act or that allegations made or material provided by the respondent amounts to an abuse of process. 2. The appellant's interlocutory application is accordingly dismissed. 3. I have decided to direct the Registrar not to publish these reasons for decision for a period of 28 days. This will allow the appellant time to appeal the decision if she so chooses. Order 1. The appellant's interlocutory application is dismissed. 2. The Registrar is directed not to publish these reasons for decision on the Caselaw website before 6 July 2022. ********** 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: 17 November 2022