Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ritson v Commissioner of Police [2022] NSWCATAP 223 Hearing dates: 10 June 2022 Date of orders: 06 July 2022 Decision date: 06 July 2022 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member Dr J Lucy, Senior Member Decision: (1) Leave to appeal is refused. (2) The Appeal is dismissed. (3) The reasons for decision of the Tribunal dated 14 March 2022 in proceedings 2020/141477 and 2020/178009 are not to be published, other than to the parties and the Privacy Commissioner, for a period of 14 days following publication of the Appeal Panel's reasons for decision but publication in such decisions of the citations to the other proceedings where the Appellant/Applicant was assigned a pseudonym is prohibited. (4) Pursuant to section 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 the disclosure of the name of the Appellant/ Applicant and publication of evidence given in the proceedings and of matters containing documents lodged with the Tribunal which identify the Applicant is prohibited except insofar as required for the Respondent to enforce any costs orders made in proceedings 2022/89773, for a period of 14 days following publication of the Appeal Panel's reasons for decision. (5) The operation of order 1 made on 14 March 2022 in proceedings 2020/141477 and 2020/178009 is stayed for a period of 14 days following publication of the Appeal Panel's reasons for decision, except in so far as required for the Respondent to enforce any costs orders made in proceedings 2022/89773. Catchwords: APPEAL – whether self-represented litigant was denied procedural fairness in not being advised that he bore an evidentiary onus of proof. PRACTICE AND PROCEDURE – application to revoke non-publication order – whether a non-publication order made in proceedings under the Privacy and Personal Information Protection Act 1998 should be revoked Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: 2ND v 2ND [2020] NSWCATAP 34 AHB v HSW Trustee and Guardian [2017] NSWCATAP 79; House v R (1936) 55 CLR 499 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Chen v NSW Land & Housing Corporation [2020] NSWCATAP 238 Collins v Urban [2014] NSWCATAP 17 Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 DLH v Nationwide News Ltd [2018] NSWCATAD 92 Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 House v The King (1936) 55 CLR 499 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Pollock v Hicks [2015] NSWCA 122 Rassis v Anaz [2019] NSWCATAP 25 Re Association of Architects; ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Rassis v Anaz [2019] NSWCATAP 25 Re Association of Architects; ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Van Zyl & Anor v Rentstar [2021] QCATA 120 Waters v Waghorn [2016] NSWCATAP 247 Texts Cited: None Category: Procedural rulings Parties: Brendan Ritson (Appellant) Commissioner of Police (Respondent) Representation: Brendan Ritson (Self-represented) Crown Solicitor (Respondent) File Number(s): 2022/00086226, 2022/00089773 Publication restriction: These reasons for decision are not to be published, other than to the parties and the Privacy Commissioner, for a period of 14 days following publication to the parties. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2022] NSWCATAD 88, [2022] NSWCATAD 89 Date of Decision: 14 March 2022 Before: P French, Senior Member File Number(s): 2020/00141477, 2020/00178009 reasons for decision Introduction 1. Before the Appeal Panel are two notices of appeal. First, there is the notice of appeal in 2022/00086226 in respect of proceedings below 2020/00141477, which we will refer to collectively as the first proceedings. The second notice of appeal is in 2022/00089773 in respect of proceedings 2020/00178009 below, which we collectively refer to as the second proceedings. 2. The Tribunal below, constituted by Senior Member French, delivered separate reasons for decision on 14 March 2022 in the first proceedings, which we will refer to as the First Decision and in the second proceedings, which we will refer to as the Second Decision. Both decisions will collectively be referred to as the Decisions. 3. In the Decisions the Tribunal decided to revoke a non-publication order in respect of the Appellant's name or material which identified the Appellant, which had been made on 30 June 2020 in both proceedings. 4. The Appellant seeks to overturn this order and have the non-publication order reinstated. 5. The Appellant raises three grounds of appeal in identical terms in both sets of proceedings: 1. first, the Tribunal denied the Appellant natural justice by failing to inform him that he bears a practical onus of proof thereby depriving the Appellant of an opportunity to produce evidence; 2. secondly, that the Tribunal failed to take into account six specified considerations; and 3. thirdly, the Appellant contended that the Tribunal erred because making the revocation orders will frustrate other non-publication orders that have been made in other proceedings between the parties. 1. For the reasons which follow, we have decided to dismiss the appeal. Procedural Background 1. The substantive applications before the Tribunal in each set of proceedings are applications by the Appellant under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for administrative review under s 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). 2. The administrative reviews were sought following an internal review conducted by the Commissioner of Police (Commissioner) pursuant to s 53 of the PIPP Act. The Appellant alleged in each set of proceedings that there had been a contravention of an information protection principle contained in Part 2 of the Division 1 of the PIPP Act. 3. Specifically, the Appellant complains that the Commissioner or her agents made use of the Appellant's personal address information (address information) which had been collected by the agency by unlawful means contrary to s 8(2) of the PPIP Act. 4. Both sets of proceedings came on for a Case Conference on 30 June 2020. Among other orders made at the conclusion of that Case Conference was Order 1, made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) (the non-publication order) which directs: 1. The publication or broadcast of the name of Brendan Ritson . . . is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: A reference to the name of a person includes a reference to any information, picture, or other material that identifies the person or is likely to lead to the identification of the person. 1. The Senior Member who made the non-publication order in each proceeding did not record any written reasons for making the order. 2. The Tribunal below noted that neither party had filed a transcript of the proceedings on the date the non-publication orders were made and that there was nothing before the Tribunal other than the contention of the parties, to indicate why that order was made: at [7] of the Decisions. 3. The Commissioner in both proceedings applied for orders pursuant to s 64(3) of the NCAT Act to revoke the non-publication order made on 30 June 2020. The Tribunal considered both applications for revocation orders in the first and second set of proceedings together but issued separate determinations and Decisions. 4. The Commissioner filed in support of her applications an affidavit of Tom Alexander Allchurch, dated 24 September 2020 and an affidavit of Tram Nguyen, dated 8 December 2021. 5. The Appellant filed submissions and in the second set of proceedings supplementary submissions with two annexures. The Tribunal determined in the Second Decision to accept the Appellant's supplementary submissions into evidence despite them being filed without leave. 6. The Tribunal noted whilst there were important differences in the issues to be determined in the two sets of proceedings, the reasons in relation to the ultimate issues would otherwise practically be identical. The reasoning of the Tribunal 1. In both sets of proceedings the Tribunal outlined the material facts which formed the basis for the Tribunal's determination of the revocation applications. 2. These were summarised by the Tribunal in essentially identical terms as follows (see [19]-[26] of the First Decision): 19 The substantive application concerns conduct of the agency in relation to an address for the applicant (the address information). The applicant contends that this address information was obtained by the agency by unlawful means contrary to section 8(2) of the PIPA Act. 20 The applicant's complaint about the agency's conduct arises from an affidavit dated 26 November 2019 filed by a solicitor acting for the agency on a Creditor's Petition brought against the applicant under the Bankruptcy Act 1966 (Cth) which was then before the Federal Circuit Court of Australia: Commissioner for Police New South Wales Police Force v Brendan Ritson SYG2114/2019 (the Federal Circuit Court proceedings). That affidavit was given in support of an application for substituted service of the Creditor's Petition on the applicant at the address in issue. The affidavit sets out the address information. 21 On 4 December 2019 Registrar Morgan made orders in those proceedings for substituted service of the Creditor's Petition on the applicant at two addresses, including the address in issue in the proceedings before the Tribunal. The address is set out in full at Order 5(b) of the Court's orders. The Orders of the Court are accessible to the public through the Commonwealth Law Portal. 22 Final judgement in the Federal Circuit Court proceedings was given in a decision published on 12 August 2021: Commissioner of Police (NSW) v Ritson (No.5) [2021] FCCA 1835. There are also four earlier published judgements on interlocutory issues in those proceedings: Commissioner of Police (NSW) v Ritson [2020] FCCA 1803; Commissioner of Police (NSW) v Ritson (No. 2) [2020] FCCA 3035; Commissioner of Police (NSW) v Ritson (No.3) [2020] FCCA 3512; and, Commissioner of Police (NSW) v Ritson (No.4) [2021] FCCA 333. 23 Additionally, there are three published decisions from appeal proceedings brought by the applicant in the Federal Court against decisions made in the Federal Circuit Court proceedings: Ritson v Commissioner of Police, New South Wales Police Force (No.2) [2021] FCA 93; Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 5; Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 1315. 24 The Federal Circuit Court Proceedings are not subject to any suppression or non-publication order made under the former Part 6A of the Federal Circuit Court of Australia Act 1999, or the current Part 7 of the Federal Circuit and Family Court of Australia Act 2021. Nor are any of the proceedings in the Federal Court subject to suppression or non-publication orders made under Part VAA of the Federal Court Act 1976. 25 Information concerning all of the proceedings involving the parties in the Federal Courts is publicly available on the Commonwealth Law Portal. All judgments entered in those proceedings are publicly available on Austlii. Each of the judgements referred to above sets out in detail the background and subject matter of the proceedings, being the circumstances that give rise to the Creditor's Petition. 26 On 22 September 2020 an article appeared in the Daily Telegraph at page 11 of that day's edition under the heading "Long arm of the lawsuit – Former cop & NSW Police at loggerheads in court". This article reports in some detail the substance of the proceedings between the parties before the Federal Circuit Court, being the agency's Creditor's Petition, earlier proceedings between the parties that gave rise to the debt, the applicant's history of litigation in several jurisdictions, and background work place incidents that occurred before the applicant ceased employment as a Police Officer with the agency in 2011. 1. The Tribunal considered the question of which party bore the onus of proof, noting that each of the parties submitted that the other bore an onus of proof. 2. The Tribunal concluded that the better view was, as the proceedings were administrative review proceedings, neither party bears a strict onus of proof. There must be a sufficient basis to be found in the evidence, submissions, or course of proceedings for the Tribunal to be satisfied that a non-publication order continues or does not continue to be desirable. 3. Nevertheless, the Tribunal was of the view that the Appellant, as the beneficiary of the non-publication order, bears a practical onus which he must discharge demonstrating good grounds for the continuation of the non-publication order over the objection of the Commissioner. 4. The Tribunal then dealt with the primary contention of the Appellant that disclosure of his name in connection with the subject matter of the two sets of proceedings would compromise his privacy. The subject matter of the proceedings was noted as being the Commissioner's conduct in relation to how she obtained the Appellant's address information and whether this was in contravention of s.8(2) of the PPIP Act. The Tribunal concluded that the address information on which the two sets of proceedings turn has already been disclosed in connection with the Appellant's name in the orders made by the Federal Circuit Court on 4 December 2019. Those orders, the Tribunal found, remain publicly available on the Commonwealth Law portal. The Appellant's name in connection with the address information therefore cannot be considered personal information, the Tribunal found, as it is already available in the published order of the Federal Circuit Court. 5. The Tribunal went on to explain its reasons as follows (at [54]-[64] of the First Decision, which is in identical terms to [68]-[78] of the Second Decision): 54 The address information is connected to the agency's service of the Creditor's Petition on the applicant. All of those surrounding circumstances are reported in the various published decisions of the Federal Courts in relation to the Creditors Petition, and they have also been reported in considerable detail in the Daily Telegraph on 22 September 2020. The applicant's name in connection with these surrounding circumstances therefore cannot be considered personal information or confidential information in relation to the Creditor's Petition and its surrounding circumstances. It has been subject to extensive publication in relation to those circumstances. 55 The applicant has been afforded the opportunity on 4 occasions to file evidence concerning the means by which the agency obtained his address information. He has not done so. There is nothing in evidence and submissions before the Tribunal in relation to the manner in which the address information was collected that discloses any confidential matter in relation to the applicant. By the directions made in relation to the conduct of the substantive application to hearing, and by the directions made for the filing of evidence and submissions in relation to the revocation application specifically, the applicant has had the opportunity to discharge his practical onus of establishing that the non-publication order remains desirable. He has not done so. 56 There is no basis upon which it is open to the Tribunal to draw and inference that the agency's revocation application is motivated by some form of malignant collateral purpose, nor is there any basis in the proceedings as they have been conducted to date that would permit the Tribunal to infer that the agency intends to engage in some form of attack on the applicant's privacy at the final hearing. This is baseless speculation by the applicant. It does not provide a basis for the Tribunal to conclude that the non-publication order remains desirable. 57 It follows from these reasons that I cannot be satisfied that the non-publication order remains desirable because of the confidential nature of any evidence or matter that is before the Tribunal in these proceedings. Nothing of a confidential nature is to be found in the subject matter of the proceedings in connection with the applicant's name. 58 That leaves for consideration whether there is any other reason why the non-publication order remains desirable. There is one matter which requires some attention. The applicant has made a number of applications to the Tribunal in which the agency has been the respondent over several years. It appears that in each case that he has done so the Tribunal has made a non-publication order by virtue of which he has been assigned the same pseudonym. There are published decisions of the Tribunal in relation to those matters which use this pseudonym. As a consequence, if the non-publication order is revoked in this matter, thus potentially revealing the applicant's actual name in connection with the pseudonym he has been assigned, it would potentially frustrate the non-publication orders that have been made in each other proceedings. 59 As I have noted above, the agency has made a revocation application in one of the earlier proceedings which I have determined in conjunction with the present application. I concluded in relation to that application that the non-publication order ought to be revoked for reasons I have published separately. The subject matter of those proceedings therefore does not have any implication for the revocation on the non-publication order made in this proceeding. However, there appear to be a number of other concluded matters in which a non-publication order remains in force using the same pseudonym the applicant has been assigned in these proceedings. 60 I therefore conclude that the multiple use of the pseudonym including in matters where non-publication orders remain in force is potentially an 'other reason' within the meaning of s 64(1) why it may remain desirable for a non-disclosure order to remain in force in this application. The second stage of the analysis described by Hennessy LCM in DHL at [11] is therefore reached. The Tribunal must determine if the non-publication order remains desirable for this reason having regard to other relevant considerations, in particular the principle of open justice. 61 In its submissions the agency has referred the use of the same pseudonym for the applicant in other matters. It argues that this cannot justify the continuation of the non-publication order in this case. The applicant has not made any submission on this point. 62 It must be accepted for the reasons given by the Appeal Panel in Dezfouli at [61] that there is a strong presumption in favour of open justice even in proceedings brought in this Tribunal which by operation of s 64 of the NCAT is empowered to take a more flexible, less stringent approach to the issue to ensure that it is accessible and responsive to the needs of all its users (Object 3(c) of the NCAT Act. These are proceedings brought under the PPIP Act. As a matter of general principle, a strict application of the principle of open justice in such proceedings has the potential to be self-defeating – it may result in the revelation of the personal information the proceedings have been instituted to protect. For this reason, this is the type of proceeding where it will often be desirable for a non-publication order to be made. However, as s 6 of the PPIP Act makes clear, that Act does not affect the manner in which the Tribunal must exercise its judicial functions, including with respect to the principle of open justice. 63 Consequently, the general character of the proceeding is not a sufficient reason, without more, to justify a non-publication order. There must good grounds for such an order apparent in the particular case. The only potentially good ground I have found is the prospect of the applicant's identity being disclosed in other proceedings in which the parties have been involved. However, the applicant, who bears the practical onus of establishing good grounds for the continuation of the non-publication order, has not argued this as an issue in response to the revocation application. He has not identified any confidential information or matter in the record of other proceedings that would be revealed if his pseudonym were to be revoked in this case. 64 In legal proceedings parties always face a risk of embarrassment and reputation damage. That is an unfortunate but necessary incident of open justice for the reasons explained in DHL at [7]. There is nothing in any of the materials and submissions before me that would suggest that revelation of the applicant's name in these or any other proceedings in which he has been involved in this Tribunal has the potential to cause him any additional embarrassment or reputation damage to that which may have resulted from the proceedings between the parties in the Federal Courts, and as a result of the Daily Telegraph article concerning them. Even if I were to be wrong in that conclusion any further embarrassment or reputation damage that may be visited upon the applicant by the revocation of the non-publication order in this case would not be a sufficient reason to continue the order in all of the circumstances of this case. The nature and scope of appeals 1. By s.80(2)(a) of the NCAT Act an internal appeal, such as the appeals before us, can be made to the Appeal Panel with leave in the case of an 'interlocutory decision' of the Tribunal at first instance. 'Interlocutory decision' is defined as including any decision concerning 'the prohibition or restriction of the disclosure, broadcast or publication of matters'. This plainly would include the two Decisions that are before us. Accordingly, leave of the Appeal Panel is required. 2. The principles for the grant of leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35] where the Appeal Panel said: As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave. 1. The principal guidelines for the grant of leave to appeal generally are well established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17, (Collins v Urban). They are the same principles applied by the courts, see, for example, Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [28]. 2. These principles were summarised in Collins v Urban at [84](1) and (2) as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. The Notices of Appeal 1. The Appellant was self-represented before us at the hearing of both appeals. He contented himself with the written submissions, which were in identical terms, in respect of both sets of proceedings. We are grateful for the succinct matter with which he therefore conducted the appeals. We have considered those written submissions carefully. 2. Ms T. Nguyen, solicitor for the Crown Solicitor, appeared for the Commissioner. The Commissioner filed a bundle of documents consisting of all of the materials below along with a set of helpful, exhaustive and erudite submissions. We are indebted to Ms Nguyen for the competent manner in which she has prepared materials for the benefit of the parties and the Appeal Panel. 3. As noted already above, the notices of appeal raise three grounds of appeal in identical terms, to which we will now turn. Ground 1 1. Ground 1 is as follows: The Tribunal denied the appellant natural justice by failing to inform the appellant that he bears the practical onus of establishing good grounds for the continuation of the non-publication order and failing to give the appellant an opportunity to adduce evidence to establish that the non-publication order remains desirable. 1. Apart from his written submissions, the Appellant sought leave to rely upon new evidence, being a statement of his dated 23 March 2022 (the Statement). In that Statement, the Appellant sets out what occurred in the Magistrates Court of Queensland in December 2017 and on 2 August 2018. On the latter occasion, the Appellant alleges that in answer to a question of the Magistrate he disclosed his address. 2. The Appellant goes on to contend that the disclosure of the address in this way is subject to an implied undertaking that his address would not be used by any party in the proceedings without the leave of the Court, including for any ulterior purpose, such as the subsequent Federal Circuit Court proceedings. The Appellant contends that a party to the Magistrate's proceedings, or that party's solicitor, or a person acting on behalf of such persons disclosed the Appellant's address to the Respondent for an ulterior purpose and in breach of the implied undertaking and the Australian Solicitors' Conduct Rules. 3. The Appellant concludes in that Statement that the circumstances of the proceedings before the Magistrate 'is confidential and that the disclosure of the untested allegations' that were made in court concerning the Appellant will irreversibly damage his reputation if he is identified as the applicant in the first or second set of proceedings. 4. We note the Appellant in ground 1 does not dispute the conclusions reached by the Tribunal as to the way in which the onus of proof was to be applied or not applied between the parties. In particular, the Appellant does not dispute the Tribunal's conclusion that he bore a 'practical onus' of establishing some ground for the continuation of the non-publication order. The contention being raised is that the Tribunal fell into error in failing to inform the Appellant of such a 'practical onus', and failing thereafter to give the Appellant an opportunity to adduce some evidence to establish the desirability of the non-publication orders remaining. 5. The Appellant submitted to the Tribunal below that the Respondent bore the onus of establishing that the non-publication orders were not correctly made: First Decision [32]; Second Decision [45]. The Appellant contended that he bore no onus of establishing the grounds on which the non-publication orders were made when justifying their continuance: First Decision [33]; Second Decision [46]. 6. The Respondent submitted to the Tribunal below that the only onus she bore in relation to the revocation application was to place material before the Tribunal that was capable of persuading it that the non-publication orders are no longer desirable. The Respondent also submitted that the Appellant bore the onus of placing material before the Tribunal that is capable of persuading it that it was desirable for the non-publication order to continue: First Decision [37]; Second Decision [50]. 7. The Tribunal below clearly noted that the Appellant and Respondent approached the matter on the basis that it is the other that bore the onus of proof of establishing that the continuation of a non-publication order remains desirable, or that it is no longer desirable, respectively: First Decision [49]; Second Decision [63]. 8. The Tribunal below found that whilst neither party owed any onus of proof as such, the Appellant did bear a 'practical onus' of establishing good grounds for the continuation of the non-publication orders: First Decision [50], [63]; Second Decision [64], [77]. 9. The Tribunal also found that the Appellant had the opportunity to discharge his practical onus of establishing that the non-publication orders remain desirable, and that he had not done so: First Decision [55]; Second Decision [69]. 10. In these circumstances, the Appellant on appeal submits that he was proceeding on a misunderstanding as to who bears the onus of proof. Accordingly, the Appellant submits that the Tribunal could have taken measures to correct any misunderstanding as to the nature of the proceedings at an oral hearing: citing in support s.38(5) of the NCAT Act. In these circumstances, the Appellant contends, it was not appropriate to dispense with an oral hearing and determine the matter 'on the papers'. 11. Absent an oral hearing, the Appellant submits the Tribunal below was obliged to raise any issues that it considered relevant and significant to the disposition of the Respondent's application and invite the parties to lead evidence and make submissions about them. At the very least, so the Appellant continued, the Tribunal below was obliged to forewarn the parties by correspondence that the Appellant was proceeding on a misunderstanding because he has a practical onus of establishing good grounds for the continuation of the non-publication orders: citing in support Van Zyl & Anor v Rentstar [2021] QCATA 120 at [57]. If the Tribunal had done so, the Appellant contends that he would have given the evidence in his statement dated 23 March 2022 to discharge his practical onus. 12. In conclusion, the Appellant submits that the Tribunal below denied him natural justice by failing to inform him that he bore the practical onus of establishing good grounds for the continuation of the non-publication orders and in failing to give the Appellant an opportunity to adduce evidence to establish that the non-publication orders remain desirable. 13. The principles concerning the assistance a court, or tribunal, is required to give a self-represented litigant were considered by Gleeson JA (with whom Macfarlan and Emmett JJA agreed) in Pollock v Hicks [2015] NSWCA 122 at [91]: ... In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] (Gleeson JA; Beazley P and Barrett JA agreeing), the following propositions which emerge from those authorities were identified. First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]- [53]. Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14. 1. It is plain that the Appellant understood the practice and procedure of the Tribunal and what was to be expected of him. Directions were made for the filing of evidence and submissions. It is not contended by the Appellant that he did not understand those directions and the obligation that he was under to file such evidence as he thought he should, along with submissions. Further, the Appellant plainly understood that it was submitted that he bore an onus to demonstrate that the non-publication orders remained desirable. 2. Accordingly, it is plain that the Appellant was fully on notice that the Respondent's submission may be accepted, and that he ought to put forward arguments, submissions and evidence to support the non-publication orders remaining in place. 3. In our view, there is no obligation on the Tribunal to provide legal advice on the matter dividing the parties and forewarn the Appellant that as he bore some form of onus that he should not withhold evidence on the issue of the desirability of the non-publication orders remaining in place. To issue some forewarning to the Appellant that he should make sure he has put forward all of his evidence that bore on the issue of the desirability of the non-publication orders remaining in place as he may bear some onus, would amount to providing the Appellant with advice as to how he should conduct his case. In our view, there is no obligation on the Tribunal to give such warning. 4. For example, Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects; ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305: "…procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to enquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers Industrial Ltd; ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358." (Original emphasis) 1. Here it is plain that the Appellant had a reasonable opportunity to present his case and any evidence he wished. Further, he should reasonably have apprehended that the question of whether or not he bore an onus of proof was a live issue. In other words, it was plain that the Appellant was on notice that he may be required by the Tribunal to establish why it was desirable for the non-publication orders to continue. It was not reasonable for the Appellant to make the assumption, which he contends he made, that the Tribunal would forewarn him that he bears some onus and that he should put on whatever evidence he could in support of his contentions. 2. We are also fortified in our view by considering the comments of Justice Gleeson (with whom Emmett AJA agreed) in the NSW Court of Appeal in Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 at [26]-[27]: "26. Plainly, Mr Ritson had a reasonable opportunity to make submissions on costs had he wanted to, and he did not take the opportunity during the 2013 hearing. By stating in his written submissions a wish to be heard separately on the question of costs, Mr Ritson sought to arrogate to himself a separate hearing on the question of costs to which he had no entitlement, nor legitimate expectation. 27. The primary judge was not required in the circumstances to afford Mr Ritson a separate hearing on costs. Nor was the judge required to ensure that Mr Ritson took advantage of the opportunity to make submissions on costs during the 2013 hearing: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). The failure by Mr Ritson to address on costs at the 2000 hearings could be taken as indicating that no special or unusual costs orders were required." 1. Similarly here, the Tribunal below was not required in the circumstances to afford the Appellant a separate opportunity after deciding the question of onus to produce any further evidence. Procedural fairness did not require the Tribunal to warn the Appellant that he may bear an onus of proof when it was plain this was a live issue in the proceedings. 2. In conclusion, the Tribunal gave the Appellant a reasonable opportunity to make submissions and provide evidence on the Respondent's application to revoke the non-publication orders. That opportunity was afforded to the Appellant in the plain knowledge that it was contended by the Respondent that he bore an onus to demonstrate that the continuation of the non-publication orders was desirable. The fact that the Appellant did not take up the opportunity he plainly knew he had to put forward all of the relevant evidence at his disposal is not something about which he can now complain and contend this amounted to a denial of procedural fairness which arose from that choice: see Waters v Waghorn [2016] NSWCATAP 247 at [33]. 3. Accordingly, we refuse to grant leave to appeal on this ground and reject the ground. 4. We also refuse to grant the Appellant leave to rely upon the new evidence in the form of his statement dated 23 March 2022. The Appellant, quite correctly, only sought to rely upon this evidence in the event that ground 1 of his notices of appeal was upheld. We note that this evidence was reasonably available to him at the time. Ground 2 1. Ground 2 is as follows: "The Tribunal erred by failing to take into account the following considerations: a. The circumstances surrounding the collection of the address information is or likely to be personal information of the appellant; b. The circumstances surrounding the collection of the address information have never been disclosed in any published court decisions or news articles; c. The circumstances surrounding the collection of the address information will need to be the subject of findings of fact published in the Tribunal's reasons for decision in the substantive application for administrative review; d. The respondent was responsible for disclosing the address information to the Federal Circuit Court after collecting it, thereby putting it in the public domain; e. The appellant was disadvantaged in preparing his case because the respondent refused to confirm the circumstances surrounding the collection of the address information; f. A pseudonym order is a minimal incursion on the principle of open justice;" 1. The submissions of the Appellant were brief and, accordingly, can be set out in full as follows: "The Tribunal below was required to take into account, or give sufficient weight to, relevant matters when exercising the discretion to revoke the non-publication orders [citing Thompson v Chapman [2016] NSWCATAP 6 at [86]]. The Tribunal below failed to deal at all or in detail with the relevant matters set out in ground 2(a)-(f) in the exercise of its discretion. The reasons for the first and second decisions contain no discussion as to whether the relevant matters were weighed against each other in determining whether the non-publication orders should be revoked. By reason of the failure to deal at all or in detail with those relevant matters, an inference is open to be drawn that the Tribunal below erred by failing to take into account those relevant matters in the exercise of the discretion to revoke the non-publication orders." 1. In respect of whether or not the Tribunal failed to take into account a relevant (i.e., mandatory) consideration, the Appeal Panel in Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28] stated the following: "Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing), instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory manner must be approached with caution, with care to avoid any impermissible reconsideration of the merits of the decision." 1. An alleged failure to give 'sufficient weight' to evidence does not identify a question of law: AHB v HSW Trustee and Guardian [2017] NSWCATAP 79; House v R (1936) 55 CLR 499. The correct approach is to set aside administrative decisions where the weight given to a factor is considered 'manifestly unreasonable', or where a finding or inference is made in the absence of supporting evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [70]-[75]. 2. In order for the Appellant to make out that the Tribunal below erred by failing to take into account relevant considerations, such considerations must have been required to be taken into account under the relevant legislation. In this instance, the relevant legislation is s.64(3) of the NCAT Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. 3. It is plain that s.64(3) of the NCAT Act confers a very broad discretion on the Tribunal that is only expressly limited by the requirement in s.64(2) not to make an order inconsistent with s.65. The operation of s.65 is limited to categories of proceedings listed in s.65(1) of the NCAT Act that do not include proceedings relating to an administrative review application under the PPIP Act such as the proceedings the subject of these two appeals. 4. The NCAT Act does not otherwise expressly limit or specify the matters the Tribunal is to take into account in exercising its powers under s.64(3) of the NCAT Act. On its proper construction, s.64(3) allows for, but does not require, the Tribunal to consider a range of factors to determine whether it is "desirable" to vary or revoke an order under s.64(1) of the NCAT Act: see, for example, the non-exhaustive factors listed in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) at [81] for making an order under s.64(1). The "considerations" to which the Appellant referred in Ground 2 are not, in our view, mandatory considerations which may be derived from a construction of s 64(1) of the NCAT Act. Considerations (a) to (e), as identified by the Appellant, are matters specific to his circumstances, not considerations which the legislature intended to be mandatory as a matter of statutory interpretation. 5. Further, where the exercise of a broad statutory discretion is involved, such as under s.64(3) of the NCAT Act, on appeal on a question of law, such exercise can only be overturned in limited circumstances as set out by the High Court in House v The King (1936) 55 CLR 499 at 505-506. 6. Accordingly, the Tribunal could not have "erred", as contended for by the Appellant, in not taking into account the six factors raised by the Appellant. This is sufficient basis to reject this ground of appeal and refuse to grant leave to appeal. 7. Further and in any event, the Decisions of the Tribunal do fairly demonstrate that the Tribunal did consider the first, second, third and sixth factors raised by the Appellant. 8. In relation to the first three factors, which concern the speculative future disclosure of the Appellant's personal information by the Tribunal which may not already be in the public domain, in our view, the Tribunal did consider such matters in the following parts of the two Decisions: 1. at [52] of the First Decision and [39] of the Second Decision the Tribunal summarised the Respondent's submissions to the effect that the Tribunal should reject the potential for future disclosure of personal information in the course of the hearing or in the Tribunal's reasons as a basis for the Tribunal to be satisfied that the first and second non-publication orders remain desirable; and 2. at [76] of the First Decision and at [62] of the Second Decision, the Tribunal acknowledged that privacy proceedings are instituted to protect a person's personal information but that, pursuant to s.6 of the PPIP Act, the Tribunal is not bound by the PPIP Act in the exercise of its judicial functions. 1. In relation to the sixth factor, we are satisfied the Tribunal did consider whether orders made under s.64(1)(a) of the NCAT Act involved a lesser incursion of the principle of open justice as can be reflected in the following parts of the Decisions: 1. at [58] of the First Decision and at [45] of the Second Decision where the Tribunal quotes from DLH v Nationwide News Ltd [2018] NSWCATAD 92, which in turn quotes from Dezfouli, that the "important differences between the types of order (as in this case) prohibiting disclosure of the identity of a participant and that a hearing occur in closed session, without notice to a party" is a relevant factor; 2. at [18](c) of the First Decision and at [13](c) of the Second Decision where the Tribunal made the express statement that it had considered the Respondent's submissions of 8 December 2021, which made the point about a non-publication order as to a litigant's name is a recognisable lesser incursion on the principle of open justice; and 3. at [40] of the First Decision and at [27] of the Second Decision the Tribunal summarises paragraphs of the Respondent's submissions of 8 December 2022, where again the point is made. 1. We do not accept that the fourth and fifth factors could be regarded as relevant to the Tribunal's exercise of its discretion under s.64(3) of the NCAT Act to revoke the non-publication orders. In respect of the fourth factor, the mere fact that the Respondent sought an order for substituted service in the Federal Circuit Court with respect to service of a creditor's petition on the Appellant to enforce compliance with a costs order nearly a year prior to the Appellant commencing proceedings no.2020/141477 does not, in our view, constitute a relevant factor as to whether or not it would be "desirable" for the non-publication order to remain in place. 2. Similarly, in our view, the decision of the Respondent to "refuse to confirm the circumstances surrounding the collection of the address information", which (in part at least) involves considerations of waiver of professional legal privilege, is also not a relevant consideration as to whether or not the non-publication orders should remain in place. 3. Finally, to the extent the written submissions seek to raise the question of the Tribunal not giving proper weight to the above circumstances, we are satisfied the decision was reasonably open on the evidence, particularly given the prior public disclosures referred to by the Tribunal, the submissions of the Appellant and the wide statutory discretion involved. 4. Accordingly, we reject this ground of appeal and would decline to grant leave to appeal. Ground 3 1. Ground 3 is as follows: "The Tribunal erred by making the revocation order which frustrates non-publication orders that have been properly made in other proceedings between the parties." 1. The Tribunal considered whether or not the fact that there existed other non-publication orders involving the Appellant should be a factor against revoking the non-publication orders the subject of the two sets of proceedings. The Appellant submitted that the existence of those orders provided good grounds for the continuation of the non-publication orders because it was undesirable for the orders of the Tribunal to conflict with the orders in the other proceedings. 2. The Appellant did not elaborate on this submission as to there being a "conflict". In our view, there is no conflict between an order revoking the two non-publication orders in question and the continuance of the non-publication orders made in other proceedings in the Tribunal. In our view, there is nothing inconsistent with the Tribunal not prohibiting the publication and broadcast of Mr Ritson's name in connection with the two sets of proceedings in question but still maintaining a prohibition of disclosure of the Appellant's name in connection with other proceedings. 3. The real point the Appellant appears to be making is that disclosure of his name in these proceedings may lead the reader to be able to identify him in the other proceedings. In our view, it is not clear that this would be likely. The administrative process by which a litigant is given a pseudonym is not, as far as any public statement of the Tribunal is concerned, meant to be a unique code or pseudonym for each person the subject of a non-publication order in separate proceedings. We note the Appellant has been given several pseudonyms. 4. Nevertheless, in accordance with a suggestion of the Respondent, we will redact the citations of the other proceedings contained in the First and Second Decisions. Otherwise, we do not think the Tribunal erred in revoking the non-publication orders having considered the non-publication order in the other sets of proceedings. 5. Nextly, the Appellant submitted that if the Tribunal considered that the reasons why the non-publication orders were made in the other proceedings are relevant considerations, the Tribunal ought to have considered the published decisions or reviewed the Tribunal files. 6. In our view, the Appellant has misunderstood the Tribunal's reasons. The Tribunal did not state that it was of the view that the reasons for the non-publication orders in the other proceedings would be relevant to the application to revoke the non-publication orders in the proceedings in question before us. Instead, the Tribunal stated that it was the reasons for making the original non-publication orders in the two sets of proceedings before us that would have some relevance as to whether or not those orders should be revoked: First Decision at [61]; Second Decision at [48]. 7. Further, in our view, it has not been demonstrated that the issues and factual circumstances in the other proceedings for the non-publication orders in the other proceedings would be relevant to the question before the Tribunal dealing with the separate issues under the separate sets of proceedings before us. 8. In our view, in such circumstances, we are not satisfied the Tribunal erred in any way in not seeking to consider the reasons for the non-publication orders or review the files in the other sets of proceedings. 9. Finally, the Appellant submitted that the Tribunal ought to have invited the parties to give evidence or make submissions as to those reasons. The Appellant submitted this would have ensured that all of the material was disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in the matter: citing s.38(6)(a) of the NCAT Act. 10. It should be noted that s.38(6)(a) of the NCAT Act is, in its terms, only a permissive power that requires the Tribunal to ensure that all relevant material is disclosed where it has sound reason to conclude that all relevant material has not been disclosed to the Tribunal: see for example Rassis v Anaz [2019] NSWCATAP 25 at [23]-[26]; 2ND v 2ND [2020] NSWCATAP 34 at [33]. The section does not impose some sort of unqualified duty on the Tribunal to investigate whether all relevant material has been disclosed to the Tribunal: see Chen v NSW Land & Housing Corporation [2020] NSWCATAP 238 at [34]. 11. Further, as stated above, we are not satisfied that the reasons for making the non-publication orders and the Tribunal's files in the other proceedings have any relevance as to whether or not there should be a revocation of the non-publication orders in the proceedings before us. 12. In our view, the Tribunal was under no obligation to invite the parties to give evidence or make submissions as to the reasons for the non-publication orders in other proceedings. The parties were given the opportunity to make submissions on issues that they thought were relevant and there was no obligation on the Tribunal to seek submissions or evidence about such matters. 13. Accordingly, we reject this ground of appeal and decline to grant leave to appeal in respect of it. Orders 1. In order to preserve a right of appeal we will delay the revocation of the non-publication orders for 14 days. 2. The orders of the Tribunal will be: 1. Leave to appeal is refused 2. The Appeal is dismissed. 3. The reasons for decision of the Tribunal dated 14 March 2022 in proceedings 2020/141477 and 2020/178009 are not to be published, other than to the parties and the Privacy Commissioner, for a period of 14 days following publication of the Appeal Panel's reasons for decision but publication in such decisions of the citations to the other proceedings where the Appellant/Applicant was assigned a pseudonym is prohibited. 4. Pursuant to section 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 the disclosure of the name of the Appellant/ Applicant and publication of evidence given in the proceedings and of matters containing documents lodged with the Tribunal which identify the Applicant is prohibited except insofar as required for the Respondent to enforce any costs orders made in proceedings 2022/89773, for a period of 14 days following publication of the Appeal Panel's reasons for decision. 5. The operation of order 1 made on 14 March 2022 in proceedings 2020/141477 and 2020/178009 is stayed for a period of 14 days following publication of the Appeal Panel's reasons for decision, except in so far as required for the Respondent to enforce any costs orders made in proceedings 2022/89773. ********** 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: 05 August 2022