Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Seraphim v Houda [2024] NSWCATAD 341 Hearing dates: 21 October 2024 Date of orders: 1 November 2024 Decision date: 01 November 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy ADCJ, Deputy President K Stubbs, General Member Decision: 1. Under s 49(2) of the Civil and Administrative Tribunal Act 2013, the hearing of the Respondents' application for miscellaneous matters dated 8 October 2024, is to be conducted wholly in private. 2. Under s 64(1)(c ) of the Civil and Administrative Tribunal Act 2013, the publication of any evidence given before the Tribunal or evidentiary material contained in documents before the Tribunal in the Respondents' application for miscellaneous matters dated 8 October 2024, is prohibited. Following the hearing of the Respondents' application for miscellaneous matters dated 8 October 2024, the Tribunal made the following orders: 3. None of the Respondent's applications for miscellaneous matters dated 8 October 2024 is granted. 4. Ms Seraphim is to file and serve any application for costs by 1 November 2024. 5. The proceedings are stood over for further directions by AVL on 3 December 2024 at 10 am. Note 1: the Respondent has indicated that it may appeal Order 3 above and the Tribunal has agreed to provide written reasons for that decision. To preserve the confidentiality of the information the subject of the Respondents' application for miscellaneous matters dated 8 October 2024, Orders 1 and 2 continue in effect pending further order of the Tribunal. Note 2: there is no direction for the Respondent to reply to any application for costs until directed to do so by the Tribunal. Catchwords: CIVIL PROCEDURE – Hearings – Suppression and non-publication – where Respondent to proceedings under the Anti-Discrimination Act seeks to have hearing held in private and publication of evidence prohibited – whether it is "desirable" to make those orders Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Cases Cited: Bettington v Commissioner of Police [2021] NSWCATAP 110 Burns v Corbett [2018] HCA 15 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 Rinehart v Welker [2011] NSWCA 403 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Texts Cited: Nil Category: Procedural rulings Parties: Hana Seraphim (Applicant) Adam Houda (First Respondent) Lawyers Corp Pty Ltd (Second Respondent) Representation: Applicant (self-represented) Counsel: M Thangaraj SC/C Parkin (First and Second Respondents) Solicitors: Murphy's Lawyers Inc (First and Second Respondents) File Number(s): 2024/00104051 Publication restriction: See Orders 1 and 2 above. REASONS FOR DECISION Background 1. The Applicant, Ms Seraphim, alleges that the First Respondent (Mr Houda) and the Second Respondent, Lawyers Corp Pty Ltd, have breached the sexual harassment and victimisation provisions of the Anti-Discrimination Act 1977 (NSW). Before the hearing started, the Tribunal dealt with an application for miscellaneous matters by the Respondents. In summary, the orders sought were that the proceedings be conducted wholly in private, that the names of the parties and witnesses not be disclosed and that certain evidence not be published. Alternatively, the Respondents sought non-publication of certain evidence. We will refer to those orders collectively as the "confidentiality orders". 2. Ms Seraphim opposed the making of the confidentiality orders. 3. With no objection from either party, Ms Barr made submissions on behalf of Nationwide News Pty Ltd, the publisher of The Daily Telegraph and the Sunday Telegraph. She also opposed the making of any of the confidentiality orders sought by the Respondents. 4. Ms Seraphim did not object to the application for confidentiality orders being conducted wholly in private or the publication of the evidence given in those proceedings being prohibited. It was desirable to make those orders to protect any rights of appeal the Respondents may exercise. Orders 1 and 2, to that effect, are set out at the end of these reasons and on the cover sheet. 5. After hearing evidence and submissions in a closed hearing, the Tribunal decided not to make any of the confidentiality orders sought by the Respondents in relation to the substantive proceedings. That decision, contained in Order 3, was conveyed to the parties orally at the time. These are the written reasons for that decision. Tribunal's powers to close a hearing and make suppression and non-publication orders 1. Under s 49(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the default position is that hearings are open to the public: 49 Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. 1. Section 49(2) provides that the Tribunal may order that a hearing be conducted wholly or partly in private: (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it 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. 1. Section 64 of the NCAT Act gives the Tribunal power to make certain kinds of non-disclosure and non-publication orders: 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. Confidentiality orders sought by the Respondents 1. The Respondents applied for the following orders in the substantive proceedings: 1. An order that the hearing of this complaint be conducted wholly in private pursuant to s 49(2) of the NCAT Act. 2. An order that the following be prohibited, pursuant to s 64(1)(a), (b) and (c) of the NCAT Act: 1. the disclosure of the names of all persons who are parties to, witnesses in, or otherwise mentioned in the evidence or submissions in the proceedings; 2. the publication or broadcast of any report of the proceedings in the Tribunal; and 3. the publication of evidence given before the Tribunal and matters contained in any documents lodged with the Tribunal or received in evidence by the Tribunal. 1. Alternatively to the orders identified above, the Respondents sought the following orders: 1. An order that the following be prohibited, pursuant to s 64(1)(a), (b) and (c) of the NCAT Act: 1. The publication of evidence given before the Tribunal (or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal) concerning: 1. WhatsApp exchanges between Ms Seraphim and the First Respondent pursuant to s 64(1)(c) of the NCAT Act; 2. Certain matters to be identified in private hearing; and 1. The publication or broadcast of any report of so much of the proceedings in the Tribunal that refer to, or otherwise disclose, the contents of the WhatsApp exchanges or sexual conduct engaged in between Ms Seraphim the First Respondent pursuant to s 64(1)(b) of the NCAT Act. Relevance of WhatsApp messages to the complaints under the Anti-Discrimination Act 1. Mr Houda is principal of his own firm, Lawyers Corp Pty Ltd. In 2020 Ms Seraphim was a law student at the University of Wollongong. As part of the University's Legal Internship Program she obtained a placement with Lawyers Corp Pty Ltd under the supervision of Mr Houda. Mr Houda interviewed her on 17 November 2020 and her first day of work was 8 December 2020. Ms Seraphim completed a 20 day placement on 25 February 2021 and continued to work on an ad hoc basis until 16 March 2021. Ms Seraphim alleges that during that time Mr Houda sexually harassed her at their workplace and then victimised her in breach of the Anti-Discrimination Act 1977 (NSW). 2. NOT FOR PUBLICATION 3. NOT FOR PUBLICATION 4. NOT FOR PUBLICATION Publicity about the case 1. Ms Seraphim provided evidence of an article published on 5 August 2024 in the Sunday Telegraph. As this information is already in the public domain, it is not subject to the confidentiality orders we have made in the interlocutory application. The relevant parts of the article are reproduced below: A prominent lawyer accused of sexually harassing a woman while she was on work experience at his office says the evidence proves the complaint made is nonsense and contradicted by "available and objective evidence". Adam Houda has told the Sunday Telegraph he terminated the work experience being undertaken by Hana Seraphim because "amongst other things" she failed to disclose details of associations she had which he claimed rendered her work experience at his law firm untenable. In an exclusive interview on Sunday Mr Houda also claims the "objective evidence completely contradicts and is inconsistent with the complaint made" by Ms Seraphim who has accused him of harassment and victimisation under the Anti-Discrimination Act during her three-month work experience stint at his Sydney firm, Lawyers Corp, that ended in 2021. "This complainant has been complaining about me for years now. She's complained to various government agencies who have all investigated her assertions and rejected them", Mr Houda said. "She now tries her luck with an anti-discrimination complaint. The complainant was never discriminated against nor was she ever harassed." "Needless to say, I have never behaved inappropriately towards any woman. My former and present female friends and legal colleagues across all my lifetime would all attest to my character in this regard." . . . The Telegraph understands that dozens of witnesses will be called in response to claims by Ms Seraphim, as well as text messages presented to contradict that the allegations took place. Mr Houda refused to comment any further on the allegations, saying that the "evidence will speak for itself". The 49-year-old has acted in some of the state's most high profile cases involving accused terrorists, bikie gang members and represented dozens of sport stars and actors. Ms Seraphim, who worked in the sex industry as an escort before studying law, now works as a prosecuting lawyer in another state. . . . The matter has been set down for a three-day hearing in October. 1. We note the reference to Ms Seraphim now working "in another state". Our understanding is that Ms Seraphim is not working in another state. We make that observation because if she is a permanent resident of a state other than New South Wales, that would raise the issue of whether the Tribunal is unlawfully exercising federal jurisdiction: Burns v Corbett [2018] HCA 15. 2. NOT FOR PUBLICATION 3. The statement that Ms Seraphim worked in the sex industry before studying law, is not in quotation marks and we make no finding that that information, or any other information not in quotation marks, came from Mr Houda. 4. NOT FOR PUBLICATION 5. The 4 August article contained the following statements: It is understood that Mr Houda vehemently denies the allegations and is preparing to strongly contest the case. … Mr Houda did not return calls yesterday and instead referred questions to his lawyer … who did not respond to questions. Ms Seraphim declined to comment. 1. It appears that despite deciding to provide no comment on 4 August 2024, Mr Houda changed his mind the following day. 2. NOT FOR PUBLICATION 3. In relation to the 5 August 2024 article extracted above, Ms Seraphim submitted that Mr Houda has deemed it appropriate to publicly present his version of events and submissions on the evidence through the media in a matter yet to be formally determined by the Tribunal. Given Mr Houda's assertion to the media that Ms Seraphim's complaint is contradicted by the evidence, that matter should be tested in a public and open forum, as should his assertion that it was Ms Seraphim's "associations" as opposed to instances of victimisation, that led to her termination. Ms Seraphim added that as Mr Houda has chosen to publicise his perspective on the case, any attempt to suppress relevant evidence undermines transparency and the integrity of the proceedings. 4. In determining whether to make any of the confidentiality orders sought by the Respondents, we have not taken into account the fact that Mr Houda has spoken to the media about the case and claimed that "objective evidence completely contradicts and is inconsistent with the complaint made". 5. NOT FOR PUBLICATION The principle of open justice and the desirability or otherwise of derogating from that principle 1. There is a public interest in open justice. The High Court has described the rationale for open justice as being "that court proceedings should be subjected to public and professional scrutiny …": Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44], French CJ, Hayne, Kiefel, Bell and Keane JJ. 2. The principle of open justice is reflected in two of the objects of the NCAT Act: 3 Objects of Act The objects of this Act are— … (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members. 1. Open justice typically includes having a hearing that is open to the public, naming the parties and the witnesses and allowing publication of what transpires in the proceedings, including the evidence tendered. Unless the Tribunal makes an order to the contrary, these features apply to hearings of the kind brought by Ms Seraphim under the Anti-Discrimination Act. Both s 49(2) and s 64 of the NCAT Act give the Tribunal a broad discretion to make orders which derogate from the principle of open justice but only if satisfied that it is "desirable to do so because of the confidential nature of any evidence or for any other reason". 2. In State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [61] the Appeal Panel of the Administrative Decisions Tribunal, a predecessor to NCAT, explained that the equivalent provisions to s 49 and s 64 of the NCAT Act must be applied in accordance with consistent standards and values: [It] is unthinkable that the word 'desirable' in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is 'desirable' under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. 1. The principle of open justice is given greater prominence in court proceedings. Under s 6 of the Court Suppression and Non-publication Orders Act 2010: 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 1. In courts, an order derogating from this objective may only be made where it is "necessary" to do so on certain public interest grounds or in narrow circumstances to protect private interests: Court Suppression and Non-Publication Orders Act, s 8. In Rinehart v Welker [2011] NSWCA 403 at [106] the Court of Appeal approved of characterising "necessary" as a "strong word". The Court held that it is insufficient for the court to reach a view that a suppression order should be made because it is merely "convenient, reasonable or sensible" to do so. The word "desirable" in the NCAT legislation is not as strong as the word "necessary" in the Court Suppression and Non-Publication Orders Act but it means more than merely "convenient, reasonable or sensible". 2. As to whether the circumstances should be 'special' or 'out of the ordinary', the Appeal Panel of the Administrative Decisions Tribunal (a predecessor Tribunal to NCAT) came to the following conclusion in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [82]: In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition. 1. In Bettington v Commissioner of Police [2021] NSWCATAP 110 at [41], the Appeal Panel warned against substituting the words "special" or "extraordinary" for the natural and ordinary meaning of the word "desirable" in s 49 and s 64 of the NCAT Act. 2. Mr Houda submitted that the process of determining an application under the Court Suppression and Non-publication Orders Act is not dissimilar from that under the NCAT Act. As explained in Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 at [227]–[229], there are two differing approaches: 227 Two differing approaches to the application of s 8(1)(c) have emerged. One has been dubbed "the probable harm" approach; the other "the calculus of risk" approach: see AB (a pseudonym) v R (No 3) [2019] NSWCCA 46 at [56]-[58]. 228 Put briefly, the "probable harm" approach requires proof of the probability of harm in the absence of an order. The "calculus of risk" approach requires a more nuanced consideration, taking into account the nature, imminence and degree of likelihood of harm to occur to the relevant person. The "calculus of risk" approach appears, in the decided cases, to have gained ascendency as the preferred approach: see AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6; AB (No 3) (NSWCCA); Wilson v Basson [2020] NSWSC 512 at [18]. 229 We likewise prefer the calculus of risk approach. 1. The Court (Bathurst CJ; Leeming JA; Simpson AJA) went on to hold that against the "calculus of risk" must be balanced the "important consideration of open justice". In particular the Court identified "the degree to which an order … would encroach upon that principle". Mr Houda submitted that the "calculus of risk" should not be applied with the stringency required by the Court Suppression and Non-publication Orders Act. The use of the lower threshold of "desirable" and the width of the potential reasons ("any other reasons") in the NCAT Act indicates that the Parliament intended that orders for suppression and non-publication orders be much more readily available to NCAT. While we agree with that conclusion, we note that both NCAT and its predecessors have "consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting": State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [61]. 2. The strength of the public interest in open justice will vary depending on the kind of proceedings the Tribunal is determining. In our view, it is relatively strong in these kinds of proceedings where the Tribunal is exercising judicial power to resolve a civil dispute between individuals under the Anti-Discrimination Act. The fact that the parties are not public figures or that the criminal law is not invoked, does not mean that the principle of open justice should be given less weight. 3. The matters to be taken into account when deciding whether to close a hearing or make a non-disclosure or non-publication orders were summarised in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [81]: 81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 1. These matters remain relevant and applicable when interpreting the slightly differently worded provisions in s 49 and 64 of the NCAT provisions. They reflect the standards and values embodied in the NCAT Act. 2. NOT FOR PUBLICATION 3. NOT FOR PUBLICATION Evidence 1. NOT FOR PUBLICATION 2. NOT FOR PUBLICATION Reasoning and Conclusion Approach 1. The question to be determined is whether any of the matters put by Mr Houda, either alone or in combination, make it desirable to make the confidentiality orders he seeks. That involves making factual findings about those matters, applying the "calculus of risk" approach and assessing the degree to which a particular order would encroach upon the principle of open justice as reflected in the NCAT Act for these kinds of proceedings. Confidentiality of the text messages 1. NOT FOR PUBLICATION 2. There is no need to make a finding as to whether the texts contain "confidential information" or include "personal confidences" the disclosure of which would give rise to an equitable obligation of confidence. 3. NOT FOR PUBLICATION 4. Ms Seraphim submits that there was a power imbalance which suggests that the relationship was not an equal one, but one involving an abuse of power by Mr Houda. We make no finding about that issue in these proceedings. 5. NOT FOR PUBLICATION NOT FOR PUBLICATION 1. NOT FOR PUBLICATION 2. NOT FOR PUBLICATION NOT FOR PUBLICATION 1. NOT FOR PUBLICATION NOT FOR PUBLICATION 1. NOT FOR PUBLICATION 2. NOT FOR PUBLICATION 3. NOT FOR PUBLICATION 4. NOT FOR PUBLICATION 5. NOT FOR PUBLICATION 6. NOT FOR PUBLICATION NOT FOR PUBLICATION 1. NOT FOR PUBLICATION 2. If orders were made in accordance with Mr Houda's option (hearing wholly in private and the various orders under s 64(1) of the NCAT Act) that would effectively extinguish the principle of open justice as it is articulated in the NCAT Act in relation to these kinds of proceedings. Even if the alternative orders were made and the hearing was open to the public, the majority of the evidence would not be able to be published. While the principle of open justice would not be extinguished entirely, the critical evidence on which many of the Tribunal's findings will be based, would not be open to scrutiny. 3. NOT FOR PUBLICATION Orders 1. Under s 49(2) of the Civil and Administrative Tribunal Act 2013, the hearing of the Respondents' application for miscellaneous matters dated 8 October 2024, is to be conducted wholly in private. 2. Under s 64(1)(c ) of the Civil and Administrative Tribunal Act 2013, the publication of any evidence given before the Tribunal or evidentiary material contained in documents before the Tribunal in the Respondents' application for miscellaneous matters dated 8 October 2024, is prohibited. Following the hearing of the Respondents' application for miscellaneous matters dated 8 October 2024, the Tribunal made the following orders: 3. None of the Respondent's applications for miscellaneous matters dated 8 October 2024 is granted. 4. Ms Seraphim is to file and serve any application for costs by 1 November 2024. 5. The proceedings are stood over for further directions by AVL on 3 December 2024 at 10 am. Note 1: the Respondent has indicated that it may appeal Order 3 above and the Tribunal has agreed to provide written reasons for that decision. To preserve the confidentiality of the information the subject of the Respondents' application for miscellaneous matters dated 8 October 2024, Orders 1 and 2 continue in effect pending further order of the Tribunal. Note 2: there is no direction for the Respondent to reply to any application for costs until directed to do so by the Tribunal. ********** 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: 12 November 2024