Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v BRJ (No 3) [2015] NSWCATOD 159 Hearing dates: 7 December 2015 Date of orders: 07 December 2015 Decision date: 07 December 2015 Jurisdiction: Occupational Division Before: L Robberds QC, Senior Member P Wass SC, Senior Member E Hayes, General Member Decision: Orders 2 and 3 made on 16 July 2015 be varied such that: (a) the respondent's name and the decision dated 16 July 2015 in these proceedings (Council of the New South Wales Bar Association v BRJ [2015] NSW CATOD73); and (b) documents and evidence filed with the Tribunal in these proceedings, may be disclosed by the applicant or the New South Wales Bar Association or any officer or any employee of those bodies to: (i) the New South Wales Privacy Commission; and (ii) the Anti-Discrimination Board of NSW; and (iii) any Court or Tribunal in which the respondent commences proceedings against the applicant or the New South Wales Bar Association or any officer or employee of those bodies Catchwords: Variation of publication restriction orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Legal Profession Act 2004 (NSW) Cases Cited: Council of the New South Wales Bar Association v BRJ [2015] NSW CATOD 73 Category: Procedural and other rulings Parties: Council of the New South Wales Bar Association (Applicant) BRJ (Respondent) Representation: Counsel: M Castle and A Bailey (Applicant) Solicitors: Eakin McCaffery Cox (Applicant) File Number(s): 1320028 Publication restriction: Yes reasons for decision 1. On 21 October 2015 the Council of the New South Wales Bar Association (the applicant) filed in the Occupational Division of the Tribunal, an application seeking orders varying orders 2 and 3 made by the Tribunal on 16 July 2015 in the proceedings the Council of the New South Wales Bar Association v BRJ [2015] NSW CATOD 73. 2. The application was set down for hearing on 7 December 2015. On that day the applicant appeared by counsel but the respondent, whose name for the purposes of these proceedings was earlier anonymised as BRJ, did not appear. 3. The Tribunal accepted as evidence exhibits A – F and was satisfied from those exhibits that the respondent had been served with the application and knew that the application had been fixed for hearing on 7 December 2015. 4. Orders 2 and 3 made by the Tribunal on 16 July 2015 are as follows: (2) The disclosure of the respondent's name is prohibited; (3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representatives. 1. Paragraph 95 of the Tribunal's reasons published on 16 July 2015 recorded that in its written submissions dated 19 March 2015, the applicant stated that it would not oppose an order under s 64 of the Civil and Administrative Tribunal Act 2013 that restricts access to and disclosure of evidence filed with the Tribunal in the proceedings to the Legal Services Commissioner, the parties and their respective legal representatives, subject to further order of the Tribunal. It was recorded that the respondent did not oppose the making of such an order and that the Tribunal was of the view that having regard to the respondent's physical and mental conditions which were detailed in the reasons, an order along the lines proposed by the applicant should be made. 2. The circumstances which have given rise to the present application are detailed in an affidavit of Philip Alan Selth affirmed 19 October 2015. Paragraphs 2 – 4 of that affidavit are in the following terms: (2) On 21 August 2015 the Respondent in these proceedings sent an email to the Bar Association attaching a complaint that she had made to the New South Wales Privacy Commissioner dated 20 August 2015 against the Bar Association pursuant to the Health Records and Information Privacy Act 2002 (NSW) in relation to a Notice issued to the Respondent pursuant to section 46(5) of the Legal Profession Act 2004 in relation to the Respondent's application for the grant of a local practising certificate dated 22 May 2015 received on 27 May 2015; (3) On 27 August 2015 the Respondent in these proceedings sent an email to the Bar Association attaching a complaint that she had made to the Anti-Discrimination Board of New South Wales dated 26 August 2015 against me personally and against the Bar Council alleging discrimination against the Respondent on the basis of disability; (4) On or about 4 September 2015 I received a letter from the Anti-Discrimination Board dated 4 September 2015 advising that the Anti-Discrimination Board received a written complaint of alleged discrimination from the Respondent on 27 August 2015 and requesting a written response to the allegations as set out in the Respondent's complaint. 1. The appellant made written submissions which included submissions that the New South Wales Bar Association has been, in the case of the Anti-Discrimination complaint, and likely will be, in the case of the Privacy complaint, asked to respond to the allegations made in those complaints. The effect of orders 2 and 3 made on 16 July 2015 is that the Association cannot provide a full and fair response to the complaints. It was submitted that without variation, orders 2 and 3 were oppressive and prejudicial and that, rather than protect the respondent, caused substantiative prejudice to the applicant and go beyond the purpose for which they were made. It was submitted that there was, in addition, an element of unfairness in the respondent being permitted to obtain the benefit of suppression orders in circumstances where she initiated the complaints but may, if the orders remain, then be entitled to take refuge in them, to the applicant's detriment. It was submitted that her conduct in making the complaints amounted to conduct akin to waiver and it was submitted that the orders should be varied accordingly. It was further submitted orders 2 and 3 were made to provide a level of privacy and protection of reputation to the respondent. The making of the orders sought by the applicant would not, it was submitted, deprive the respondent of that protection to the public at large and an appropriate balance would continue to be struck if the orders sought were made. 2. The Tribunal is of the view that if the orders are varied they will still provide an appropriate measure of privacy to the respondent but at the same time permit the applicant and the Bar Association of New South Wales to fully respond to the complaints which have been made by the respondent. The Tribunal is therefore of the view that subject to one matter, the variation orders sought by the applicant should be made. 3. That one matter is this: the variation sought by the applicant includes an order permitting disclosure to "any other entity to which the Respondent in future makes a complaint or invokes a review mechanism in relation to which the Applicant or the New South Wales Bar Association is called upon to respond." 4. We are of the view that without knowing what entity might come within that proposed order, it is inappropriate for such an order to be made. 5. On 7 December 2015, the Tribunal made orders and stated that it would later publish its reasons. These are those reasons. The orders made were as follows: Orders 2 and 3 made on 16 July 2015 be varied such that: (a) the respondent's name and the decision dated 16 July 2015 in these proceedings (Council of the New South Wales Bar Association v BRJ [2015] NSW CATOD73); and (b) documents and evidence filed with the Tribunal in these proceedings, may be disclosed by the applicant or the New South Wales Bar Association or any officer or any employee of those bodies to: (i) the New South Wales Privacy Commission; (ii) the Anti-Discrimination Board of NSW; and (iii) any Court or Tribunal in which the respondent commences proceedings against the applicant or the New South Wales Bar Association or any officer or employee of those bodies. 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: 24 March 2016