Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CVV v United Resource Management Pty Ltd (URM) [2016] NSWCATAD 271 Hearing dates: 14 November 2016 Date of orders: 24 November 2016 Decision date: 24 November 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey, Senior Member Decision: (1) The Applicant is to be identified by the pseudonym 'CVV' at all times in published reasons, reports and in the proceedings generally. (2) The identity of the Applicant is not to be disclosed by the parties to these proceedings, or by any other persons and he is to be referred to as 'CVV'. (3) The work and home addresses of the Applicant shall not be disclosed by the parties or any other persons. Catchwords: Non-disclosure order Legislation Cited: Civil And Administrative Tribunal Act 2013, s64(1)(a). Cases Cited: State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69; ACE v State of NSW (Tafe Commission and DET) (No 2) [2011] NSWADT77; OV and anor v QZ and Anor (No 2) [2008] NSWADT 195; D v Berkeley Challenge Pty Ltd [2001] NSWADT 92; JQ v Double Bay Out of School Hours Inc [2008] NSWADT337; LD v Director-General DET and Anor [2009] NSWADT14; R v A & B [1999] NSWADT 151; V v Y & anor [2000] NSWADT 12; X v Y & anor [2000] NSWADT 122. Category: Procedural and other rulings Parties: CVV (Applicant) United Resource Management Pty Ltd (Respondent) Representation: Counsel: N Case (Applicant) Solicitors: Legal Aid NSW (Applicant) Harris and Harris Solicitors(Respondent) File Number(s): 1610094 REASONS FOR DECISION Nature of Application 1. The Applicant has made a claim of alleged discrimination, sexual harassment and victimisation in his workplace on the grounds of imputed homosexuality. 2. This was an application under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) for a non-disclosure order, seeking suppression of the name, residential and work addresses of the Applicant in the matter, pending further order of the Tribunal. 3. Written and oral submissions were made by both parties in relation to the application. The Law 1. The Tribunal usually proceeds in accordance with the principles of "open justice". 2. Section 64(1)(a) of the NCAT Act provides that: 64 The Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The Tribunal accepts the principles set out in State of New South Wales (Justice Health) and anor v Dezfouli ( 'Dezfouli') [2008] NSWADTAP 69 interpreting a similar provision in the Administrative Decisions Tribunal Act 1997 (NSW). As the Appeal Panel observed in Dezfouli [at 58]: '... it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).' 1. That remains the case under the NCAT Act. 2. As stated in that Dezfouli 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. As stated in Carroll v Tokdogan & Anor [2015] NSWCATAD 200 (2 October 2015) at [8]: "Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, the power contained in s 64 should be exercised sparingly." 1. Nevertheless, there are instances where it is appropriate to suppress details of a party's or other name and address. This has occurred in a variety of situations in NCAT and, prior to that, in the ADT (See for example LD v Director-General DET and Anor [2009] NSWADT14; JQ v Double Bay Out of School Hours Inc [2008] NSWADT337; ACE v State of NSW (Tafe Commission and DET) (No 2) [2011] NSWADT77; OV and anor v QZ and Anor (No 2) [2008] NSWADT 195. 2. Such orders have sometimes been made where sexual harassment has been alleged: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69; D v Berkeley Challenge Pty Ltd [2001] NSWADT 92; X v Y & anor [2000] NSWADT 122; V v Y & anor [2000] NSWADT 12; R v A & B [1999] NSWADT 151. Submissions of the parties 1. The Applicant brings a claim arising from alleged discrimination, sexual harassment and victimisation in his own workplace, the workshops of the heavy vehicle repair division of a large waste and recycling company. 2. The Applicant argues that such allegations "are of a particularly serious and injurious kind". It is also claimed that the fact that some of the alleged sexual taunting and other conduct has been done anonymously and the fact that victimisation is claimed are aggravating features. It is alleged that reprisals have been taken against the Applicant and he is in a difficult situation not knowing the identity of his tormentor or tormentors. The Applicant's submissions state that: "There is a real chance that the Applicant will be the subject of further harassment, discrimination and reprisals by colleagues and former colleagues whose identity is not known. This chance would be reduced if the Applicant's involvement in the proceedings were not apparent and details regarding his current address were not available." 1. Additionally, the Applicant argues that there is a degree of public interest in a matter involving male upon male sexual harassment. 2. The Respondent argues that there is nothing unusual about this case to place it out of the ordinary. The Respondent opposes the application for non-disclosure of the name, work and home addresses of the Applicant. 3. In support of its position the Respondent states that there has been no violence against the Applicant, there is no evidence that reprisals have been taken, that alleged victimisation does not make the matter more "serious", and that just because there may be a degree of public interest in such a matter does to mean that a suppression order is warranted. 4. The Respondent states, in part, in submissions: "the allegations made in significant part include complaints that certain co-workers either said things to him of an alleged discriminatory and/or sexual nature, or placed diagrams or physical items of a sexual nature around his workplace. None relate to threats of any kind of violence. There is no evidentiary foundation before the Tribunal for a concern about that type of conduct". Factors considered 1. In the Tribunal's view, there are several factors that mark this case out as 'special' or 'out of the ordinary' as referred to by the Appeal Panel in State of NSW (Justice Health) and anor v Dezfouli [2008] NSWADTAP at [82]. 2. Firstly, whilst the case is on-going, the Applicant must continue to work in that workplace. The Applicant cannot choose not to go to work if he wishes to retain his position, unlike a person who can choose not to visit a club or other premises for recreation if that is the place where discrimination allegedly occurred. 3. Every employer has a duty of care to provide a safe workplace for each one of its workers. Provision of a safe workplace is not only a matter of physical safety, but maintenance of an environment where a person is not harassed or taunted on sexual grounds, potentially causing extreme mental and emotional distress. 4. Secondly, in this case, the allegations are of a very personal nature, dealing with the alleged sexuality of the Applicant an sexual harrassment. 5. Thirdly, the Applicant's written submissions claim that the workplace is "a male dominated workplace where, on his case, sexual harassment is commonplace and accepted conduct". Whilst the claims remain to be proven, there is material of an explicit kind, such as drawings of erect penises, which has already been filed in the proceedings. Such material is capable of being considered to be of a sexually harassing nature. 6. Fourthly, The Tribunal accepts that the fact that some actions in the workplace have been alleged to have been done anonymously means that the mental distress associated with them could be extreme, as the Applicant does not know whether one other worker or more than one worker is involved and whether the person/persons is/are his superiors, co-workers or others. 7. Fifthly, the Applicant also claims victimisation as a result of bringing the claim. That is another matter that takes this case outside the realm of the "ordinary" although not exceptional. The Applicant states in submissions that the purpose of the application is to reduce the likelihood of further discriminatory conduct. 8. Sixthly, at this stage the Applicant has only sought a suppression order "until further order". That is a matter also taken into account in considering the application. 9. Seventhly, there is a real public interest in persons being able to bring claims to the Tribunal without fear of even more discriminatory conduct following an application. 10. Cumulatively considered, the circumstances set out above at one to seven make this case "unusual", "special" and "out of the ordinary" as referred to in in State of NSW (Justice Health) and anor v Dezfouli [2008] NSWADTAP at [82]. 11. Whilst the order sought is an incursion on the principle of "open justice" it is of lesser significance when compared with conducting a hearing in private ( see Re VC and Australian Federal Police (1985) 8 ALD 587 at [11]- [14]. 12. In all the circumstances, set out above, the Tribunal orders that until further order: 1. The Applicant is to be identified by the pseudonym 'CVV' at all times in published reasons, reports and in the proceedings generally. 2. The identity of the Applicant is not to be disclosed by the parties to these proceedings, or by any other persons and he is to be referred to as 'CVV'. 3. The work and home addresses of the Applicant shall not be disclosed by the parties or any other persons. 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 November 2016