Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZID v Green (No. 2) [2018] NSWCATAP 199 Hearing dates: On the papers Date of orders: 23 August 2018 Decision date: 23 August 2018 Jurisdiction: Appeal Panel Before: Philip Durack SC, Senior Member P Boyce, Senior Member Decision: (1) A hearing of the appellant's application for orders under s 64 of the Civil and Administrative Tribunal Act 2013 concerning publication of the reasons for decision disposing of the appeal in this matter issued to the parties on 28 February 2018 be dispensed with. (2) The existing order made on 28 February 2018 prohibiting the publication of the appellant's name in the reasons for decision of the Appeal Panel issued to the parties in this matter be continued. (3) Subject to Order 2, upon the expiry of 21 days from the date of these orders, the reasons for decision of the Appeal Panel in this matter issued to the parties on 28 February 2018 may be published on Caselaw. (4) The appellant's application for non-publication orders in respect of the reasons for decision of the Appeal Panel issued to the parties on 28 February 2018 is otherwise dismissed. Catchwords: APPEAL – residential tenancy – non-publication or anonymisation order – anonymisation order continued Legislation Cited: Civil and Administration Tribunal Act 2013 Health Records and Information Privacy Act 2002 Residential Tenancies Act 2010 Texts Cited: NCAT Policy 2 (March 2018), Publishing Reasons for Decisions. Category: Procedural and other rulings Parties: ZID (Appellant) Jamie Green and Belinda Green (Respondents) Representation: Both parties were self-represented File Number(s): AP 17/00085 Publication restriction: As set out in Order 2 above. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: n/a Date of Decision: RT 16/33997 – 22 September 2016 RT 16/29905 – 19 December 2016 Before: RT 16/33997 – M Gilson, General MemberRT 16/29905 – R Harris, General Member File Number(s): RT 16/3997 and RT 16/29905 REASONS FOR DECISION Overview 1. After the hearing of the appeal in this matter, but before the decision on the appeal was issued to the parties on 28 February 2018, the appellant applied for a non-publication order of the reasons for decision, alternatively that her name be anonymised. 2. This is a residential tenancy matter which included claims by the appellant (the tenant) for relief founded upon her contention that the agreement under which she occupied "a granny flat" at the respondent's premises in New South Wales was illegal. 3. Her appeal in relation to these claims was dismissed. On 28 February 2018 reasons for decision dismissing the appeal were provided to the parties but were not published pending a determination of the appellant's application about non-publication. 4. For the reasons set out below, we have decided that the above reasons for decision of the Appeal Panel may be published but with the appellant's name anonymised. Appellant's privacy concerns and submissions 1. After the hearing of the appeal, by letter dated 19 December 2017, the appellant wrote to the Principal Registrar of the Tribunal in the following terms: I am the Appellant and refer to the above case last heard in Sydney on 22 November 2017. I await the Appeal Panel's Decision. Due to the confidential nature of the medical and other personal and private information I have of necessity been required to disclose during the course of the lower cases and at Appeal in the Sydney Registry I write to request a Section 64 Order for non-publication or Appellant anonymization. I was contacted in late 2016 by telephone by the Newcastle Registry to confirm non-publication of the lower Tribunal cases (upon an earlier written request for same). I am yet to receive written confirmation of this from the Newcastle Registry. Would the Principal Registrar of the Sydney Registry please advise as soon as convenient. Please contact me should you require any further information. 1. Subsequently, the reasons for decision disposing of the appeal were sent to the parties with the appellant's name anonymised and the reasons were not then published. Accompanying the reasons sent to the parties was a letter from the Tribunal inviting written submissions on the non-publication questions. 2. In response, by letter to the Principal Registrar dated 17 April 2018, the appellant said: I refer to 16 April 2018 correspondence received from Ms K McNamara, Appeals Registry, Sydney, regarding the above judgment. I spoke with Ms McNamara on 16 April by telephone and we discussed the following: • Anonymisation of my name and identifying details does not interfere with the administration of justice in NSW. • I was able to confirm on 16 April 2018 with Ms McNamara that no objection to non-publication or anonymisation has been made by the other party. • Ms Vikki Hardwick, Divisional Registrar, Newcastle Registry, granted s 64 non-publication over the lower Tribunal proceedings. I refer to "NCAT Policy 2 (March 2018), Publishing Reasons for Decisions … Appeal Panel" at paragraph 29. • Please refer to the reasons set out in my 15 December 2016 correspondence with the Divisional Registrar and in my 19 December 2017 correspondence with the Sydney Registry seeking s 64 non-publication / anonymization. I reiterate that I am seeking employment that publication or publication without anonymization would nullify. Given that I have been denied relief, my situation is jeopardised enough without further impediment being applied. I add a reason for non-publication of the Decision which is that in my opinion: • It is a Decision that if published will encourage illegal building and illegal premises in NSW resulting in the injury or death of a tenant. Please contact me to the above email address [email address] should you require any further information. No objection to the orders sought by the appellant has been expressed by the respondent. 1. In relation to the appellant's reference to non-publication of the decisions at first instance, the Newcastle Registry file indicates that no non-publication orders were made. The file reveals that the appellant, by letter dated 15 December 2017, applied for orders under s 64 of the Civil and Administrative Tribunal Act (the NCAT Act) prohibiting the disclosure of her name and the publication of any information, including medical information, that might identify her. It appears that the appellant was informed that the decisions which had been supplied to the parties had not been published on Caselaw and that there was no intention to publish the decisions in the future. Dispensing with a hearing 1. Having afforded the parties an opportunity to make submissions on the point, we have decided that a hearing of the appellant's application for non-publication orders should be dispensed with: see s 50(2) and (3) of the NCAT Act. No party objected to the application being decided on the papers. Consideration 1. We bear in mind the following facts and matters: 1. The hearing of the appeal was conducted in public and without any restriction on the publication of the names of persons involved or material produced to the Appeal Panel. No application for any such publication restriction was sought at or before the hearing of the appeal. 2. The reasons for the two decisions appealed from were made available to the parties but were not published on Caselaw. Reasons for decision of the Tribunal in the Consumer and Commercial Division are not usually published. 3. The Tribunal's policy concerning the present application (Policy 2, March 2018) includes that: 11. Because of the diversity of the jurisdictions exercised by the Divisions and the Appeal Panel, each of them takes a somewhat different approach to the publication of decisions. These different approaches are set out below… 18. The Consumer and Commercial Division does not, in addition to making the reasons available to the parties, routinely publish its written reasons for decision. Not the least reason for this is the very large number of decisions made in the Division. Nonetheless, a selection of the Division's reasons for decision is published. …. 28. The usual practice of the Appeal Panel is to publish its written reasons for decision, unless the presiding Member has made an order prohibiting or restricting publication. These decisions can be viewed on the Caselaw website. 29. The restrictions and prohibitions on publication which applied in the Division in which the original decision was made will generally be continued in any relevant reasons for decision of the Appeal Panel in relation to that decision… …. 34. Except in Guardianship Division matters or where an order has been made under s 64 of the Act restricting publication or where there is some other legislative restriction on publication, the names of parties and witnesses are not usually considered to be private and may be referred to in published decisions. In matters in the Administrative and Equal Opportunity Division, Consumer and Commercial Division, Occupational Divisions and the Appeal Panel, parties' names are also generally published on the Tribunal hearing lists… …. 36. If a party, witness or other person involved in proceedings has privacy concerns regarding information which may be publicly disclosed by the Tribunal, that person should immediately raise those concerns with the Tribunal and, where appropriate, make an application for an order under s 64 of the Act to prohibit the publication of the private or confidential information. 37. Where possible, such an application or any request to have information anonymised should be in writing and supported by evidence as to why the information is private or confidential and why it should not be disclosed. 38. Such applications and requests should be made: (a) if during a hearing, to the Member presiding at the hearing, or (b) otherwise to the Principal Registrar: (i) by email to ncatenquiries@ncat.nsw.gov.au (with Attention: Principal Registrar in subject line), or (ii) by letter posted to the following address: The Principal Registrar Civil and Administrative Tribunal of New South Wales Level 9 John Maddison Tower 86-90 Goulburn Street SYDNEY NSW 2000. 1. The reasons for decision disposing of this appeal do contain some references to matters that would fall within the definition of "health information" as defined by the Health Records and Information Privacy Act 2002. 1. Section 64 of the Civil and Administrative Tribunal Act 2013 is in the following terms: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. We see no basis for restricting publication of the reasons for decision other than that the appellant's name continues to be anonymised. 2. The subject matter of the appeal was the tenancy of a "granny flat" involving issues arising out of the application of the Residential Tenancies Act 2010 and the law of contract and leases. No issues or matters of confidentiality or privacy arose of the kind that might warrant a complete prohibition on the publication of reasons. 3. On the other hand, fundamental considerations as to transparency, accountability and guidance in respect of Tribunal decision making, as referred to in NCAT Policy 2, are powerful factors in favour of publication. Those considerations are referred to in paragraph 7 of that policy as follows: 7. As well as making its reasons for decision available to the parties, the Tribunal also publishes some of its reasons for decision. This is done for numerous reasons including: (a) to ensure that the Tribunal is accountable and has processes that are open and transparent: s 3(f) of the Act; (b) to promote public confidence in tribunal decision-making: s 3(g) of the Act; and (c) to educate and provide guidance to litigants and legal practitioners in relation to principles, procedures and practices applicable to matters within the Tribunal's jurisdiction. 1. With respect to paragraph 7(c) of the policy, we note that the reasons for decision disposing of the appeal include an analysis of an important issue concerning the illegality of the "granny flat" and the impact of such illegality upon the tenancy and upon some of the claims for relief made in the proceedings. The conclusions of the Appeal Panel in respect of this issue included that the illegality did not result in the tenancy agreement being void and a rejection of the tenant's claim for a refund of the rent paid. 2. In the circumstances, we do not accept the appellant's submissions in so far as they sought a complete restriction on the publication of the reasons. 3. As to the continuation of the anonymisation of the appellant's name, with some hesitation, we nevertheless, think this should be continued for the following reasons: 1. As we have mentioned, there are some references in the reasons to health information, albeit that the appellant has not been specific about the particular information she is concerned about. Nevertheless, the appellant has expressed a general concern about a reference to medical information. 2. A non- publication order in respect of such material alone (rather than the reasons as a whole) has not been mentioned by the appellant and has the disadvantage of interfering to some extent with a full understanding of the reasons. 3. In this case anonymisation will have no impact on the guidance value of the reasons and would appear not to have any real impact upon the considerations of transparency and accountability. 4. The making of such an order is not opposed by the respondent. Orders 1. For the above reasons, we make the following orders: 1. A hearing of the appellant's application for orders under s 64 of the Civil and Administrative Tribunal Act 2013 concerning publication of the reasons for decision disposing of the appeal in this matter issued to the parties on 28 February 2018 be dispensed with. 2. The existing order made on 28 February 2018 prohibiting the publication of the appellant's name in the reasons for decision of the Appeal Panel issued to the parties in this matter made on 28 February 2018 be continued. 3. Subject to Order 2, upon the expiry of 21 days from the date of these orders, the reasons for decision of the Appeal Panel in this matter issued to the parties on 28 February 2018 may be published on Caselaw. 4. The appellant's application for non-publication orders in respect of the reasons for decision of the Appeal Panel issued to the parties on 28 February 2018 is otherwise dismissed. 1. The time requirement set out in the order made in paragraph 18(3) above is made with a view to the possibility that the appellant may wish to exercise such appeal rights as she may have in respect of these orders. ******** 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 August 2018