Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 Hearing dates: 14 September 2018 Date of orders: 18 September 2018 Decision date: 18 September 2018 Jurisdiction: Appeal Panel Before: The Hon J Boland ADCJ Deputy President The Hon F Marks Principal Member Decision: Application to suppress publication of Decision dismissed Catchwords: Application to suppress publication of Decision -principles and statutory basis - held case not made out - application dismissed Legislation Cited: Civil and Administrative Tribunal Act Court Suppression and Non-Publication Orders Act 2010 (NSW) Cases Cited: Adriana Kostov v Nationwide News Pty Limited [2018] NSWSC 1289 (16 August 2018) Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 Health Care Complaint Commission v Vo [2014] NSWCATOD 127 Kostov v Gibson [2018] NSWSC 428 (6 April 2018) Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 (8 June 2018) Kostov v State of New South Wales [2018] NSWSC 1252 (10 August 2018) Kostov v Zhang (No 2) [2016] NSWCA 279 (14 October 2016) Kostov v Zhang (No 3) [2018] NSWCA 83 (26 April 2018) Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7 (2 February 2017) Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 2) [2017] NSWDC 18 (16 February 2017) Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 3) [2017] NSWDC 89 (1 May 2017) Category: Consequential orders (other than Costs) Parties: Adriana Kostov (Applicant) Ecclesia Housing Limited (Respondent) Representation: Applicant in person File Number(s): AP 18/28381 Publication restriction: Nil reasons for decision on applicAtion to suppress publication of decision Background 1. In proceedings AP 18/33325 the applicant Adriana Kostov sought to set aside a Decision of an Appeal Panel which had dismissed an appeal that she had brought from a decision which, effectively, terminated a residential tenancy of which she was the tenant and her landlord was the respondent Ecclesia Housing Limited. We heard that application on 3 September 2018. On 13 September 2018 the applicant was informed by the Tribunal that our decision determining her application and reasons therefor would be published on 14 September 2018. 2. On 13 September 2018 the applicant filed an Application seeking, in effect, suppression of our decision. The grounds set out in the Application seeking suppression of our decision are that: 1. she has been unwell for 2 years living in a refuge 2. she was not at the hearing at which the decision the subject of her application before us was made 3. the matter has made her ill 4. she has been subjected to ridicule about her private life, she has been through "a very hard two years and wish to get my life back on track" and "it is unfair and prejudicial to my life, and career." 1. We conducted an urgent telephone hearing at 11.10 AM on 14 September 2018. The applicant participated. The respondent's representative was unable to be available. 2. For the purpose of the hearing the applicant forwarded to us electronically a number of documents upon which she sought to rely. In summary, these included evidence that; 1. the applicant had graduated with a Bachelor of Laws degree from an Australian University in 2005. 2. the applicant had achieved prominence in commerce and had been appointed Regional Director – Australia for an organisation which represented an investment business sector in Australia, such evidence relating to her achievements in 2013 and 2014. 3. the applicant had suffered from a number of medical conditions in 2016 and 2017. 4. from March 2017 to at least 5 May 2017 the applicant had been afforded special accommodation through case management support, because she was either homeless or at risk of homelessness. 5. she had attended a hospital on 15 March 2018. 6. an order had been made in her favour on 11 July 2017 by a Judge of the Supreme Court of NSW prohibiting the publication or other disclosure of certain information given in certain proceedings with respect to consultations with medical practitioners and the contents of medical reports which had been tendered or made available in the course of those proceedings. 1. In the course of her oral submissions the applicant explained that she had achieved recognition and status in her chosen field, but had unfortunately fallen ill, and as a result, her life had fallen apart. She said that she was now getting her life back in order, and wanted to suppress publication of our decision to avoid any adverse publicity about her, and to enhance her recovery. 2. The applicant elaborated on some of these matters in an email communication received after the hearing had been terminated, when we endeavoured to telephone her after a short adjournment. In that email the applicant said that she had been unable to take our call because her supervisor was present. In that email the applicant asked that if we did not suppress the decision, that we suppress her name and use a pseudonym. In support, the applicant said that she had become seriously ill, had become homeless, had been precluded from working, and had been "kicked out like an animal" from the women's refuge even though she had paid her rent fortnightly. These incidents had seriously affected her "character, integrity, my reputation, my health, my life." She said that she did not want anyone to know that she had become ill, and that she deserved respect. 3. The applicant said further in her email that her medical "information" was relevant because she had been compelled to take refuge in a property, which we assume is the property from which she was evicted for non-payment of rent, which matter is the subject of the substantive proceedings about which the applicant seeks a non-publication order. The applicant asserted that the thought of publication was making her "sick again" and that there was no public interest in her story being revealed by publication of our reasons for decision. Furthermore, she submitted that protecting her health and her privacy far outweighed any public benefit in publishing our decision. The statutory basis for the making of a suppression order and relevant principles 1. The power of this Tribunal to restrict publication of material concerning proceedings is set out in section 64 of the Civil and Administrative Tribunal Act, ("the Act") which 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. However, section 64 must be read in context of the overall requirement that the proceedings of this Tribunal be conducted in public. Section 49 of the Act provides: 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. (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. In New South Wales there is a system of open justice. From time to time reports of decisions of courts and tribunals reveal circumstances pertaining to parties in proceedings of a personal nature, and some of which deal with a whole range of difficult circumstances. Whilst it is unfortunate that details of this kind are revealed in this way, this is a necessary concomitant of open justice. 2. There are many cases in this Tribunal where non-publication orders have been made under section 64 of the Act, but they are principally directed to ensuring confidentiality with respect to disciplinary proceedings taken against health practitioners or legal practitioners and concern the names and details of persons who are their patients or clients as well as the families of those patients and clients. It is rare indeed that the name of a practitioner against whom disciplinary proceedings are taken will be suppressed. See for example, Health Care Complaint Commission v Vo [2014] NSWCATOD 127. Of course, the circumstances of such proceedings are significantly different from those which apply to these proceedings. 3. Some guidance as to some of the matters that might be relevant in determining whether to exercise discretion under 64 may be obtained from the provisions of the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("the Court Suppression Act") which permits courts to make suppression and non-publication orders in certain circumstances in addition to any inherent or other statutory jurisdiction to do so. Section 8 of that Act sets out a number of matters to assist a court in determining whether to make a suppression or non-publication order. The provisions of section 8 are as follows; Grounds for making an order 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. (3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances. 1. The provisions of this legislation were considered by the NSW Court of Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125. Basten JA (Bathurst CJ and Whealy JA agreeing) at [51] distinguished between material having no connection with the issues in proceedings and those which were necessary for the disposition of those proceedings. His Honour said; It is therefore desirable to distinguish between two kinds of constraint referred to above, namely constraints on publication of material disclosed in court proceedings and publication of material having no connection with court proceedings except its capacity to affect current or future proceedings. Because the orders in the present case do not fall within the first category they do not involve any constraint upon the principle of open justice; they do not impinge in any way on the rights of the applicants to publish what may happen at the trial. Rather they are limited to the pre-trial (and on-going) publication of material having a tendency to interfere with the fairness of the anticipated trial. An order designed to protect the proper administration of justice, without impinging upon the principle of open justice, may well be considered necessary so long as it is reasonably appropriate and adapted to achieve its perceived purpose: compare Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and Thomas at [102] (Gummow and Crennan JJ). On this approach, the reasoning of McHugh JA in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477, referred to by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21] and by this Court in Reinhart at [29], is not determinative in the present case. (footnotes omitted) Consideration 1. If we were to accede to the application made by the applicant, it would be necessary for us to determine that her personal circumstances are such that they outweigh the importance of the basic principle of open justice. 2. The thrust of the applicant's case is directed to the adverse effect that publication of the relevant details will have on her health, reputation and well-being. One of the difficulties in considering her application is that there is simply no evidence beyond her bare assertion concerning the nature and extent of any underlying medical condition and the likely adverse impact upon that condition of the consequences of publication of the substantive decision. None of the medical evidence put before us for the purpose of this application is recent save for one certificate dated 15 March 2018 which contains the words "medical R/V". That certificate issued by an emergency Department is decidedly unhelpful in providing any proper basis for acceding to this application. 3. Some of the medical certificates which the applicant has put before us for the purpose of this Application specifically declined to nominate any condition from which she might have been suffering. The only clues are those provided by an attendance certificate issued from an outpatient Department of a public hospital on 1 March 2017 signed by a Dermatology Registrar and a letter from a psychiatrist dated 7 March 2017 noting that the applicant had attended the previous day for a psychiatric assessment. None of this material provides any basis of any kind to enable us to find corroboration of the assertions made by the applicant that, in some way, publication of our reasons for decision determining her set-aside application will have any adverse impact upon her health or well-being. It seems to us that the highest we can put the applicant's case is that she would feel discomfited and extremely upset by having any personal details of any kind revealed publicly. 4. In the same way, the applicant did not put before us any material of any kind that would allow us to consider any adverse impact upon her reputation of the publication of our decision on her set-aside application. 5. Reactions of the kind which concern the applicant are part and parcel of the consequences of becoming involved in litigation. Daily recourse to the popular media is an example of this, although one might not expect the circumstances pertaining to the applicant's proceedings before this Tribunal would attract the same attention as, say, an adverse defamation award against a high-profile radio personality. Apprehension concerning any publicity which might arise is a matter of speculation. Without any underlying corroborative evidence it does not qualify as a reason to apply the provisions of section 64 of the Act to the circumstances of this applicant. 6. Nor can it be suggested that there is material which was the subject of the set-aside order brought by the applicant with which we are dealing which would have no connection with those proceedings, as referred to in Fairfax Digital Australia above. 7. Furthermore, there is nothing in the circumstances of the applicant as known to us for the purpose of these proceedings and which will be revealed publicly on publication of our decision and the reasons therefor that would fall within the description of confidential information rendering it desirable that publication of our decision or any of its contents be restricted. 8. None of the grounds relied upon by the applicant would support a conclusion favouring a restriction on publication. Whilst the applicant's circumstances as asserted by her, but not proven in any sense by corroborative or any evidence, are unfortunate they do not attract the confidentiality in the circumstances of these proceedings which would militate towards the issue of a non-publication order. 9. We endeavoured to locate the reference to the Supreme Court proceedings in which the applicant asserted that a non-publication order had been made in her favour. We were unable to locate any record of the publication of those proceedings on NSW Caselaw, but there is a record of the publication of nine judgments in the Supreme and District Courts of NSW in which the applicant was a plaintiff or applicant. They are; Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7 (2 February 2017) Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 2) [2017] NSWDC 18 (16 February 2017) Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 3) [2017] NSWDC 89 (1 May 2017) Kostov v Gibson [2018] NSWSC 428 (6 April 2018) Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 (8 June 2018) Kostov v Zhang (No 2) [2016] NSWCA 279 (14 October 2016) Kostov v Zhang (No 3) [2018] NSWCA 83 (26 April 2018) Kostov v State of New South Wales [2018] NSWSC 1252 (10 August 2018) Adriana Kostov v Nationwide News Pty Limited [2018] NSWSC 1289 (16 August 2018) 1. It will be seen that some of these decisions were published in April, June and August 2018. We note, without descending to a discussion of the subject matter of those proceedings that they involve circumstances personal to the applicant. One might have thought that it is possible that the publication of those personal circumstances could arguably have had some impact upon the applicant's well-being, reputation and health of the kind that she has claimed for the purpose of these proceedings. This is particularly so having regard to the recency of the publication of those judgements. If the applicant had genuinely sought to persuade us that the publication of our decision on her set-aside application in September 2018 would have the consequences which she now asserts, it would have been beholden on her to disclose to us the other publications which we have set out above, and seek to establish that they had no consequences for her health, reputation or well-being either considered alone or in conjunction with the factual circumstances pertaining to the underlying substantive proceedings with which we are dealing. 2. Furthermore, there are compelling reasons why our decision and our reasons should be published. As will be seen from our decision when published, the respondent has had the benefit of an eviction order against the applicant for a considerable period of time based on non-payment of rent and a warrant for possession has been executed by the Sheriff. The respondent is a not-for-profit charity which makes accommodation available as part of a women's refuge. Despite the warrant for eviction having been executed by the Sheriff, we have been told by the respondent that the applicant has refused to uplift her personal belongings from the premises and has threatened court proceedings against the respondent if anyone touches her personal effects. This information was also confirmed to us by the applicant in the course of the hearing of her set aside application before us. For reasons which we do not understand, the respondent has refrained from taking action available to it to have the applicant's personal effects removed pending the outcome of two unsuccessful proceedings taken by the applicant to have the eviction order set aside and pending the outcome of these proceedings. Publication of our decision will assist the respondent in bringing this sad episode to a conclusion, and to enable it to use the subject premises for the assistance of a woman in need. These reasons constitute a positive basis for ensuring publication of our decision, and another reason why the suppression application brought by the applicant must be refused. Conclusion 1. We conclude that the applicant has failed to make out a case for the exercise of discretion in her favour to suppress publication of the set-aside decision, and that there are positive reasons in the public interest why publication should occur. Accordingly, we propose to dismiss this application and it follows that there is no impediment to the publication of our decision dealing with the set-aside application. Order 1. Application to suppress publication of Decision dismissed ********** 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 Amendments 19 September 2018 - [7] - Amended 'substantial' to 'substantive' 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: 19 September 2018