Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kostov v Ecclesia Housing Limited (No 4) [2018] NSWCATAP 241 Hearing dates: On the papers Date of orders: 09 October 2018 Decision date: 09 October 2018 Jurisdiction: Appeal Panel Before: Malcolm Schyvens, Deputy President David Goldstein, Senior Member Decision: Application to restrict publication of decision dismissed Catchwords: APPEAL - Application to restrict publication of decision – principle of open justice – no evidence of confidentiality provided – information sought to be restricted in the public domain – held case not made out – application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 49(1), 50(2), 64 Cases Cited: Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 2) (2006) 155 FCR 216 Hogan v Australian Crime Commission (2010) 240 CLR 651 Kostov v Ecclesia Housing Limited (No 2) [2018] NSWCATAP 215 Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 Russell v Russell (1976) 134 CLR 495 Texts Cited: G E Dal Pont, Law of Confidentiality, (1st ed 2015, LexisNexis Butterworths) Category: Consequential orders (other than Costs) Parties: Adriana Kostov (Applicant) Ecclesia Housing Limited (Respondent) Representation: Nil File Number(s): AP 18/28381 Publication restriction: Nil reasons for decision Background 1. On 5 June 2018, a Senior Member of the Consumer and Commercial Division of the Tribunal ("the Division") dismissed an application by Adriana Kostov (matter SH 18/24878) to set aside the decision of that Division of 21 May 2018 relating to a residential tenancy agreement between Adriana Kostov (the applicant in these proceedings) and Ecclesia Housing Limited (the respondent in these proceedings) (matter SH 18/21198). 2. The orders of the Division that the applicant sought to have set aside were that: the residential tenancy agreement between the applicant (as tenant) and the respondent (as landlord) was terminated due to the applicant's failure to pay rent; that possession of the premises was given to the landlord; and that the applicant pay the respondent the sum of $1,745.54 for unpaid rent. 3. The applicant commenced appeal proceedings in the Tribunal (AP 18/28381), lodging a Notice of Appeal challenging the Division's decision of 5 June 2018 dismissing her request for the orders of 21 May 2018 to be set aside. 4. The appeal proceedings were heard before us on 26 July 2018. Upon the conclusion of the hearing we ordered that the appeal be dismissed and advised that we would proceed to provide written reasons. 5. The Tribunal's registry informed the applicant and the respondent by email on 15 August 2018 that the reasons for our orders of 26 July 2018 would be available by publication to Caselaw the next business day. Shortly after the registry sent the email on 15 August 2018, the applicant sent an email in reply requesting that the reasons not be published. We have decided not to grant the applicant's request and now provide our reasons for that decision. Application, Directions and Submissions 1. The relevant sections of the applicant's email to the Tribunal registry of 15 August 2018 stated: Please do not publish this decision, please, my reasons for being in the refuge, are private, and related to supressed health and other matters, please, do not publish. 1. The applicant's email request was provided to us and we then proceeded on 16 August 2018 to issue the following directions and notations to both the applicant and the respondent: The Appeal Panel: 1. Notes the email communication to the Registry of 15 Aug 2018 from the appellant requesting that the reasons for decision for the orders of 26 July 2018 in AP 18/2831 ("the reasons") not be published (annexed). 2. Directs: a. the Registry to provide the reasons to the parties, the Office of the Legal Services Commissioner of New South Wales and the Western Australian Legal Practice Board, but not publish the reasons on NSW Caselaw; b. any party who wishes to request confidentiality orders in relation to the publication of the reasons under s 64 of the Civil and Administrative Tribunal Act 2013 is to file such application on or before 23 August 2018 together with submissions in support of the application and on the same day provide the application and submissions as filed to the other party; c. if a party files an application for confidentiality orders then the other party has a further seven (7) days from the date of filing of the application to provide a reply to the application and any submissions in support to the Tribunal and to the applicant party; d. if an application for confidentiality orders is filed with the Tribunal then the Appeal Panel will dispense with the need for a hearing and proceed to determine the matter on the papers unless a party submits that a hearing is required; and e. if no party files an application for confidentiality orders with the Tribunal on or before 23 August 2018 then the Registry is directed to publish the reasons on NSW Caselaw on 24 August 2018. 1. Following receipt of our reasons, the applicant forwarded a further email to the Tribunal Registry on 24 August 2018 as follows: Attn: Registrar- AP 18/28381 - Kostov vs Ecclesia Housing Limited (Request for Confidentiality) I refer to the confidentiality request. I respectfully request such, as, as noted to you, I have had severe illness, since being locked out of the premises, on 1st June 2018, of which, the Appeal is being heard on 3rd September 2018. During this time, I also had to endure the horror of ADVO proceedings, with no support, and became severely unwell, as a result, per the attached. Further, the judgment makes reference to me working as a lawyer, which is false. Further, the judgment makes reference to me reportedly not paying rent and doing the wrong things, which, I have submitted, is entirely false. I respectfully submit, that there is no public interest, in this horrific period of my life, in which, damage, has been caused by the Respondents. I am not sure, how one is meant to function, like a human being, being locked out, with no belongings. It is a highly proposal matte (sic), of which, I turned to an organization for support, they failed me, and I became unwell as a result, and should not be punished for such. I am finally getting my life back on track, after a very hard two years, and I do not deserve, to be publicly shamed for such. I submit, the decision, should not be published given the sensitivities above, particularly, now that the appeal is being heard 3 September 2018. 1. No submissions were received from the respondent. 2. As neither the applicant nor the respondent requested a hearing to determine the application, we proceeded to determine the matter on the papers as permitted: s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). 3. We proceeded on the basis that the applicant's email of 24 August 2018 amounted to an application for an order to restrict publication of our reasons and, whilst submitted one day late given the terms of our directions, as there was no objection on the part of the respondent, we accepted the application nonetheless. 4. As outlined below, the applicant made a further application to the Tribunal that our orders dismissing her appeal be set aside. We decided it was appropriate to delay our determination of the application for confidentiality orders until after the set aside application had been determined as the outcome would be a relevant consideration to our decision. The Intervening Set Aside Application and Request for Suppression Orders 1. The applicant filed further proceedings in the Tribunal on 27 July 2018 requesting that the Appeal Panel set aside or vary the orders we made on 26 July 2018 dismissing her appeal. 2. A differently constituted Appeal Panel conducted a hearing on 3 September 2018 to determine the application and reserved their decision. 3. The application was dismissed and the Appeal Panel's reasons were issued on 14 September 2018 (see: Kostov v Ecclesia Housing Limited (No 2) [2018] NSWCATAP 215). 4. As was the case in the proceedings before us, upon receipt of notification that the Appeal Panel's reasons were soon to be published, the applicant requested that they not be published. The Appeal Panel dismissed that application and published their reasons for doing so on 18 September 2018 (see: Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221). 5. Consideration 6. The concept of "open justice", that is, the requirement that proceedings be conducted publicly and in open view (Russell v Russell (1976) 134 CLR 495 at 520) is the starting point in all matters before the Tribunal. This principle is enshrined in the Act, confirming that all hearings of the Tribunal are open to the public unless the Tribunal orders otherwise: s 49(1). 7. The applicant did not request that we make orders closing the hearing but subsequent to the hearing requested that the reasons for decision emanating from that hearing should not be published. We understand her application to be for us to make orders under s 64 of the Act which provides: 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. The ability to make an order restricting the disclosure under a statutory provision is largely reflective of the inherent powers of the courts to make such orders (for example, See Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 2) (2006) 155 FCR 216 at [29]). 2. An applicant must overcome a relatively high bar in seeking orders that due to the confidential or private nature of information before the Tribunal that it should divert from the normal course in allowing the principle of open justice to prevail. An applicant for such orders must provide evidence as to how release of the information in question will have an adverse impact on them (or others) to the extent as to warrant orders and cannot simply make assertions as to possible adverse impacts (see: Hogan v Australian Crime Commission (2010) 240 CLR 651). 3. The nature of this relatively high bar is perhaps suitability illustrated by Professor Gino Dal Pont who states in his text Law of Confidentiality, (1st ed 2015, LexisNexis Butterworths): Concepts of privacy and confidentiality are accordingly the antithesis of the open justice principle. Privacy of the litigating parties is necessarily sacrificed by permitting anyone to attend an adjudicative stage of the proceedings. Allowing those present to communicate and publish what they have thereby witnesses means that confidentiality is likewise prejudiced. The policies underscoring the "open justice" principle dictate that loss of privacy and confidentiality is a price litigating parties must ordinarily pay. 1. An obvious consideration in determining requests to restrict disclosure due to confidentiality is to determine whether the information sought to be restricted is truly confidential, that is, is not already in the public domain (see: Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 2) (2006) 155 FCR 216 at [35]–[39]). 2. From the emails received from the applicant (reproduced at [6] and [8] above), we understand her grounds in support of orders being made under s 64 of the Act are that the reasons for decision: reveal that she had been living in a "refuge"; falsely describe her as working as a lawyer; and describe her as not paying rent and "doing the wrong things" (sic), which she submits is false. We will examine each of these grounds in turn. 3. First, the applicant asserts that publication of the reasons for decision would reveal that she had been living in a "refuge". The applicant provided no evidence to us to support a conclusion that the accommodation provided by the respondent could be described in this way or how the public would form such a view of the accommodation. The reasons provide no description of the nature of the accommodation the subject of the residential tenancy agreement between the applicant and the respondent. We reject this ground of the application as there was no evidence put to us as to how publication of the reasons would result in the revelation claimed by the applicant. 4. Second, the applicant submits that the reasons falsely describe her as working as a lawyer. We have assumed that this submission refers to the following paragraphs of the reasons: Conduct of the appellant 67 Statements made by the appellant during the brief period she was in the court room at the commencement of the appeal hearing suggested that she was employed by a legal practice. 68 We have ascertained that the appellant is admitted as a solicitor in New South Wales and Western Australia. We consider that in light of the appellant's conduct as referred to in paragraph [3], the appropriate course to take is to request the Principal Registrar of the Tribunal to refer the appellant's conduct to the Office of the Legal Services Commissioner of New South Wales and the Western Australian Legal Practice Board for them to take whatever action they may consider appropriate, if any. 1. For completeness, we note that the preceding paragraphs of the reasons related to the applicant's conduct as recorded earlier in our reasons: 3 Although having requested leave to appear by telephone, the appellant appeared in person at the commencement of the appeal hearing where she immediately proceeded to make adverse comments about the respondent's conduct, threw plastic cups at the respondent, threw the water from a jug on the bar table over the respondent, and finally threw the empty jug at him. The appellant then left the courtroom obviously deciding not to take any further part in the appeal proceedings. 1. Contrary to the applicant's submission, the reasons do not state that she was "working as a lawyer". The reasons record the applicant's own statement prior to leaving the hearing that she worked at a law firm. It was unclear to us in what capacity she may be employed. The basis for this submission is flawed and cannot form the basis of any claim for orders contrary to the principles of open justice. 2. Third, the applicant submitted that restriction orders were warranted on the basis that the reasons falsely describe her as not paying rent and "doing the wrong things" (sic). It was unclear to us what "doing the wrong things" referred to and make no further comment on this. The matter of non-payment of rent on the part of the applicant was a finding of fact made by the Division after the conduct of the initial hearing of 21 May 2018. We did not disturb that finding following hearing of the applicant's appeal. To suggest that a finding of fact (as distinct from the evidence relied upon to make such a finding) should be the source of an order restricting publication is an incorrect application of the principles upon which open justice may be countermanded and we reject this submission. 3. The general tenor of the applicant's position is that she has faced difficult circumstances in recent times, information of which should not be permitted to enter the public domain, and that if such were to occur it would exacerbate her difficulties. 4. The Appeal Panel's reasons in Kostov v Ecclesia Housing Limited (No 3) outlines in detail the applicant's submissions in support of suppression orders in that matter (see [2]–[7]). These submissions, recorded in the now published reasons, have seemingly resulted in information the applicant seeks to have restricted in the proceedings before us to have already entered the public domain. 5. We have rejected the applicant's request for orders restricting publication of our reasons primarily on the basis of her failure to provide evidence to us to substantiate her claims for confidentiality. However, we note that even if evidence had been provided to us in support of the applicant's position, it would be highly improbable that we would have proceeded to make the orders sought as it would seem to us that the very information the applicant seeks to have treated as confidential is now in the public domain. 6. Orders 1. The application of Adriana Kostov (the applicant) requesting orders restricting publication of the reasons for the Appeal Panel's decision of 26 July 2018 in AP 18/28381 is 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 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: 09 October 2018