Dasari v Commissioner of Police, NSW Police Force (No 2)

[2024] NSWCATAD 101

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dasari v Commissioner of Police, NSW Police Force (No 2) [2024] NSWCATAD 101

Hearing dates:

31 January 2024

Date of orders:

15 April 2024

Decision date:

15 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) I dispense with a hearing under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application for non-publication orders is refused.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – whether the Tribunal should exercise a discretion to make non-publication orders that were not sought prior to the determination of the application for administrative review

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Carroll v Tokdogan [2015] NSWCATAD 200

DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92

Howard v Department of Communities and Justice -Housing (No. 2) [2023] NSWCATAD 185

John Fairfax Group Pty Ltd v Local Court of New South Wales (1987) 26 NSWLR 131

Ritson v Commissioner of Police [2022] NSWCATAP 223

Ritson v Commissioner of Police (No 2) [2022] NSWCATAD 89

Sethi v New South Wales Crime Commission [2024] NSWCATAD 21

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

Dr Lavanya Dasari (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-Represented)
Sparke Helmore (Respondent)

File Number(s):

2023/00336852

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. On 14 February 2024, the Tribunal published its decision in Dasari v Commissioner of Police, NSW Police Force [2024] NSWCATAD 37, which was a determination of an application for administrative review of a decision made by the respondent under the terms of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).

2. On 14 February 2024, the respondent sent an email to the Tribunal which stated, relevantly:

We urgently and respectfully request that the Tribunal consider amending the publication status of certain paragraphs that were published in the decision today. The respondent’s request is on the basis that the below paragraphs contain material which was part of the confidential evidence in this matter and its publication is contrary to s 107…

3. This email was authored by Ms Plumb, a Lawyer who is employed in the Adelaide Offices of Sparke Helmore Solicitors. However, Ms Plumb did not appear for the respondent during the course of the administrative review proceedings and she was not the author the submissions that the respondent relied upon during those proceedings.

4. I was not clear from the email whether it had been sent to the applicant. Therefore, Principal Member Simon:

1. ordered the respondent file and serve any submissions and documents relied upon in relation to the application for non-publication by 29 February 2024. These documents were to include: (a) written submissions identifying the non-publication orders sought, including any parts of the reasons for the decision over which the applicant is seeking non-publication orders; and (b) the basis for the non-publication request.

2. ordered the applicant to file and serve any submissions and supporting documents in response to the application for non-publication by 14 March 2024.

3. The parties were also directed to file and serve written submissions as to whether a hearing of the application for non-publication orders could be dispensed with under s 50 of the NCAT Act.

5. The respondent subsequently sought an extension of time to comply with the directions.

6. On 1 March 2024, the applicant objected to an extension of time being granted to the respondent and she stated, relevantly:

…I did not receive any copy of the decision by an email or by the post. It was only published on the NSW Caselaw website.

The records have been removed from the caselaw website on 20 Feb 2024, even before I could download a copy of the decision.

The decision was removed without any court order, it was just removed on the respondent’s request.

I do not have a copy of the decision to respond to this court. So fat, I have no right to get information regarding my case findings or defend myself in the end to end appeal process.

As an applicant, I have not been given the right to defend myself for this order, since no data is being shared with me.

The current request from Respondent for not publishing the NCAT decision affirms my belief that the NSW Police has major gaps in the investigation and respondent is going to extreme limits to hide the case details.

All along investigation and appeal process, my rights as a victim have been violated. I am now forced to seeking justice from the higher court.

7. However, the applicant did not otherwise respond to the application.

Dispensing with a hearing

8. Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides:

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except –

… (c) if the Tribunal makes an order under this section dispensing with a hearing, …

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal must not make an order dispensing with a hearing unless the Tribunal has first –

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal; in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

9. Section 36 of the NCAT Act prescribes the ‘guiding principle’ that is to be applied to the practice and procedure of the Tribunal. It provides, relevantly:

36 Guiding principle to be applied to practice and procedure

(1) The “guiding principle” for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it –

(a) exercises any power given to it by this Act or the procedural rules…

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal –

(a) a party to proceedings in the Tribunal, …

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

10. Section 38 of the NCAT Act provides, relevantly:

38. Procedure of the Tribunal generally

…

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. …

(5) The Tribunal is to take such measures as are reasonably practicable –

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and …

(c) ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6) The Tribunal –

… (b) may require evidence or argument to be presented orally or in writing, …

11. The only issue that arises for determination is whether one or more non-publication orders ought to be made in relation to the proceedings in accordance with s 64(1) of the NCAT Act. That issue is of narrow compass and it is not a complex issue.

12. The procedural directions made by Principal Member Simon put the parties on notice that the Tribunal may determine to dispense with a hearing in relation to that issue and provided them with the opportunity to make submissions about that proposed course of action.

13. The respondent informed the Tribunal by email of her consent to the Tribunal dispensing with a hearing of this application. The applicant did not address this.

14. I have decided to dispense with a hearing in relation to whether a non-publication order (or orders) should be made for the following reasons:

1. I am satisfied that this issue can be determined on the papers ‘justly, quickly and cheaply’ and in a manner that proportionate to its’ importance and complexity in accordance with NCAT’s guiding principle. With respect to s 36(5) there is nothing in the enabling legislation (the GIPA Act) that is contrary to or inconsistent with this course,

2. The issues for determination do not turn on any necessity for further oral evidence to that given in the substantive proceedings. No occasion arises for the cross-examination of any witness,

3. The procedural directions made by Principal Member Simon provided the parties with the opportunity to make submissions in relation to the issue of whether a non-publication order (or orders) should be made. I am satisfied on this basis that the Tribunal has discharged the obligation contained in s 38(5)(c) of the NCAT Act to take such steps as are reasonably practicable to provide the parties with a reasonable opportunity to have their submissions considered,

4. The note to the procedural directions made by Principal Member Simon drew the parties’ attention to the applicable statutory law and case law in relation to the issue to be determined. The parties were therefore on notice as to the issues to be addressed in their submissions. I am satisfied on this basis that the Tribunal has discharged the obligation contained in s 38(5)(a) of the NCAT Act to take such steps as are reasonably practicable to ensure that the parties to the proceedings understand the nature of the proceedings,

5. This is an appropriate case for the Tribunal to require evidence and argument to be provided in writing in accordance with the discretion conferred on the Tribunal by s 38(6)(b) of the NCAT Act. In this respect the issue for determination is of limited scope and complexity and an oral hearing would result in public and party/party costs that are likely to be disproportionate to the outcome of the application.

6. I am satisfied that the submissions the parties have provided contain sufficient material to enable me to adequately determine whether a non-publication order (or orders) should be made.

Applicable law

15. The objects of the NCAT Act relevantly provide:

3 Objects of Act

The objects of this Act are –

(a) To establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and …

(c) To ensure that the Tribunal is accessible and responsive to the needs of all its users, and

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

(f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.

16. Section 49 of the NCAT Act concerns the way hearings before the Tribunal are to be conducted. It 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.

17. The Tribunal’s power to restrict disclosures concerning proceedings before it is found in section 64 of the NCAT Act, which relevantly 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 the 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. …

(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.

18. The power conferred by s 64(1) is discretionary (the Tribunal “may” make such an order). Section 64(1) does not confer any automatic or absolute right on an applicant for such an order to obtain it. The discretion is engaged if the Tribunal is ‘satisfied’ that such an order is ‘desirable’. A state of satisfaction is one of persuasion attained on a rational basis. The Tribunal must be content as to the existence of confidential evidence or of any other matter or reason that would justify such an order being made.

19. The jurisdiction to make an order under s 64(1) is conferred by s 28(1) of the NCAT Act. In making such an order the Tribunal is not exercising administrative review jurisdiction as defined in s 30 of the NCAT Act and s 9 of the ADR Act (it involves no administratively reviewable decision). Nor is it exercising the Tribunal’s general jurisdiction as defined in a 29 of the NCAT Act because it is jurisdiction conferred by the NCAT Act itself, not by NCAT’s enabling legislation. Rather, it is exercising the concurrent jurisdiction conferred by s 30(2)(b) of the NCAT Act to make an order under s 64 in connection with administrative review proceedings.

20. Two issues arise from this. First, what, if any, temporal limit applies to the making of an application for an order under s 64(1), and second, whether a formal onus of proof attaches to such an application.

21. In relation to the first issue, I cannot see that the NCAT legislative scheme attaches any temporal limit on the making of an application for an order under s 64(1). Section 64 itself does not prescribe any temporal limit for the making of such an application. As such an order does not involve the exercise of either NCAT’s administrative review or general jurisdictions the ‘default’ limitation periods contained in rules 23 and 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) also do not apply. I thus conclude that an application for an order pursuant to s 64 may be made at any time: Ritson v Commissioner for Police (No.2) NSWCATAD 89 at [29] (Ritson (No. 2).

22. However, the temporal focus for the application is the date of its determination. This involves consideration of the conduct of the proceedings up to that date and any future trajectory of the proceedings: Ritson (No. 2) at [60]. Delay in making an application for a non-publication order may thus impact on the question of whether there are sufficient grounds for the exercise of the discretion at the time the application for such an order is determined

23. In relation to the second issue, I think the better view is that s 64(1) does not impose a formal onus of proof on an applicant for an order. That is because the Tribunal itself may make such an order of its own motion. However, because there must be material before the Tribunal that establishes to the Tribunal’s ‘satisfaction’ the ‘desirability’ of a non-publication order being made, an applicant for such an order does bear an evidentiary or practical onus of establishing the desirability of such an order: Ritson (No. 2) at [63]; this finding was not disturbed on appeal in Ritson v Commissioner of Police [2022] NSWCATAP 223 at [39] to [51].

24. In DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 Deputy President Hennessy followed a decision of an Appeal Panel of the former Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) in relation to s 75(2) of the former Administrative Decisions Review Act 1997 (NSW) which was an equivalent provision to s 64 in determining if a non-publication order should be made. At paragraphs [6] to [11] her Honour summarised the relevant principles to be applied:

6. An equivalent provision to s 64 has been the subject of close analysis by the Appeal Panel of the Administrative Decisions Tribunal. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, the Appeal Panel was considering the meaning of s 75(2) of the Administrative Decisions Act 1997 (NSW). After a comprehensive analysis of the statute and the case law the Tribunal drew attention to the following points relevant to its decision in that case:

81. ...(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.

7. The first principle mentioned by the Appeal Panel, “the presumption in favour of open justice”, is a common law principle. Kirby P explained the principle in the following terms in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 (citations deleted):

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms …

A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of the proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.

8. The importance of the common law principle of open justice when exercising the discretion in s 64 of the NCAT Act was highlighted by the Appeal Panel in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61]:

…it is unthinkable that the word ‘desirable’ in s 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting…

10. … the starting point when determining an application for a non-disclosure order is to identify the reasons which are said to favour the making of such an order. The reasons may be “the confidential nature or any evidence or matter or any other reason”. The reason must be “good grounds for making the order”: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]. 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, but there may be unusual circumstances where this is the principal consideration underlying an order.

11. After identifying the reason for the application, the next step is for the Tribunal to take into account any other relevant considerations, particularly the presumption in favour of open justice. The Tribunal observed in Carroll v Tokdogan [2015] NSWCATAD 200 at [8] that the principle of open justice means that “the power contained in s 64 should be exercised sparingly”. Other relevant factors include the nature of the order being sought.

25. See also EQH v Health Administration Corporation [2021] NSWCATAD 215.

Scope of the non-publication orders sought

26. In the email dated 14 February 2024, the respondent sought non-publication orders with respect to paras [1], [109], [111] and [113] of the published decision, as follows:

1. In relation to para [1] - an order prohibiting or restricting the disclosure of the name of the Person of Interest pursuant to s 64(1)(a) of the NCAT Act;

2. In relation to para [109] – an order that the whole paragraph be marked [NOT FOR PUBLICATION];

3. In relation to para [111] - an order that the whole paragraph be marked [NOT FOR PUBLICATION]; and

4. In relation to para [113] - an order that the whole paragraph be marked [NOT FOR PUBLICATION].

27. The respondent also sought:

1. an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of the open proceedings in the Tribunal pursuant to s 64(1)(b) of the NCAT Act; and

2. an order in the usual course of GIPA proceedings that the material provided to the Tribunal to which an overriding public interest against disclosure applies (the confidential material) is prohibited from publication or disclosure pursuant to s 107 of the GIPA Act and s 64(1)(c) of the NCAT Act.

28. However, in written submissions filed on 4 March 2024, the respondent did not press the application for a non-publication order in relation to the name of the Person of Interest referred to in para [1] of the published decision, but otherwise pressed the orders sought in the email dated 14 February 2024.

Submissions of the parties

29. The applicant made no submissions that are relevant to the determination of this application. The respondent’s submissions are discussed below.

Paragraph [1] of the decision

30. The respondent has now decided not to press the application for a non-publication order regarding the name of the Person of Interest. In my view, that decision is appropriate for the following reasons:

1. Paragraph [1] set out the contents of the GIPA request that was the subject of the administrative review proceedings. A copy of that request was lodged by the applicant with her application for administrative review and the respondent would have been aware of its contents from 30 June 2023 (the date shown as the date of lodgement with the respondent).

2. The respondent’s solicitors filed a Notice of Representation with the Tribunal on 9 November 2023, and it is reasonable to assume that they were aware of the contents of the GIPA request from at least 13 November 2023 (when Ms Tipene appeared at the Case Conference).

3. The respondent did not raise any concern about the Person of Interest being identified by his first name in the GIPA request during the Case Conference, or at any time prior to the publication of the Tribunal’s decision, despite the applicant referring to the Person of Interest in open proceedings during her cross-examination of DSC Singh.

4. The applicant referred to the person of interest as “the accused” in her written submissions and she also filed a copy of her lengthy email to DSC Singh dated 15 May 2023, in which she referred to the person of interest by his full name and attached a copy of his Medicare Card.

5. During the hearing, the respondent did not object to the admission of the applicant’s evidence and it the respondent held any genuine concerns that these documents could “concretely allow (the Person of Interest) to confirm that the decision relates to his conduct, including police involvement”, these concerns should have been raised either before or during the hearing.

6. The published decision did not contain the full name of the Person of Interest and it did not contain any further identifying information, although this was in evidence before the Tribunal. In any event, the evidence before the Tribunal was that the Person of Interest left Australia within 2 days of his being interviewed by DSC Singh. It is reasonable to assume that this interview would have alerted him to the NSWPF’s interest in his conduct towards the applicant (who was the complainant).

31. In my view, it is not desirable that a non-publication order should be made with respect to the first name of the Person of Interest in para [1] of the published decision. The request for such an order is refused.

Paragraph 109

32. The respondent asserts that the entire paragraph should be marked [NOT FOR PUBLICATION] on the basis that it is based on evidence and matters “established and submitted” by the respondent in the confidential hearing.

33. Paragraph 109 contains a discussion of cl 3(b) of the Table to s 14(2) of the GIPA Act as a public interest consideration against disclosure of information sought in the GIPA request. The Tribunal determined that cl 3(b) was a relevant public interest consideration against disclosure and afforded it weight in applying the public interest test and balancing the public interest.

34. The respondent filed open submissions in relation to its reliance on cl 3(b) and I therefore reject the assertion that para [109] was based on evidence and submissions made during the confidential hearing.

35. In any event, the test for whether a non-publication order should be made is whether Tribunal is satisfied that the making of such an order is desirable. This differs from consideration of whether a public interest consideration against disclosure applied to the reviewable decision.

36. For these reasons, the application for a non-publication order with respect to the whole of para [109] is refused.

Paragraph 111

37. The respondent argues that the whole of this paragraph should be marked [NOT FOR PUBLICATION], as “it establishes that there are in fact future proceedings in relation to the person of interest so while an important finding, is based on the confidential evidence given in the confidential session and is a conclusion that could “tip off” the person of interest”.

38. I reject that argument as this issue was ventilated during the open hearing, and the applicant’s cross-examination of DSC Singh in particular.

39. Following the completion of the confidential hearing, the Tribunal observed for the applicant’s benefit, that the use of “closed” in the status of the investigation in the NSWPF’s COPS database means that the matter was inactive, but that it “could be reactivated in the future” if the Person of Interest returned to Australia.

40. Ms Tipene did not raise any concerns, or apply for a non-publication order regarding this issue, during the hearing and in any event, an observation that a currently closed investigation by the NSWPF could be reactivated in the future does not establish “that there are in fact future proceedings in relation to the person of interest”.

41. I am therefore not satisfied that it is desirable to make a non-publication order with respect to the whole of para [111] and the application for such an order is refused.

Paragraph 113

42. The respondent argues that the whole paragraph should be marked [NOT FOR PUBLICATION] on the basis that “it is a finding that is based on confidential evidence and given in the confidential session and is a conclusion that could “tip off” the person of interest”.

43. Paragraph [113] set out a discussion of cl 3(a) of the Table to s 14(2) of the GIPA Act as a public interest consideration against disclosure of information sought in the GIPA request. The Tribunal ultimately determined that cl 3(a) was a relevant public interest consideration against disclosure and afforded it weight in applying the public interest test and balancing the public interest.

44. The respondent filed open written submissions (x 2) which referred to cl 3(a), in addition to oral submissions made at the hearing. I therefore reject the proffered basis for a non-publication order regarding the whole of para [113].

45. It follows that I am not satisfied that it is desirable to make a non-publication order and the application for such an order is refused.

Order sought under s 64(1)(b) of the NCAT Act

46. The respondent also sought an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of the open proceedings in the Tribunal.

47. The Tribunal considered the issue of an order under s 64(1)(b) in Sethi vNew South Wales Crime Commission [2024] NSWCATAD 21 (Sethi). I note that Senior Member French stated, relevantly:

48. Section 64 of the NCAT Act relevantly 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:

… (b) an order prohibiting or restricting the publication or broadcast of any report of the proceedings in the Tribunal, …

(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.

48. Senior Member French ultimately refused the application for a non-publication order, except with respect to his personal information which was not re-produced in his decision, as he was not satisfied that there was any evidence or matter of a confidential nature, or any other reason, to make the order sought.

49. Applying the principles discussed by Senior Member French in Sethi, I am not satisfied that it is appropriate to make a non-publication order under s 64(1)(b) of the NCAT Act.

50. In any event, while a confidential hearing was conducted pursuant to s 107 of the GIPA Act, appropriate orders were made to identify the commencement and completion of the confidential hearing and in my view a further order is neither desirable nor appropriate.

Order sought under s 107 of the GIPA Act

51. The respondent sought an order “in the usual course of GIPA proceedings that the material provided to the Tribunal to which an overriding public interest against disclosure applies (the confidential material) is prohibited from publication or disclosure pursuant to s 107 of the GIPA Act and s 64(1)(c) of the NCAT Act”.

52. The basis for this request is not clear to me, as I note that the published decision contains a non-publication order under s 107 of the GIPA Act. Further, as the Tribunal affirmed the respondent’s decision to refuse access to the information sought by the applicant in the GIPA request, there is no means of her accessing that information.

53. I am not satisfied that there is any proper basis for this request and/or that it is desirable to make a further non-publication order.

Orders

54. I make the following orders:

1. I dispense with a hearing under s 50 of the NCAT Act.

2. The application for non-publication orders is refused.

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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

Decision last updated: 15 April 2024