DVT v Commissioner of Police

[2020] NSWCATEN 1

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DVT v Commissioner of Police [2020] NSWCATEN 1

Hearing dates:

23 May 2017

Date of orders:

14 October 2020

Decision date:

14 October 2020

Jurisdiction:

Enforcement

Before:

N Hennessy ADCJ, Deputy President

Decision:

(1) The following order is revoked:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of DVT is prohibited.

(2) Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of DVT is prohibited.

(3) The Tribunal declines to refer this matter to the Supreme Court for determination.

(4) The application by the Commissioner of Police, NSW Police Force for costs is refused.

Catchwords:

PRACTICE AND PROCEDURE – contempt – allegation that Commissioner of Police, NSW Police Force had breach non-publication order by disclosing DVT’s name to person employed in another department of the Police Force – whether matter capable of amounting to contempt

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

District Court Act 1973 (NSW)

Racing Administration Act 1998 (NSW)

Cases Cited:

ABC v Royal Commissioner (1991) 56 SASR 274

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98

Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88

Burns v Corbett [2015] NSWCATAD 188

Commissioner of Taxation v Pham [2013] FCA 579

Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188

Dow Jones and Company Inc v Gutnick [2002] HCA 56

Johnston v Nationwide News (2005) 62 NSWLR 309

KF v Parramatta Children’s Court [2008] NSWSC

Killen v Lane [1983] 1 NSWLR 171

Mohareb v Palmer [2017] NSWCA 281

Roget v Flavel (1987) 47 SASR 402

Sands v State of South Australia [2015] SASCFC 36

Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013

Witham v Holloway (1995) 183 CLR 525 at 530

Legal Services Board v Forster (No 2) [2012] VSC 633

Texts Cited:

None cited

Category:

Principal judgment

Parties:

DVT (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
J Emmett (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

PC 20/25410

Publication restriction:

Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of DVT is prohibited.

REASONS FOR DECISION

Overview

1. If “it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal, the Tribunal may refer the matter to the Supreme Court for determination”: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 73(5). DVT has applied to the Tribunal for conduct by a representative of the Commissioner of Police to be referred to the Supreme Court under that provision. The main issue is whether the conduct is capable of amounting to contempt.

2. The contempt is said to be the breach of two non-publication orders made by the Tribunal in proceedings DVT brought under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The orders, made on 2 July 2019 and 27 August 2019, were that:

The publication or broadcast of the name (name deleted) (DVT) is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: 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.

3. Failure by a party to comply with an order of the Tribunal may constitute contempt: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106; Witham v Holloway (1995) 183 CLR 525 at 530; Legal Services Board v Forster (No 2) [2012] VSC 633 at [43].

4. DVT alleges that the Commissioner breached the Tribunal’s orders when a person acting on behalf of the Commissioner, from within the Office of the General Counsel of the NSW Police Force, communicated to a person in the PoliceLink Command (InfoLink). The communication was to the effect that DVT is a party to two proceedings in the Tribunal under the PPIP Act. The Commissioner accepted the truth of that allegation and I will refer to it in these reasons as “the communication”.

5. At the time of the communication DVT had made an access application to the Commissioner under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). Section s 60(1)(e) of that Act provides that an agency may refuse to deal with an access application if the agency reasonably believes the applicant is a party to current proceedings before the Tribunal and is able to apply to the Tribunal for the information. DVT knew about the communication because on 14 January 2020, he received a letter from “Tina M, Review Officer InfoLink” advising him of the outcome of his access application. The outcome was that the Commissioner had decided to refuse to deal with his application under s 60(1)(e) of the GIPA Act.

6. In the letter the author wrote that, “the basis for my belief is that our records show that you have proceedings before” the Tribunal. (Emphasis added.) It can be inferred that Tina M knew that DVT had proceedings under the PPIP Act before the Tribunal because a person from within the Office of the General Counsel of the NSW Police Force, had communicated that fact to someone within InfoLink.

7. DVT applied for a summons to be issued to “Tina M, Review Officer, InfoLink” for the following documents: “the ‘record’ referred to in the Notice of Decision from Tina M”, Review officer InfoLink, NSW Police Force to (DVT) dated 14 January 2020.” The material sought to be summonsed was said to be relevant to the exercise of the Tribunal’s discretion to refer the matter to the Supreme Court for contempt.

8. DVT submitted that “the communication” amounts to the “disclosure” or, alternatively the “publication” of his name in breach of the Tribunal’s orders. For several reasons, he submitted that the Tribunal should refer the matter to the Supreme Court for determination. The Commissioner’s view is that the communication does not constitute publication and is not capable of amounting to contempt of the Tribunal. Even if it is, the Tribunal should not exercise its discretion to refer the matter to the Supreme Court.

Issues

9. The ultimate issue is whether the Tribunal should exercise the discretion in s 73(5) of the NCAT Act to refer this matter to the Supreme Court for determination. Because s 73(5) of the NCAT Act is in very similar terms to s 203 of the District Court Act 1973 (NSW), cases interpreting that provision are relevant: Burns v Corbett [2015] NSWCATAD 188 at [58] – [61]. Under s 73(5) and s 203(1) if “it is alleged, or appears to (the District Court or Tribunal) on its own view, that a person is guilty of contempt of (court or of the Tribunal), the (court or tribunal) “may refer the matter to the Supreme Court for determination.” It is not the Tribunal’s role to determine whether a person is guilty of contempt. In Mohareb v Palmer [2017] NSWCA 281 at [19], the Court of Appeal (Basten JA, Sackville AJA agreeing) approved of Gibson J’s statement that:

For the power under s 203 to be exercised, there must be a finding by the court of conduct capable of amounting to contempt of court.

10. If that finding is made, the Tribunal must give the person an opportunity show why the matter should not be referred to the Supreme Court. Finally, the Tribunal may, in the exercise of the discretion, refer the matter to the Supreme Court for determination: Burns v Corbett [2015] NSWCATAD 188 at [61]; Mohareb v Palmer [2017] NSWCA 281 at [22]; Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 at [30].

11. The questions, and my answers to those questions in brackets, are as follows:

1. Do the Tribunal’s orders prohibit only the “publication” of DVT’s name or do they prohibit any “disclosure” of his name? (Only the publication of his name.)

2. Is the communication a publication of DVT’s name? (No.)

3. Is the communication capable of amounting to contempt of the Tribunal? (No and it is not necessary to consider whether to exercise the discretion in s 73(5) of the NCAT Act.)

4. Should a summons be issued in the terms requested by DVT? (No.)

5. Should the non-publication order in relation to DVT’s name in these proceedings be revoked? (No.)

6. Should DVT pay the costs of these proceedings? (No.)

Do the Tribunal’s orders prohibit only the “publication” of DVT’s name or do they prohibit any “disclosure” of his name?

Issue

12. This question raises two sub-issues. Is the meaning of the word “publication” in the Tribunal’s orders affected by the purpose of the orders or the context in which those orders were made? Secondly, what constitutes publication?

Terms of s 64

13. The Tribunal’s power to restrict disclosures is in s 64 of the NCAT Act. Section 64 (1) allows the Tribunal to make orders restricting the publication, broadcast or disclosure of information and documents in proceedings. Section 64(1)(a) of the NCAT Act gives the Tribunal power to make “an order prohibiting or restricting the disclosure of the name of any person” if it “is satisfied that it is desirable to do so . . .”. Section 64(1)(b) gives the Tribunal power to make “an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal” on the same basis. (My emphasis.) Section 64(2) prevents a person from publishing or broadcasting the name of anyone “mentioned or otherwise involved in any proceeding” in the Guardianship Division or for a decision for the purposes of the community welfare legislation. I note that in relation to such proceedings, the person is prevented from publishing or broadcasting the name, whereas under s 64(1)(a), the Tribunal may make an order preventing the disclosure of the name.

14. Section 64 is set out in full below:

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.

Is the meaning of the word “publication” in the Tribunal’s orders affected by the purpose of the orders or the context in which those orders were made?

15. The Tribunal’s orders are expressed as prohibiting the “publication” of DVT’s name. There is no issue in these proceedings as to the Tribunal’s power to make an order expressed in those terms. DVT submits that although the Tribunal used the word publication in the orders, the reference to s 64(1)(a) suggests that the Tribunal intended to make an order under that provision preventing any disclosure of his name. The Commissioner maintains that the words of the order speak for themselves and are confined to publication of DVT’s name.

16. The Tribunal has produced a Guideline dated August 2017 for proceedings in the Administrative and Equal Opportunity Division. The Guideline, Confidentiality, privacy and publication states, at [17(b), that:

The Tribunal usually anonymises the applicant’s name in hearing lists and decisions in any application under the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002.

17. These kinds of orders are typically called “pseudonym orders”. They restrict the publication or disclosure of the identity of a witness or party but allow the court to remain open and the proceedings to be reported. For proceedings under the PPIP Act (and the Health Records and Information Privacy Act) the policy reason behind making such an order is the protection of the person’s identity so that their personal information is not revealed or their privacy compromised in contravention of the provisions of that legislation.

18. An example of a pseudonym order made by a court can be found in Witness v Marsden & Anor [2000] NSWCA 52:

The Witness is to be addressed and referred to in the court only by a pseudonym.

Any matter which is likely to lead to the identification of the Witness is not to be reported by those in court.

No photographs, film or video recording is to be taken of the Witness in the court or within its precincts, and no drawings or other likenesses are to be made of the Witness either in the court or within its precincts.

19. In PQR v Secretary, Department of Justice and Regulation [2017] VSC 517 Bell J explored the relationship between a “pseudonym” order and a broader non-publication order:

1. The expression ‘pseudonym order’ is a term of practical description and not a technical term of art. Such orders may take a variety of forms and have effect according to their particular terms. Typically, they are orders pursuant to which parties, witnesses and others involved in a legal proceeding must be described in documents filed and served in the proceeding or in evidence and submissions by a pseudonym.

2. The standard purpose of a pseudonym order is to ensure the proper administration of justice by protecting the identity of the party, witness or other person involved in relation to the legal proceeding. This purpose is indirectly achieved in most cases by an order requiring the person to be identified in relation to the proceeding only by reference to the pseudonym. Because a pseudonym order is usually the least restrictive option when some kind of limitation upon open justice and the free communication of information must needs be imposed, such an order may be made, and often is made, without making, or indeed in preference to making, an order directly restricting or prohibiting publication of the identity of the person in relation to the proceeding or information from which his or her identity could be derived. However, for the purpose of ensuring greater protection when necessary, it is sometimes combined with a direct non-publication order,

   20. In proceedings under the PPIP Act, the Tribunal typically makes non-publication orders, rather than narrower pseudonym orders. In this case, the Tribunal used the word “publication”, rather than “disclosure.” Regardless of the reference to s 64(1)(a) or the policy considerations behind making the orders, they have effect according to their particular terms. It follows that the Tribunal’s orders prohibit the publication of DVT’s name.

Is the communication a publication of DVT’s name?

What constitutes publication?

21. Neither the word “publication” nor the word “disclosure” is defined in the NCAT Act. DVT submitted that the word “publication” in the Tribunal’s orders should be given the same meaning as that word is given in defamation law, namely a “ . . .bilateral act - in which the publisher makes (the information) available and a third party has it available for his or her comprehension”: Dow Jones and Company Inc v Gutnick [2002] HCA 56 at [26]. (Words in brackets added.)

22. In Commissioner of Taxation v Pham [2013] FCA 579, Katzman J was dealing with the scope of the Administrative Appeals Tribunal’s power to make non-publication orders under 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth). Katzman J rejected the proposition that the AAT has no power to make a non-disclosure order under that provision. Her Honour went on:

There is no clear dividing line between publication and disclosure. The words may be synonymous. Publication certainly includes disclosure. A person who publishes a document discloses its contents. A person who publishes evidence discloses the evidence. Recourse to the Oxford and Macquarie Dictionaries shows that one of the meanings of “publish” is to “make publicly or generally known” and one of the meanings of “disclose” is to make known.

23. Publication and disclosure may be synonymous in the sense that making something publicly or generally known may also be a disclosure. However, as Katzman J points out, not all disclosures are publications.

24. DVT also referred to a defamation case, Sands v State of South Australia [2015] SASCFC 36 at [449], where the Court identified two distinct meanings of the word “publish”:

The word publish is protean. At one extreme, it refers to any communication of information by one person to another, whether private or public (this is the meaning of the element of the cause of action in defamation that the defamatory matter be published). At the other extreme, it refers to a communication to the public or the world at large.

25. The South Australian Supreme Court then referred to a decision relied on by the Commissioner - Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013. In that case the Court was interpreting the word “publish” in the context of s 33 of the Racing Administration Act 1998 (NSW). Under that provision, it was an offence to “publish a list of the horses or dogs nominated for any intended race . . . “ unless the publication of the list has been approved or authorised . . . “ The word “publish” was defined in s 27 of the legislation. Palmer J said at [22] – [23] that:

1. The word “publish” has two meanings: the ordinary or common meaning which the layman would use, and the technical meaning which a defamation lawyer would use. To a layman “to publish” ordinarily means to make generally known, declare or report openly, proclaim, bring something to public notice, or make information generally accessible or available: see e.g. New Shorter Oxford English Dictionary. The word derives from “publicus” and connotes making something known or available to the world at large.

2. To a defamation lawyer, however, “to publish” has a highly specialised meaning – some would say, indeed, a meaning which includes the very opposite of its meaning outside defamation law. In defamation law “to publish” is to communicate defamatory material to a person other than the person defamed. One person will suffice. For example, if a husband opens a letter addressed to his wife and finds in it matter defaming his wife, the writer of the letter has “published” the letter to the husband for purpose of the law of defamation: Theaker v Richardson [1962] 1 WLR 151.

   26. Neither these proceedings, nor the proceedings in which the Tribunal made the orders, were defamation proceedings.

   27. In Roget v Flavel (1987) 47 SASR 402 at 406, in a passage adopted by Matheson J in ABC v Royal Commissioner (1991) 56 SASR 274 at 282-4 and by Hidden J in KF v Parramatta Children’s Court [2008] NSWSC 1131 at [14] – [15], Cox J said of the word “publish” in the context of court suppression orders:

   It does not refer to a substantially private communication, from one person to another, whether by way of preparation for an impending trial, or as information to someone with an obvious commercial or personal or other interest in the matter, or merely by way of unedifying gossip. The typical publication prohibited by s 69a will be publication by means of a newspaper or a television or wireless broadcast. However, there are other ways in which the communication of information may be made with the necessary public element - an announcement at a public meeting, for instance, or a statement uttered to the world at large on a street corner. Perhaps there could be cases in which, in accordance with the dictionary definition, notification to a relatively small group of people could be regarded, by reason of their random, or in some circumstances their representative, character, as a publication under s 69a. Obviously there will be borderline cases. ...

   In my opinion, that interpretation of s 69a will cope with the problem that, as I see it, the section is attempting to solve – the more or less wholesale communication of the suppressed material to all and sundry, including those with only an idle interest in the matter. I do not think that Parliament was attempting to stop and make unlawful ... a communication between individuals, for one reason or another, with no public aspect about it.

   28. In my view, when interpreted in context, the ordinary meaning of the word “publication” in the Tribunal’s orders is “to make generally known, declare or report openly, proclaim, bring something to public notice, or make information generally accessible or available”.

Is the communication in this case “publication” capable of amounting to contempt?

29. The communication the subject of these proceedings does not come within that definition. The communication was by a person acting on behalf of the Commissioner from within the Office of the General Counsel of the NSW Police Force to a person in another department of the Police Force – InfoLink. No information was brought to the notice of the public or a section of the public. The information was not made generally accessible or available.

30. Whether the officer needed the information to perform their role or function under the GIPA Act is not determinative. What matters is that the communication did not bring DVD’s name to the notice of the public or a section or the public. It follows that the communication was not a publication and is not capable of amounting to contempt of the Tribunal.

31. Having come to that conclusion, there is no need to consider whether there is a reasonable excuse for that conduct or whether the Tribunal should exercise its discretion to refer the matter to the Supreme Court for determination: Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188 at [29] to [34].

Should a summons be issued in the terms requested by DVT?

32. DVT applied for a summons to be issued to “Tina M, Review Officer, InfoLink” for the following documents: “the ‘record’ referred to in the Notice of Decision from Tina M”, Review officer InfoLink, NSW Police Force to (DVT) dated 14 January 2020.” Because the material sought to be summonsed was said to be relevant to the exercise of the Tribunal’s discretion under s 73(5), I do not need to determine that application.

Should the non-publication order in relation to DVT’s name in these proceedings be revoked?

33. On 13 July 2020, the Tribunal in these proceedings made the following order:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of DVT is prohibited.

34. The Commissioner has applied to the Tribunal for the revocation of that order. DVT opposes revocation because it would indirectly lead to the identification of his name as the applicant in the proceedings under the PPIP Act. He gave evidence that he would be reluctant to make a similar application for referral to the Supreme Court in future if there was a risk that doing so would result in the non-disclosure order being revoked.

35. The Commissioner submitted that DVT has adduced no evidence to demonstrate what prejudice he would suffer if his name is known in these proceedings. The Commissioner accepts that the nature of the proceedings and the nature of the application are relevant considerations, but the Tribunal should take care about uncritically accepting an applicant’s request for anonymisation, even in contexts such as privacy legislation. If an order is made, it should be expressed as a non-publication order, not as a non-disclosure order.

36. As I have said, the policy reason behind making a pseudonym order or a non-publication order in proceedings under the PPIP Act is to protect the applicant’s identity so that their personal information is not revealed or their privacy compromised in contravention of the provisions of that legislation. Revoking the non-disclosure order in these proceedings would compromise the effect of the non-publication order in the proceedings under the PPIP Act and I decline to make that order. However, there is no reason for the level of restriction to be greater in these proceedings (by the making of a non-disclosure order) than in the proceedings under the PPIP Act (by the making of a non-publication order). Consequently, I revoke the existing order and make the following order:

Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of DVT is prohibited.

Should DVT pay the costs of these proceedings?

37. The general rule in NCAT proceedings is that each party is to pay their own costs: NCAT Act, s 60(1). The Tribunal may award costs “in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.” The word “proceedings” is not defined in the NCAT Act.

38. In the Supreme Court, contempt proceedings do not expose a complainant to costs because the decision to prosecute them is made by the Supreme Court and is ministerial in nature, rather than judicial: Killen v Lane [1983] 1 NSWLR 171 at 177. In Johnston v Nationwide News (2005) 62 NSWLR 309 at [25], Ipp JA observed (Beazley JA agreeing) that “there is a real question as to whether the District Court has power to make a costs order when an application is made under s 203 . . .” However the Court did not consider those proceedings to be an appropriate vehicle for the consideration of that question. As I explained above, s 203(1) of the District Court Act is expressed in similar terms to s 73(5) of the NCAT Act. Section 148B(1)(a) of the District Court Act 1973 (repealed) provided that, “costs in or in relation to any proceedings shall be in the discretion of the Court”. No other case as to whether the District Court has power to make a costs order in this context was brought to my attention.

39. In my view, where a person makes an allegation that another person is guilty of contempt, and requests referral to the Supreme Court, the determination of that matter is a proceeding and s 60 of the NCAT Act applies.

40. The ‘special circumstances’ warranting an award of costs were said to be:

1. the nature of the application;

2. the weakness of DVT’s argument; and

3. DVT’s “litigious history” in that this is the second time he has brought proceedings alleging contempt arising from proceedings 2019/127295 and 2019/230579 in a period of 3 months.

41. The Commissioner did not elaborate on how the nature of DVT’s application warranted an award of costs. As to the alleged weakness of his argument, close consideration of the facts and the legal principles were required to come to a view as to whether or not the Tribunal’s orders had been breached. I do not consider DVT’s submissions to have been particularly weak, much less untenable.

42. DVT withdrew the first contempt proceedings when the facts became apparent. Making two applications in those circumstances does not amount to a ‘litigious history’ or any other basis on which the proceedings may be regarded as vexatious or misconceived. I am not satisfied that there are special circumstances warranting an order for costs.

Orders

1. The following order is revoked:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of DVT is prohibited.

2. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of DVT is prohibited.

3. The Tribunal declines to refer this matter to the Supreme Court for determination.

4. The application by the Commissioner of Police, NSW Police Force for costs 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: 14 October 2020