Frost v Commissioner of Police

[2019] NSWCATAD 273

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Frost v Commissioner of Police [2019] NSWCATAD 273

Hearing dates:

19 December 2019

Date of orders:

19 December 2019

Decision date:

31 December 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Cole, DCJ

Decision:

1. Application for a non publication order is refused

2. Application for recusal is refused

Catchwords:

Practice and procedure – orders restricting or prohibiting publication - recusal

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

DHL v Nationwide News Pty Ltd [2018] NSWCATAD 92
State of NSW (Justice Health) v Dezfouli [2018] NSWADTAP 69
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Category:

Procedural and other rulings

Parties:

Julie Frost (applicant)
Commissioner of Police (respondent)

Representation:

In person (applicant)
Crown Solicitor of NSW (respondent)

File Number(s):

2019/00353931

REASONS FOR DECISION

Application for non-publication order

1. Ms Frost has applied for the review of a decision in relation to an application made by her to the respondent under the Government Information (Public Access) Act 2009.

2. On 19 December 2019, at a case conference in the matter, Ms Frost sought an order that her name, her address, her phone number, her email address and the names of her family members be the subject of a non-publication order.

3. There is no need for an order with respect to a person’s address, phone number or email address. There would be no reason to publish that information in a decision in a matter of this kind in any event.

4. Directions were made on 29 November 2019, giving Ms Frost an opportunity to provide submissions in support of her application for a non-publication order.

5. Ms Frost did not provide any submissions or any evidentiary material.

6. At the case conference, Ms Frost submitted that the documents she was seeking from the respondent were her private information and should not be published. She said that some of the information related to allegations of criminal conduct committed against her. She said that the situation was similar to a criminal court declining to record a conviction.

7. Ms Frost further argued that publishing a decision in this matter with her name on it would be highly stigmatising and may ruin her reputation.

8. In her application, Ms Frost said that one of the grounds for seeking a non-publication order was the risk of stalking. No evidence was provided as to why Ms Frost believes that she is at risk of being stalked.

9. The Civil and Administrative Tribunal Act 2013 (“the Act”) provides, in s 64(1):-

(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),

…

10. One of the objects of the Act is to ensure that this Tribunal conducts processes which are open and transparent (see s 3(f) of the Act). This is consistent with the common law principle of open justice. Proceedings are to be open and reportable in the absence of good reasons to restrict public access. (see DHL v Nationwide News Pty Ltd [2018] NSWCATAD 92 and State of NSW (Justice Health) v Dezfouli [2018] NSWADTAP 69).

11. No basis has been put forward upon which I could be satisfied that it is desirable, by reason of the confidential nature of any evidence or matter, or for any other reason, that the disclosure of the applicant’s name be prohibited or restricted.

12. Accordingly, Ms Frost’s application for a non-publication order was refused.

Application for recusal

13. Ms Frost applied for me to recuse myself from hearing any part of these proceedings.

14. Ms Frost indicated (and I paraphrase and summarise) that her ground for this application was that I had, in the past, allocated Tribunal members to hear proceedings in which she had been involved, and that the conduct of those proceedings, and the outcome of applications by her in the course of those proceedings, had not accorded with her views as to what ought to have happened.

15. It was not clear in what manner Ms Frost believed that performing administrative tasks such as allocating hearings could amount to actual or apprehended bias.

16. There is no evidence or reason to believe that I have prejudged this matter, or closed my mind to any argument in support of Ms Frost’s position (see SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [15]). Actual bias has not been established.

17. The test for apprehended bias is whether a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question that they are required to decide (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]).

18. Ms Frost has not established any basis for the allegation of apprehended bias.

19. Accordingly, Ms Frost’s application for me to recuse myself was refused.

**********

​

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: 31 December 2019