Frost v State of New South Wales, Department of Communities and Justice

[2019] NSWCATAD 165

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Frost v State of New South Wales, Department of Communities and Justice [2019] NSWCATAD 165
Hearing dates:	On the papers
Date of orders:	19 August 2019
Decision date:	19 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1)   The name of the respondent is amended to State of New South Wales, Department of Communities and Justice. (2)   The Tribunal dispenses with a hearing of the applicant’s recusal application and dispenses with a hearing of the applicant’s application for a non-publication order. (3)   The applicant’s recusal application is refused. (4) The applicant’s application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the applicant’s name is refused.
Catchwords:	PRACTICE AND PROCEDURE – Principles applying to power to make confidentiality orders – Whether Tribunal should dispense with a hearing PROCEDURAL FAIRNESS – Apprehended or actual bias - Whether Tribunal member should recuse herself
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019 (NSW)
Cases Cited:	CJU v SafeWork NSW [2018] NSWCATAD 171 Davies v The Queen [2019] VSCA 66 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Frost v State of New South Wales, Department of Justice [2019] NSWCATAD 76 Frost v TAFE NSW [2019] NSWCATAD 62 Frost v TAFE NSW (No 2) [2019] NSWCATAD 12 Jordan v Audet [2016] NSWCATAP 22 Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Julie Frost (applicant) State of New South Wales, Department of Justice (respondent)
Representation:	Solicitors: Applicant (Self Represented) Minter Ellison (Respondent)
File Number(s):	2019/00053507
Publication restriction:	Nil

REASONS FOR DECISION

1. This decision concerns the issues of whether Ms Frost’s name should be published in a substantive decision already provided to the parties, and whether I should recuse myself from the determination of that application.

2. I have decided not to recuse myself because Ms Frost has not established that I am affected by actual bias or that a reasonable apprehension of bias has arisen in these proceedings.

3. I have decided not to make orders suppressing Ms Frost’s name. That is because I am not satisfied that it is desirable to do so, having regard to the open justice principle. Ms Frost’s main reason for wanting non-publication orders appears to be a concern about her mental health issues becoming widely known. This is understandable. However, stress caused to a party by disclosure of the party’s name is not usually a sufficient reason to depart from the principle of open justice. Further, the fact of her disability has already been published in other reasons, so that a non-publication order would not achieve the outcome she seeks.

Background

4. Ms Frost made a complaint of disability discrimination and a complaint of victimisation against the respondent to the President of the Anti-Discrimination Board. The President declined her complaint as lacking in substance: Anti-Discrimination Act 1977, s 92(1)(a)(i).

5. At Ms Frost’s request, the President referred the matter to the Tribunal pursuant to s 93A of the Anti-Discrimination Act.

6. On 5 March 2019, I heard Ms Frost’s application for leave to bring the proceedings (Anti-Discrimination Act, s 96(1)). Ms Frost appeared by telephone at the leave hearing. She did not make any application for non-publication orders.

7. As it appeared to me at the hearing that certain material would assist me in my decision-making, I made orders requiring the parties to provide further material to the Tribunal. The parties complied with those orders.

8. On 30 April 2019, Ms Frost emailed the Registrar asking her to withhold publishing of the decision and informing the Registrar that she sought non-publication of her name.

9. On 1 May 2019, I made orders refusing Ms Frost leave to proceed with her complaints and gave written reasons (Frost v State of New South Wales, Department of Justice [2019] NSWCATAD 76).

10. On 2 May 2019, the Registrar emailed the written reasons to the parties. My reasons were not published on NSW Caselaw or otherwise made public.

11. The Tribunal then invited the parties to make submissions on Ms Frost’s non-publication application.

12. On 14 June 2019, Ms Frost applied, by email to the Registrar, to have me recuse myself from the determination of the non-publication application. Her submissions in support of her application were as follows:

“My reasons are the Lucy engaged in corruption and abuse of office. She is aware I reported this to the QCAT President. 

Juliet Lucy colluded with PM Anne Britton to carry out reprisals because I made a complaint against [the Deputy Registrar] lodged with ADB,  and then PM Britton used her position to harass me,  which has also been reported extensively to the QCAT President and copied to the respondents. 

I cannot prove collusion and a gang up of the Tribunal employees punching down on me,  in a disability discrimination case, which the President should find appalling. I cannot prove it until the time member emails are subject to accountability and transparency. 

I have made submissions to royal commission inquiries to include the scope and terms of reference for disability (and indigenous) abuse to include the courts and those making decisions.  When that time comes, that the emails of PM Britton and SM Juliet Lucy are made available, I intend to have all my matters,  which they have perverted, be reopened. 

The abuse of power and punching down by members on power trips aiming at vulnerable people,  while getting in a group, is an issue with the President failing to manage despicable staff. 

The QCAT President can collect the emails of Anne Britton and Juliet Lucy. The failure to do so shows the President leads the corruption.”

13. In an email of 29 June 2019 to the Registrar, Ms Frost alleged that my “conduct during proceedings and reasons shows bias and a collective bullying action using public office ie. Corruption.” She relied upon previous submissions and made the following additional complaints:

“2.   Juliet Lucy carried out illegal discussions prior to determination of my case with Anne Britton and decided to use her position at NCAT corruptly for discrimination,  hatred and to secure her financial and career opportunities by inflicting damage on me based on her gossip with Anne Britton. This is a collective action and a mobbing due to my complaints about malfeasance and ADA complaints against [the Deputy Registrar] who denied me four summons applications without due process, requiring me to hire a lawyer if I was to receive services from NCAT.

…

3.   Juliet Lucy should turn over her emails about me which amount to abuse of office and the President should take action to prevent her targeting vulnerable people with corrupt acts for career gain. 

4.   The collusion between Lucy and Britton to decide a case based on personal vendetta rather than the rules of the Tribunal and law is the primary reason for requesting Lucy recuse herself and I ask her to admit or deny emailing Britton. Those emails evidence malice and bias. 

5.   SM Lucy provided less than 15 minutes for me to make my submissions for the case and during that time she raised not a single issue or objection. This removed from me any opportunity to rebut or clarify essential issues she then deceitfully relied on to my prejudice, showing bias. 

6.   While also not allowing me opportunity to clarify any issues,  and concealing the issues she would later use against me,  she then in reasons portrayed me as an intellectually disabled idiot who could not be understood and that my claim was badly set out. 

If she felt that way, (as she has deceitfully imputed)  cutting short my time to clarify, while I am legally trained and my law grades were high distinction level (higher than hers very probably), and while I am told regularly that I am very articulate, this degrading portrayal of me further shows bias and her hidden agenda of corruption. 

7.   SM Lucy, to decide against me claimed she did not know what my disability is and that I had not provided supporting evidence for my claim. This shows unfitness to work in the discrimination division of the Tribunal or at all at NCAT because NCAT members are expected to work with unrepresented persons and to ask a litigant a very basic fact if not knowing it,  such as asking what my disability is, is what she will rely on to deny access to justice for an unrepresented person who she gave under 15 minutes to for relaying submissions, despite her extensive gossip with Britton about my disability prior to making the adverse decision anyway.”

14. Ms Frost concluded her email in the following way:

“SM Lucy repeatedly denied procedural fairness to me showing bias and that she has ingrained prejudice against people of lower socioeconomic status which encompasses most protected classes under ADA.  She has conservative values that are harmful for a human rights tribunal.”

15. Principal Member Britton, to whom Ms Frost referred in her emails, heard and determined a separate matter in which Ms Frost was an applicant on 1 July 2019 (Frost v TAFE NSW [2019] NSWCATAD 62).

16. On the same day, the Department of Justice was abolished and the persons employed in that Department were transferred to the new Department of Communities and Justice (Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019, clause 10).

17. The respondent made submissions opposing the non-publication order. It made no submissions concerning the recusal application. It accepted that its name should be changed in these proceedings, to reflect the new administrative arrangements.

DETERMINATION ON THE PAPERS

18. On 30 July 2019, the Registrar wrote to the parties, at my request, informing them that the Tribunal had formed a preliminary view that Ms Frost’s recusal application and application for non-publication orders were suitable for determination on the papers. The Registrar requested the parties to provide any submissions in opposition to this proposed course by 7 August 2019.

19. Ms Frost emailed the respondent’s legal representative and the Registrar on 30 July 2019, indicating that she “took issue” with the matter being determined on the papers and requested to appear by telephone. She stated that she also “took issue” with the Deputy Registrar and I “phoning the respondent for ex parte communication and requesting a second copy of their submissions.”

20. I infer from this that the Deputy Registrar telephoned the respondent’s legal representative to ask for another copy of the respondent’s submissions. I did not do so.

21. In a subsequent email of the same day to the respondent’s legal representative (copied to the Tribunal’s registrar), Ms Frost explained that she “requested a hearing by phone, not on the papers” so that she could “force” me “to admit or deny colluding with Britton to use the Tribunal for personal misconduct.”

22. The respondent’s legal representative replied by email, copying in the Registrar, stating that the respondent would not oppose a hearing on the recusal application, but that it was a matter for Ms Frost.

23. Under s 50(2) of the Civil and Administrative Tribunal Act 2013 (“NCAT Act”), 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.

24. The parties have provided written submissions and other material in relation to both the recusal application and the application for non-publication orders. I am satisfied that the issues for determination in both applications can be adequately determined in the absence of the parties by considering the material they provided.

25. The guiding principle for the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)). The parties have a duty to co-operate with the Tribunal to give effect to the guiding principle (NCAT Act, s 36(3)).

26. The Tribunal has already held a hearing and determined the substantive issues in the proceedings. Ms Frost could have applied for the orders she now seeks at that hearing. I do not consider that it would facilitate the just, quick and cheap resolution of the real issues in the proceedings to hold another hearing to determine Ms Frost’s subsequent applications.

27. I also note that, under s 36(4) of the NCAT Act, “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.” The issues raised by the applicant in her present applications are not complex. Determining these applications on the papers is a proportionate response which minimises the cost to the parties and the Tribunal.

28. The reason the applicant gave for requesting a hearing (at which she proposed to appear by telephone) was so that she could put to me that I had colluded with Principal Member Britton and “force” me to admit or deny this. That is not a proper purpose for holding a hearing.

29. For all of these reasons, I have decided to make an order under s 50(2) of the NCAT Act dispensing with a hearing of Ms Frost’s recusal application and her application for a non-publication order.

RECUSAL APPLICATION

30. Ms Frost appears to be applying for me to recuse myself on the ground of actual bias. She may also be applying for me to recuse myself on the ground of apprehended bias, although she has not made this explicit. I have assumed that Ms Frost is relying on both grounds.

Actual bias

31. The recusal application on the ground of actual bias depends upon a number of allegations that I “colluded with” Principal Member Britton and that Principal Member Britton and I exchanged emails about Ms Frost pursuant to a “personal vendetta” against Ms Frost.

32. In her emails of 14 June 2019 and 29 June 2019, which are set out above, Ms Frost has alleged that I “engaged in corruption and abuse of office,” that I “colluded with” Principal Member Britton “to carry out reprisals,” that I “carried out illegal discussions” with Principal Member Britton prior to determining Ms Frost’s case and that I sent emails about Ms Frost “which amount to abuse of office.”

33. Ms Frost provided no evidence to support any of her allegations and gave no particulars of the allegations.

34. The allegations are without foundation.

35. A party seeking to establish actual bias bears a heavy onus: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, McColl JA (Giles and Tobias JJA agreeing) at [97]. The allegation of bias must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Ms Frost’s allegation of bias was neither distinctly made, nor clearly proved.

36. Ms Frost also made some allegations about the way I conducted the hearing. She claimed that I provided less than fifteen minutes for her to make her submissions and did not raise any issue or objection. She also alleged that I did not allow her to clarify any issues and concealed issues which I later used against Ms Frost. Finally, she says that I portrayed her as “an intellectually disabled idiot” in my reasons.

37. There is no evidence as to the length of time I allowed Ms Frost to make her submissions. Ms Frost has not obtained the recording of the hearing. My recollection is that Ms Frost made submissions for half an hour or more. The hearing was allocated an hour.

38. Even if Ms Frost is correct in her contention that I allowed her only fifteen minutes, this does not establish actual bias. The Tribunal is entitled to “require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases” (NCAT Act, s 38(6)(c)). I allowed Ms Frost a period of time to make her submissions which I determined was reasonably necessary for the fair and adequate presentation of her case.

39. Ms Frost has not provided any evidence to support her claim that I did not allow her to clarify issues. My recollection is that I asked her questions for exactly that purpose, and I made directions that she provide further written submissions and evidence after the hearing to support her case. I do not accept that I portrayed her as “an intellectually disabled idiot” in my reasons for decision.

40. Ms Frost has not established that I prejudged her matter, or that I had a mind closed to any argument in support of her position (SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [15]). I do not regard any of the aspects of the hearing as disclosing a commitment to an opinion that was incapable of alteration: see CJU v SafeWork NSW [2018] NSWCATAD 171 at [38]; Davies v The Queen [2019] VSCA 66 at [523]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

41. The allegations of actual bias are not established.

Apprehended bias

42. 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 he or she is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ at [6].

43. Ms Frost has not established that there was anything in my conduct of the hearing or my conduct outside the hearing which would give rise to a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the determination of her leave application.

Determination of recusal application

44. I have not considered, given my conclusions, whether Ms Frost has waived her right to object to me determining her application for non-publication orders on the ground of actual or apprehended bias, by waiting until after she was provided with my decision to make the application.

45. For the reasons given above, Ms Frost’s recusal application is rejected.

APPLICATION FOR NON-PUBLICATION ORDERS

Parties’ submissions as to non-publication

46. I have taken Ms Frost’s request, communicated by email to the Registrar, that her name not be published to be an application for a non-publication order, pursuant to s 64(1)(a) of the NCAT Act.

47. Section 64(1)(a) 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), …

48. On 5 May 2019, in the context of her application for a non-publication order, Ms Frost emailed the Registrar, copying in the respondent’s legal representative, stating that she suffered from PTSD and depression, and stating that “giving notice to people of disability is sending out an invitation to treat me as a second class citizen.”

48. Ms Frost emailed the Registrar again on 11 May 2019, copying in the respondent’s legal representative, and stating that “[t]hese are my non pub submissions.”

49. Ms Frost claimed in these submissions to be very susceptible to bullying by large groups. She also claimed to have “a lived experience of repetitive chronic disability abuse.” The email, when printed, was about five pages long and made various general comments about bullying, workplace mobbing, natural justice and violence at work. I did not find these general submissions to be of great assistance in determining the application for a non-publication order.

50. On 19 June 2019, Ms Frost sent another email to the Registrar in which she described herself as being under a “severe disability” due to bullying. She also stated that she was currently diagnosed with severe depression and anxiety and somatic symptoms.

51. The respondent filed submissions on 21 June 2019 opposing Ms Frost’s application for non-publication orders on various bases. It characterised Ms Frost’s concerns to be about the stigma attached to being known as having a disability. It submitted that there was no evidence as to Ms Frost’s disability and that an order prohibiting the publication or broadcast of Ms Frost’s name would only serve to concrete any stigma rather than normalising mental health issues.

Relevant principles

53. A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise: NCAT Act, s 49(1). This reflects the open justice principle: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (“Dezfouli”) at [58]; Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 at [9]-[10]; Frost v TAFE NSW (No 2) [2019] NSWCATAD 12 at [10]-[12] and [23].

54. The prospect of embarrassment and stress affecting a complainant is generally “an insufficient basis for departing from the general rule that the Tribunal’s proceedings should be conducted openly”: Dezfouli at [73].

55. I am not persuaded that Ms Frost’s name in relation to these proceedings is confidential (see Jordan v Audet [2016] NSWCATAP 22 at [27]). As with the application for non-publication orders in Jordan v Audet, she did not make a non-disclosure application during the hearing, nor did she make any application that the hearing proceed in private under s 49 of the NCAT Act. In consequence, the respondent has been free to disclose Ms Frost’s involvement in the proceedings (see Jordan v Audet at [27]). In addition, as the respondent points out, Ms Frost has emailed third parties, such as the Ombudsman, the Anti-Discrimination Board and the Independent Commission Against Corruption, about the proceedings.

56. The circumstance that Ms Frost suffers from a disability has already been made public. On 1 July 2019, Principal Member Britton provided reasons for her decision in Frost v TAFE NSW (No 2) [2019] NSWCATAD 12. In that decision, Principal Member Britton rejected Ms Frost’s application for non-publication orders and referred to her claimed disability (at [16]). Principal Britton ordered that her “reasons must not be published on Caselaw until 28 days after the date of this decision.” The reasons have now been published and appear on Caselaw.

57. The power to prohibit the disclosure of a person’s name under the NCAT Act is much broader than, for example, the Supreme Court’s powers under the Court Suppression and Non-publication Orders Act 2010. The Tribunal may make a non-disclosure or non-publication order if “satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason” (NCAT Act, s 64(1), my emphasis). Nevertheless, as the Appeal Panel of the Administrative Decisions Tribunal observed in Dezfouli, the word “desirable” is to be understood having regard to the basic common law precept of open justice. 

58. I am not satisfied that it is desirable to make a non-publication order in the circumstances of this case.

59. I am prepared to accept Ms Frost’s statements that she suffers from mental health problems, even though she has not provided any medical evidence confirming this. I share Principal Member Britton’s concerns that she suffers from a mental illness which might be exacerbated if the non-disclosure order is not made (Frost v TAFE NSW (No 2) [2019] NSWCATAD 12 at [26]). However, in the absence of medical evidence to this effect, it would be speculative to conclude that any mental illness Ms Frost suffers from would be exacerbated by publication of my reasons.

60. Ms Frost’s disability has been made public in the decision in Frost v TAFE NSW (No 2), if it was not widely known before. In those circumstances, there is little utility in the orders she seeks. Further, there is no evidence to support her claim that she will be treated as a “second class citizen” if her disability is known to others. Other factors which diminish any desirability of making a non-publication order include that Ms Frost has communicated information about the proceedings to third parties.

61. In Jordan v Audet [2016] NSWCATAP 22 at [28], the Appeal Panel was not satisfied that it was desirable to make a non-publication order for the following reasons:

1.   We see the scheme of the Civil and Administrative Tribunal Act as providing a presumption in favour of open hearings (and thus open reporting of the result of hearings) in this type of matter.

2.   There needs to be persuasive evidence to rebut that presumption.

3.   Here there is no evidence provided to justify the fears asserted by the respondent. There is only an assertion, which, while no doubt genuine is not rational. …

62. Those reasons are also relevant in this case. There is no evidence to support Ms Frost’s claim that disclosure of her name would adversely affect her. The evidence does not establish that Ms Frost’s concerns about disclosure of her name are rational, even though they are genuinely-held. In these circumstances, Ms Frost’s personal circumstances are not such that they outweigh the importance of the basic principle of open justice: see Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 at [14].

63. Ms Frost’s application for a non-publication order is refused.

ORDER

64. I make the following orders:

1. The name of the respondent is amended to State of New South Wales, Department of Communities and Justice.

2. The Tribunal dispenses with a hearing of the applicant’s recusal application and dispenses with a hearing of the applicant’s application for a non-publication order.

3. The applicant’s recusal application is refused.

4. The applicant’s application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the applicant’s name 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: 19 August 2019