Frost v TAFE NSW (No 2)

[2019] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Frost v TAFE NSW (No 2) [2019] NSWCATAD 129
Hearing dates:	On the papers
Date of orders:	01 July 2019
Decision date:	01 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	The application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of Julie Frost’s name, is refused.
Catchwords:	Practice and procedure – principles applying to power to make confidentiality orders
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Carroll v Tokdogan [2015] NSWCATAD 200 DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Category:	Procedural and other rulings
Parties:	Julie Frost (applicant) TAFE NSW (respondent)
Representation:	In person (applicant) Minter Ellison (respondent)
File Number(s):	2018/00161029
Publication restriction:	These reasons must not be published on Caselaw until 28 days after the date of this decision.

REASONS FOR DECISION

1. The President of the Anti-Discrimination Board referred to NCAT a complaint made by Julie Frost about TAFE NSW, alleging she had been discriminated against in the area of education on the ground of disability (the Complaint).

2. Since the referral of the Complaint, the Tribunal has made a number of procedural orders, including an order made on 18 March 2019 striking out parts of the Points of Claim filed by Ms Frost.

3. Pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), Ms Frost requested written reasons for the strike out order. On 12 April 2019, the Registrar provided TAFE and Ms Frost with a copy of the reasons for that decision and advised that it would be published on Caselaw. Ms Frost immediately emailed the Registrar demanding an explanation for the decision to publish the reasons and asserting that the foreshadowed publication would have the result of “stigmatising [my] mental illness publicly”.

4. The Registrar decided to treat Ms Frost’s email of 12 April 2019 as an application for an order prohibiting the publication of her name. In addition, the Registrar decided not to publish the reasons for the strike out decision on Caselaw until that application had been determined by the Tribunal.

5. For the reasons that follow, I have decided to refuse Ms Frost’s application for an order prohibiting the disclosure of her name in these proceedings.

Determination of the application for a non-disclosure order

6. On 30 April 2019, I made directions inviting the parties to make submissions about Ms Frost’s application for an order prohibiting the disclosure of her name in these proceedings (the non-disclosure order). Ms Frost did not file any submissions in answer to that direction. However, in correspondence sent to the Registrar about a range of issues, Ms Frost discussed the application for a non-disclosure order. The Registrar contacted Ms Frost and asked whether she wanted that correspondence referred to me for the purpose of determining the application for a non-disclosure order. Ms Frost stated that she did.

7. In addition, on 30 April 2019 I invited the parties to comment on the appropriateness of Ms Frost’s application for a non-disclosure order being determined without an oral hearing. TAFE consented to that course. Ms Frost did not comment on the issue.

8. Being satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions, and other material, provided to the Tribunal, I decided to dispense with the requirement imposed by s 50(1) of the NCAT Act to hold a hearing.

Power to make a non-disclosure order

9. The Tribunal has power to make the order sought by Ms Frost. Section 64 of the NCAT Act states:

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),

…

(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.

10. The principles governing the operation of the discretion to make orders under s 64 under were considered in DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92. In that decision, the Tribunal cited with approval State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, in which an Appeal Panel of one of NCAT’s predecessors, the Administrative Decisions Tribunal, considered in some detail the principles governing the exercise of the power conferred by s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW), which is broadly equivalent to s 64 of the NCAT Act. The Appeal Panel in Dezfouli summarised at [81] the factors relevant to the exercise of the discretion to make a non-disclosure order:

... (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.

11. The “presumption in favour of open justice” referred to by the Appeal Panel is a common law principle. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 Kirby P explained (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 ...

12. Commenting on that principle the Appeal Panel in Dezfouli stated at [61]:

[It] is unthinkable that the word ‘desirable’ in section 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.

Orders made on 26 September 2018 under s 64 of the NCAT Act

13. The current application is the second occasion in these proceedings where Ms Frost has applied for an order under s 64 of the NCAT Act.

14. At a hearing on 26 September 2018 to determine a number of interlocutory applications, I refused an application made by Ms Frost for an order prohibiting the publication and disclosure of her name. However, I decided to prohibit the publication of evidence relating to an incident involving Ms Frost: see, Order 4 made on 26 September 2018. I decided to make that Order because the subject incident had no apparent relevance to the issues required to be determined in the Complaint; it concerned a highly sensitive and personal matter and the publication of information about that incident was likely to cause Ms Frost considerable distress.

Is it desirable to make an order prohibiting the disclosure of Ms Frost’s name?

15. I understand Ms Frost to assert in an email sent to the Registrar on 12 April 2019, that the decision to publish the reasons for the strike out decision on Caselaw, was motivated by a desire to “punish” her for complaining about my role in the case management of the Complaint, and in particular, the strike out decision.

16. Doing the best I can from the available material, I understand Ms Frost to contend that if her name is disclosed in these proceedings her reputation is likely to be damaged and she will suffer distress. In addition, she contends that it will result in it becoming known that she has a disability, and as a consequence she will be stigmatised. Further, she appears to suggest that publication of the reasons is likely to damage her mental health. In this matter Ms Frost identified the subject disability which caused TAFE to discriminate against her as depression and anxiety (actual disability) and mental illness (presumed disability): see Frost v TAFE [2019], NCAT, Principal Member A Britton, 12 April 2019 at [8].

17. TAFE opposes the application for a non-disclosure order for the following reasons:

18. First, TAFE contends that exercising the power to make the non-disclosure order sought by Ms Frost would be inconsistent with the order made in September 2018 to decline to exercise that power.

19. Second, TAFE asserts that there is no evidence to support the assertion that a stigma is likely to attach to people known to suffer a mental illness.

20. Third, TAFE points out that Ms Frost initiated these proceedings. She is not a third party to the Complaint, involuntarily brought into these proceedings.

21. Finally, TAFE asserts that Ms Frost has acted inconsistently with the non-publication order sought by sending emails about these proceedings to numerous people, including the Independent Commission Against Corruption, members of NSW Parliament and TAFE’s insurer.

Should the power to make a non-publication order be exercised?

22. The power to make the order sought by Ms Frost can only be exercised if I am satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

23. Section 64 reflects the principle of “open justice” also contained in s 49 of the NCAT Act (proceedings will be held in public) and one of the objects of the NCAT Act (to ensure that the Tribunal is accountable and has processes that are open and transparent: s 3(f)). In Carroll v Tokdogan [2015] NSWCATAD 200, the Tribunal noted at [7]-[8]:

[Section 64 of the NCAT Act] establishes the norm that unless orders are made under s 64 of the NCAT Act, the names of persons involved in proceedings will be contained in the Tribunal’s written reasons for decision. As a consequence, the Tribunal commonly publishes reasons for decisions that contain facts that the parties may not wish to be published and that may disadvantage them or cause them to suffer embarrassment. The practice of the Administrative and Equal Opportunity Division of NCAT, unless otherwise ordered, is to permit its decisions to be published on Australasian Legal Information Institute and NSW Caselaw, which are freely and readily accessible through the Internet.

Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, in our opinion, the power contained in s 64 should be exercised sparingly.

24. Ms Frost apparently believes that the decision to publish the strike out decision on Caselaw is motivated by some ulterior motive. She is either unwilling or unable to accept the advice of the Registrar that the practice of the Equal Opportunity Division of NCAT is to routinely publish reasons for decision on Caselaw unless otherwise ordered by the Tribunal. (See NCAT Policy 2, Publishing Reasons for Decisions, March 2018 at [12]).

25. Understandably Ms Frost is concerned that the details of the Complaint might become known to members of her family, friends and the community at large. While, as TAFE points out, Ms Frost has not produced any evidence to support her assertion that, people with a mental health disability are likely to be stigmatised if the fact of their disability is revealed, that assertion is not far-fetched. It is common knowledge that some people with mental health issues report being treated adversely by sections of the community when the fact of their disability is made public.

26. Many of the emails and submissions sent by Ms Frost to NCAT throughout these proceedings contain colourful and intemperate language and implausible, indeed fanciful allegations. While this may indicate nothing more than a self-represented party who feels strongly about their case and who lacks detachment and objectivity, I am troubled by the possibility that Ms Frost may, as she asserts, suffer from a mental illness which might be exacerbated if the non-disclosure order is not made.

27. These proceedings must be fair, and be seen to be fair, to all parties. Despite the concerns raised by Ms Frost concerning the possible consequences of a rejection of her application, I have decided it would be inappropriate to depart from the norm of open justice. Central to that decision is Ms Frost’s actions in widely disclosing to non-parties the fact that she has made a complaint of unlawful discrimination against TAFE. Ms Frost has circulated material which goes further than merely criticising a government agency but contains serious allegations about individual staff and officers of TAFE. Whether there is any substance to those allegations remains to be determined. However, in circumstances where Ms Frost has widely circulated her account of events that are the subject of the Complaint, and raised issues which allege serious misconduct on the part of staff and officers of TAFE, it is important that the decision made by NCAT about the Complaint be determined in a fair and open way. It would be prejudicial to the individuals concerned, as well as to TAFE, to do otherwise.

28. While in certain circumstances, private interests may override the public interest in seeing justice done openly, “good reasons” are required to do so. Absent anything more than mere speculation about possible prejudice or stigmatisation by some unspecified persons in some unspecified way in some unspecified circumstances against Ms Frost, I am not satisfied that Ms Frost’s application reaches the threshold established in Dezfouli. I am not satisfied that it is desirable to exercise the power to make the non-disclosure order sought by Ms Frost.

29. My decision to decline to make that order does not disturb Order 4 made on 26 September 2018 prohibiting the disclosure of evidence about the incident.

Date of effect of the decision

30. The Registrar is requested not to publish on Caselaw, these reasons and the reason for the strike out decision until 28 days after the date of this decision.

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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: 29 July 2019