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Publication restriction: These reasons must not be published on Caselaw until 28 days after the date of this decision.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

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).
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.
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”.
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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frost v TAFE NSW (No 2)

Details

AGLC: Frost v TAFE NSW (No 2) [2019] NSWCATAD 129
Case: [2019] NSWCATAD 129
Decision Date: 01 July 2019

CaseChat Overview and Summary

Frost brought an application against TAFE NSW seeking various orders, including an order prohibiting the disclosure of her name. The application was heard in the Civil and Administrative Tribunal of New South Wales. The primary legal issue before the Tribunal was whether an order should be made prohibiting the disclosure of Frost's name in the circumstances of the case. This involved considering the principles governing the power of the Tribunal to make confidentiality orders, particularly under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW).

The Tribunal considered the relevant statutory provisions and case law to determine the appropriate exercise of its discretion in making confidentiality orders. It examined whether there were compelling reasons to protect Frost's identity, including the potential for harassment, distress, or reputational harm, and whether the public interest in transparency and open justice weighed against such an order. Ultimately, the Tribunal found that the public interest in open justice and the need to maintain the integrity of the tribunal process outweighed the private interest in anonymity. The Tribunal concluded that there were no compelling reasons to justify the imposition of a confidentiality order in this case.

As a result of this reasoning, the Tribunal refused Frost's application for an order prohibiting the disclosure of her name. This decision reflects the careful balancing of privacy interests against the broader public interest in open justice and the proper functioning of tribunal processes.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.