GP v Mackenzie & Ors
[2018] ACAT 96
•12 October 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GP v MACKENZIE & ORS (Appeal) [2018] ACAT 96
AA 26/2018
AA 33/2018
AA 27/2018
Catchwords: APPEAL – considerations in dealing with an appeal from the decision of the Original Tribunal hearing an interim application – whether decision is interim or final – whether appeal lays from interim decision – suppression, private hearing, non-publication orders sought – open justice – whether incorrect principle was applied – whether weight was given to irrelevant matters or whether insufficient weight was given to relevant matters by the original decision maker
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 39, 63, 77, 78, 79, 82
Civil Law (Wrongs) Act 2002 s 133
Human Rights Act 2004 s 12
Legal Profession Act 2006, s 425
Legislation Act 2001 s 146
Limitation Act 1985 s 33
Queensland Civil and Administrative Tribunal Act 2009 sch 3
Supreme Court Act 1933 s 37E
SA Civil and Administrative Tribunal Act 2013 s 3
Victorian Civil and Administrative Tribunal Act 1998 s 3
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) r 21
Cases cited:Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Chakravarty v Commissioner for ACT Revenue [2013] ACAT 11
Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378
Construction, Forestry, Mining and Energy Union v Australian
Competition and Consumer Commission [2016] FCAFC 97
Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118
Director General of Social Services v Chaney (1980) 47 FLR 80Guisida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Guisida Pty Limited v Commissioner for ACT Revenue (No 2) [2018] ACTSC 178Hall v Nominal Defendant (1966) 117 CLR 423
Hussain v Farhmand [2017] ACAT 107
Mansour v Dangar [2017] ACAT 49
Markarian v The Queen (2005) 228 CLR 357
The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2010] ACAT 19
List of
Texts/Papers cited: Shane Budden, ‘Balancing public and private interests in the exercise of judicial discretion.’ Queensland Law Society 24 August 2016
Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008 – 12’ (2013) 35 Sydney Law Review 674
Tribunal: Presidential Member E Symons
Date of Orders: 12 October 2018
Date of Reasons for Decision: 12 October 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 26/2018
AA 27/2018
AA 33/2018
BETWEEN: GP
Appellant
AND:
JOHN MACKENZIE
CAROL SHERMAN
JOHN DIMITRIOU
LIAM HAMBRIDGE
DANIEL LESKOVEC
Respondents
TRIBUNAL:Presidential Member E Symons
DATE:12 October 2018
ORDER
The Tribunal orders that:
1.Pursuant to rule 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2) GP is granted leave to rely on the additional evidence she set out in her application for appeal AA 26/2018 and in her application for appeal in AA 27/2018.
2.The applications for appeal in AA 26/2018, AA 27/2018 and AA 33/2018 are dismissed.
3.The decisions in XD233/2018 dated 21 June 2018 and 25 July 2018 and the decision in XD753/2018 dated 21 June 2018 are confirmed.
4.Pursuant to section 63 of the ACT Civil and Administrative Tribunal Act 2008 the tribunal orders in XD 233/2018 on 21 June 2018 are amended by adding the following Notation:
The Tribunal notes that:
Order 1 in XD 233/2018 dated 14 March 2018 is continued until further order.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
Introduction
1. The appellant (GP) and three of the respondents are neighbouring residents in a complex managed by a body corporate. The remaining two respondents are staff members of the body corporate manager for this complex and the body corporate manager for an adjoining complex.
2.GP has brought an action in defamation against each of the respondents[1] which has been set down for hearing on 25 October 2018. The matter has a long history and appears to have arisen over, among other things, correspondence and communications following the applicant’s placement of a table on public land adjoining the complex where she and three of the respondents reside and another complex.
[1] XD 233/2018
3.As will be seen in ‘Background’, below, the matter has taken up an extraordinary amount of time in the tribunal due to the sheer volume of applications for interim or other orders since the filing of the application commencing this action on 26 February 2018.
4. On 21 June 2018, Senior Member Meagher SC dismissed GP’s application in XD 753/2018 for interim or other orders that she be given leave to file a new claim against Daniel Leskovec and Liam Hambridge; that she be known in the proceedings as ‘GP’; that her address, email address and phone numbers be suppressed; that any information that tends to identify her be suppressed; that the hearing be in private and that there be a non-publication order.
5.On 21 June 2018 Senior Member Meagher SC also dismissed the application in XD 233/2018 for interim or other orders by three of the respondents, John Mackenzie, Carol Sherman and John Dimitriou, seeking the suppression of their names, addresses, emails, phone number and the dates and times of their availability.
6.On 25 July 2018 Senior Member Meagher SC dismissed GP’s application in XD 233/2018 for interim or other orders for non-publication and suppression of her name and of her address, that the hearing be held in private and the previous order in which she is known as GP be replaced by an order that the applicant be known as ‘G’.
The applications for appeal
7. GP filed an application for appeal (AA 26/2018), on 17 July 2018 in which she sought an interim or emergency order staying Senior Member Meagher SC’s decision of 21 June 2018 in XD 233/2018. GP also sought final orders that her address (as well as her name) be suppressed; a non-publication order in respect of the respondent’s response, or parts thereof and that the hearing be in private.
8.On 17 July 2018 GP filed a second application for appeal (AA 27/2018) from Senior Member Meagher SC’s decision on 21 June 2018 in XD 753/2018.
9. In AA 27/2018 GP sought interim or emergency orders staying the decision under appeal and suppression of her name, address and parts of the responses which are scandalous and/or in breach of previous suppression orders and privileged mediation outcomes and deliberations. GP sought final orders that the original orders be set aside and she be given leave to refile against Mr Leskovec and Mr Hambridge; her address be suppressed; the hearing be in private; her name be suppressed and a non-publication order.
10. On 14 August 2018 GP filed an application for interim or other orders in AA 27/2018 in which she sought orders:
1. That the appeal is allowed;
2. That the orders sought by the applicant in the application for appeal are made.
11.On 22 August 2018 GP filed a third application for appeal, AA33/2018, from Senior Member Meagher SC’s decision in XD 233/2018 on 25 July 2018. GP sought interim or emergency orders and final orders for a non-publication order; that the hearing be in private; that the applicant’s name and address be suppressed; that the applicant is known by a single letter and that the response of LINK is struck out and suppressed.
Summary of decision
12. The appeals were heard on 17 September 2018. GP represented herself. Mr Leskovec, Mr Hambridge and Ms Sherman represented themselves at the hearing. Mr Mackenzie and Mr Dimitriou had filed written submissions. They were out of the jurisdiction on 17 September 2018. At the conclusion of the hearing on 17 September 2018, the Appeal Tribunal reserved the decisions. This is the Appeal Tribunal’s decision.
13. For the reasons set out below, the Appeal Tribunal has found that each of the appeals was from an interlocutory decision and not from a final decision and dismissed each of GP’s applications for appeal. However, if the Appeal Tribunal has erred in that decision and given that the parties had all filed quite detailed submissions and the history of this matter in the tribunal, the Appeal Tribunal also considered the applicant’s grounds of appeal and found that GP did not establish that the original tribunal had made errors of fact or law that were sufficient to set aside the decisions on appeal.
14. In these reasons for decision the tribunal hearing these matters is referred to as the Appeal Tribunal. References to tribunal or ACAT in these reasons refer to the ACT Civil and Administrative Tribunal generally
Background to the appeals
15.On 26 February 2018 GP filed a civil dispute application (XD 233/2018) with the ACAT seeking compensation of $25,000 per respondent, John McKenzie, Carol Christine Sherman, John Bassilios Dimitriou, Liam Hambridge and Daniel Leskovec, for defamation and or malicious prosecution.
16.With that application GP filed a handwritten letter to the Registrar “asking for a suppression order in relation to this matter, prior to service”, which the tribunal treated as an application for interim or other orders. GP set out three reasons for seeking a suppression order, which I have summarised as follows:
(a)that there is a suppression order in relation to a related matter involving some of the parties;
(b)because the issues relate to GP’s residency, publication will breach GP’s privacy and safety, and
(c)the respondents already know GP by sight and residency as ‘GP’.
17.On 14 March 2018 the Tribunal determined this request for a suppression order prior to service and made the following orders:
1. Within 14 days the applicant is to file a redacted copy of the application and the interim application of 26 February 2018, in which her name is removed/redacted and replaced with “GP the tenant of [address],” or, on other than the first occasion, “GP”.
2. The Tribunal will serve the redacted version of this application, the interim application, and a listing notice for an interim hearing on the interim application.
3. The listing notice and the documentation shall list the applicant as “GP” pending the interim application.
18.On 28 March 2018 GP filed the redacted copy of her application in accordance with order 1 in the preceding paragraph.
19.On 30 April 2018 three of the respondents, John Mackenzie, Carol Sherman and John Dimitriou filed an application for interim or other orders seeking the suppression of their names, addresses, emails and phone numbers and their dates and times of availability.
20.The applicant’s interim application filed on 26 February 2018 and the respondents’ interim application were listed for hearing on 21 May 2018.
21.On 21 May 2018 the following orders were made in Chambers:
1. The hearing of the interim applications is adjourned for a period of 3 weeks, during which the applicant is to determine whether she wishes to proceed in this forum or commence proceedings in another forum. The applicant is to advise the Tribunal and the other parties of [GP’s] decision by close of business on Tuesday 12 June 2018.
2. If the applicant wishes to proceed in this forum, or fails to advise the Tribunal of [GP’s] decision by 12 June 2018, the interim applications will be re-listed.
22.On 5 June 2018 GP filed two applications:
(a)a separate civil dispute application (XD 753/2018) in which GP sought $25,000.00 for defamation against Daniel Leskovec and Liam Hambridge; and
(b)an application for the following interim or other orders in XD 753/2018:
(1) That the applicant is given leave to file a new claim against Daniel Leskovec and Liam Hambridge based on the material in the letter attached to XD 233 of 2018 and marked ‘E’.
(2) That the applicant is known in these proceedings as ‘GP’.
(3) That the applicant’s address and other personal details such as (GP’s) email address and phone numbers be suppressed.
(4) That any information that tends to identify the applicant be suppressed.
(5) That the hearing be in private.
(6) That there is a non-publication order.
23.On 14 June 2018 the Tribunal made the following orders in Chambers:
1. The application for interim or other orders filed on 5 June 2018 is listed for hearing and further directions on Thursday 21 June 2018 @ 10:00am.
2. The listing notice, application for interim or other orders and civil dispute application filed on 5 June 2018 shall list the applicant as “GP”.
24.On 21 June 2018 Senior Member Meagher SC heard the application for interim or other orders filed by GP on 26 February 2018, her application for interim or other orders filed 5 June 2018 and the first, second and third respondents’, John Mackenzie, Carol Sherman and John Dimitriou’s, application for interim or other orders filed on 30 April 2018. GP and each of the respondents appeared and represented themselves at the hearing. At the conclusion of the hearing Senior Member Meagher SC made the following orders:
(a)In XD 753 of 2018:
1. The interim application made by GP is dismissed.
It is noted
The Tribunal being of the view that this matter is not a new application but an interim application in matter XD 233/2018, the interim order in matter XD 233/2018[2] is extended to this matter but there is no further suppression order.
(b)In XD 233 of 2018
1. The application for suppression orders made by the First, Second and Third Respondents dated 27 April 2018 is dismissed.
2. The Tribunal is to serve the responses filed by the respondents to each other party.
3. The matter is listed for hearing on Wednesday 26 September 2018 at 10:00am.
[2] See [17] order 1 above
25.In XD 233/2018 directions were also made for the filing of further material prior to the hearing.
26.On 12 July 2018 GP filed a further application for interim or other orders in XD 233/2018 which variously sought:
(a)That the timetable for filing various material be varied and extended.
(b)That the respondents’ 29 page response received on or about 6 July 2018 be suppressed and subject to a non-publication order or that sections of the response be struck out.
(c)That the respondents file an amended response and not a response purported to be by a body (LINK) that is not a party to the proceedings.
(d)A non-publication order made in relation to this application and the application be suppressed, especially in relation to any references to an earlier case involving the applicant in which GP’s name and address and other identifying information was suppressed.
(e)A timetable is imposed and directions made in relation to the issue and return and hearing of objections of subpoenas.
(f)That the respondents provide the tribunal and the applicant with appropriate email addresses in order to facilitate communications.
(g)That Daniel Leskovec files a response in which he discloses the name of the person he claims in his response was responsible for publishing his letter to Mr Hambridge.
(h)That the applicant’s address is suppressed and there is a non-publication order in relation to the applicant’s address (as is the case in an earlier application to ACAT relating to the applicant’s tenancy in which LINK was a party) and that the hearing of this application is in private. That the previous orders in which the applicant is known as GP be replaced with an order that the applicant is known as ‘G’.
(i)That the respondents provide clear copies of the images contained in their responses or provide actual photos as well the name of the person who took the photos, for evidentiary purposes.
(j)That the respondents are restrained from further denigrating the applicant including to the registry.
27.On 19 July 2018 the tribunal made the following orders in XD 233/2018:
The Tribunal having:
(a) Reviewed the file in this matter and XD 753/2018;
(b) Noted the volume of correspondence between the parties and the Tribunal; and
(c) Noted the tone of the correspondence;
(d) Noted the increasing complexity of the legal issues raised; and
(e) Noted that the dispute is between neighbouring residents of a body corporate, and also involves staff members of the body corporate manager, all of whom must have some ongoing relationship;
The Tribunal has formed the opinion that:
(f) his matter is suitable for mediation;
(g) The subject matter to which the applications relate is likely to be resolved through mediation; and
(h) The parties would in any case benefit from mediation;
The Tribunal orders:
1. The subject matter of this application is referred to mediation on Wednesday 25 July 2018, the mediation is to follow immediately after the hearing of the interim applications at 10:00am; and
2. That the parties attend this mediation.
28.All parties represented themselves at the hearing of the interim applications on 25 July 2018 in XD 233/2018 and XD 753/2018. At the conclusion of the hearing Senior Member Meagher SC made the following orders:
1. The hearing listed for 26 September 2018 is vacated.
2. The matter is relisted for hearing on Thursday 25 October 2018 at 10:00am.
3. The Tribunal’s orders of 21 June 2018 are amended as follows:
(a)The applicant is to file all material with the Tribunal, on or before 15 August 2018;
(b)The respondents to files all material with the Tribunal, on or before 3 October 2018.
4. If the applicant wishes to issue a subpoena addressed to the Commissioner for Social Housing for production of documents, it must be filed with the Tribunal on or before 1 August 2018.
5. The applicant is to file any further material that is obtained under subpoena on which she intends to rely, on or before 19 September 2018.
6. The subpoena issued to Murlton Pty Ltd t/as ACT Strata Management Services is not set aside and may be answered by the production of the minutes, with the names of the persons attending the annual general meeting redacted. The authorized representative of ACT Strata Management Services is to produce the documents to the Tribunal on or before 1 August 2018.
7. The suppression order made in Tribunal matter RT 883/2017 applies to the parts of the Response filed by Mr Hambridge which refer to matter RT 883/2017.
8. The parties attending are directed not to disclose the surname of the applicant to anyone else pending further order of the Tribunal.
9. The respondents are to provide to the Tribunal two colour sets of the photographs contained in their response. Upon receipt of the photographs, the Tribunal will provide one set to the applicant as soon as possible.
10. In accordance with the Tribunal’s orders of 21 June 2018, all materials to be filed with the Tribunal and it will send a copy of the material to each other party.
11. The application for interim orders filed by the applicant is otherwise dismissed.
29.The parties attended mediation after the hearing on 25 July 2018 where the matter did not resolve.
30.On 17 August 2018 Daniel Leskovec filed an application for interim or other orders, which was heard on 13 September 2018, in which he sought payment of ACT Strata Management Services costs incurred in complying with the applicant’s subpoena in XD 233/2018.
31.On 22 August 2018 GP filed a further application for interim or other orders, which was heard on 13 September 2018, in which she sought an order that:
Tribunal member, Mr Meagher is disqualified from hearing XD 233 of 2018 or any further applications in that matter or related matters pertaining to the applicant.
32.At a directions hearing for each of the applications for appeal on 22 August 2018 the tribunal ordered that the hearing of AA 26/2018, AA 27/2018 and AA 33/2018 and the application for interim or other orders in AA 27/2018 commence on 17 September 2018. The tribunal also issued directions including a timetable for the filing of further written submissions and stated[3]:
The appeal is to proceed as a review of the decision or decisions the subject of the appeal, subject to the ruling of the Appeal Tribunal as to whether any additional documents identified by the appellant may be relied on by the appellant at the hearing of this appeal.
[3] Pursuant to section 82(b) of the ACAT Act and Rule 21(c) of the ACAT Procedure Rules 2009 (No. 2)
33.On 31 August 2018 all of the respondents filed a further application for interim or other orders which was heard on 13 September 2018 in which they sought:
That the entire case of XD 233/2018 and any/all associated matters be dismissed in its entirety and that the applicant be barred from lodging any further subsequent applications in relation to this matter and any of the listed respondents.
34.On 13 September 2018 Senior Member Meagher SC heard Daniel Leskovec’s interim application filed on 17 August 2018, the applicant’s interim application filed on 22 August 2018 and the interim application filed by all of the respondents on 31 August 2018. Senior Member Meagher SC refused GP’s application that he recuse himself, ordered that GP pay ACT Strata Management Services’ costs of $166.00 incurred in complying with the applicant’s subpoena and dismissed the respondents’ application dated 31 August 2018, seeking that the proceedings be dismissed. Senior Member Meagher SC also stated[4]:
So in relation to the application to disqualify myself, I refuse to disqualify myself but give leave to GP to raise with the appeal tribunal on Monday, 21(as said) September that application. In relation to the application by Mr Leskovec, in respect of costs, I make an order that the costs of complying with the subpoena, in the amount of the tax invoice, be paid by GP but that GP have leave to raise, by way of an appeal, if she so wishes that the matter on appeal on Monday, 21 September. …[5]
The appeal - legal framework
[4] Transcript 13 September 2018, page 9 lines 29-40
[5] Senior Member Meagher SC subsequently corrected this date to 17 September 2018
35.Part 8 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and Part 7 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2) (ACAT Rules) regulate the conduct of appeals in the Tribunal.
36.Section 79 in Part 8, of the ACAT Act states:
79. Appeals within tribunal
(1) This section applies if—
(a)the tribunal has decided an application (the original application ); and
(b)the original application was not an appeal from a decision by the tribunal.
…
(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
37.Section 82, in Part 8 of the ACAT Act, provides:
82. Handling appeals
An appeal tribunal may, as the tribunal considers appropriate, deal
with an appeal—
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
Principles applying to the conduct of an appeal
38.In Mansour v Dangar[6] (Mansour) the appeal tribunal set out the principles of law applicable to appeals within the tribunal. Presidential Member Daniel stated (omitting footnotes):
[6] [2017]ACAT 49 [17]-[23]
17. The provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) dealing with appeals within the tribunal are few, and briefly worded. The ACAT Rules add procedural guidance around the conduct of such appeals. Appeals are creatures of statute, and it is accepted that the legal principles developed in relation to appeals generally apply to appeals within the tribunal.
18. Under section 79(3) of the ACAT Act an appeal from a decision of the tribunal may be brought on a question of fact or law. This means that the appeal exists for the correction of error. Because of the statutory limitation to appeals on ‘a question of fact or law’ an inquiry into the existence of error is the initial focus of the appeal.
19. If an error is shown to have been made it is then necessary for that error to be material to the outcome in order for the appeal to be successful.
…
22. … for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.
23. …
24. Where an appeal is successful the question arises what orders may be made by the appeal tribunal. The ACAT Act does not set out the powers of the appeal tribunal. Rule 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) provides:
21.Appeals to tribunal—general powers
For an appeal to the tribunal, the tribunal—
(a) has all the powers and duties of the tribunal that made the order appealed from; and
(b) may draw inferences of fact; and
(c) may receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and
(d) may make an order confirming, amending or setting aside the order of the tribunal appealed from; and
(e) may make any other order it considers appropriate.
39.Refshauge J of the ACT Supreme Court referred to section 82 of the ACAT Act and to these powers in Guisida Pty Limited v Commissioner for ACT Revenue[7](Guisida) which was an application seeking leave to appeal from a decision of the appeal tribunal. Refshauge J granted leave and the appeal was heard by Elkaim J on 1 June 2018 and the decision, Guisida Pty Limited v Commissioner for ACT Revenue (No 2)[8] (Guisida No 2), was published on 21 June 2018. Refshauge J’s following observations in Guisida, below, remain applicable:
37. I see no reason to resile from or change my view about the proper meaning of s 82 of the ACT Civil and Administrative Tribunal Act as here expressed. Indeed, careful thought and a consideration of the purpose and meaning of an internal appeal strengthens my view that a wider and generous power is intended and not one which restricts original decisions from proper scrutiny.
38. Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be “manifest”, “obvious” or other than an error discernible by a proper assessment of the evidence and the law. I could find nothing in any parliamentary material, such as the relevant Explanatory Statements or the Parliamentary Speeches that suggested any different construction of the provision.
39. A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is “open” to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.
40. The evidence that permits a decision maker to draw a conclusion must have a character of reliability and reasonable substance; it must not be mere evidence, that it is simply what is put before the tribunal.
[7] [2016] ACTSC 275
[8][2018] ACTSC 178
40.The Tribunal adopts the above statements in Mansour and Guisida.
Preliminary issue
41.A preliminary issue that arises in this matter is whether the decision or order the subject of each appeal is an interlocutory or final decision or order.
42. Accordingly, GP was directed at the directions hearing on 2 August 2018 to identify, in a statement in writing, Senior Member Meagher SC’s orders or decisions appealed against and the Tribunal’s power to hear the appeal against these orders or decisions.
GP’s submissions
43.GP submitted that section 79 of the ACAT Act applies if the tribunal has decided an application which is identified in parentheses as the original application which was not an appeal from a decision by the tribunal. GP referred to subsection 79(3) of the ACAT Act:
A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
44.GP submitted[9] that the interpretation of ‘may’ is found in section 146 of the Legislation Act 2001:
(1) In an Act or statutory instrument, the word “may”, or a similar term, used in relation to a function indicates that the function may be exercised or not exercised, at discretion.
Note Function is defined in the dictionary, pt 1 to include authority, duty and power.
[9] Appellant’s submissions, filed 20 August 2018 at [5]
45.While conceding that, unlike the ACT Supreme Court Act 1933[10], neither section 79 nor the ACAT Act specifically provide for ‘appeals from interlocutory decisions’ GP submitted that ‘original application’ is not defined by the ACAT Act. She submitted that the Appeal Tribunal could look at other comparable Australian legislation when determining the meaning of ‘original application’. She compared the ACAT Act to section 3 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) which defines ‘application’ as application to the Tribunal; section 3 of the SA Civil and Administrative Tribunal Act 2013 (SACAT) which states “decision” of the Tribunal, includes a direction, determination or order of the Tribunal but, in prescribed circumstances, does not include an interlocutory direction, determination or order and Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) which defines ‘application’, ‘decision’ and ‘final decision’ as follows:
[10] s.37E(4) ACT Supreme Court Act 1933 Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge, or the associate judge, only with leave of the Court of Appeal.
“application” means an application to the tribunal under this Act or an enabling Act.
“decision” , of the tribunal—
(a) means—
(i)an order made or direction given by the tribunal; or
(ii)the tribunal’s final decision in a proceeding; and
(b) for chapter 7—see section 244 .
“final decision” , of the tribunal in a proceeding—
(a) means the tribunal’s decision that finally decides the matters the subject of the proceeding; and
(b) for chapter 2, part 7, division 4—see section 129.[11]
[11] Appellant’s submissions filed 20 August 2018 at [9]
46.GP submitted that the decision in XD 753/2018 was a final decision as it finally determined her right to file a fresh application against the two respondents, Mr Hambridge and Mr Leskovec. GP submitted that the nature of the application before the original tribunal was an application for leave under section 133 of the Civil Law (Wrongs) Act 2002; it was not an application for an interim order or interlocutory in nature such as a default judgment, and the legal effect of the decision was to deny her leave to re-file in the ACAT against the two respondents.[12]
[12] Appellant’s submissions filed 20 August 2018 at [17], [18], [19]
47.GP also submitted that the order of Senior Member Meagher SC in XD 233/2018 was a final decision as it finally determined GP’s right to have her address suppressed. Her application was made pursuant to section 39 of the ACAT Act which provides:
39. Hearings in private or partly in private
(1) This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
Note See s (5) in relation to competing interests.
(2) The tribunal may, by order, do 1 or more of the following:
(a)direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b)give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.
(3) The tribunal may make an order under subsection (2) on application by a party or on its own initiative.
(4) A person must not contravene an order under subsection (2) (b) or (c).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(5) For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private—
(a)to protect morals, public order or national security in a democratic society; or
(b)because the interest of the private lives of the parties require the privacy; or
(c)to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
48.GP submitted that the legal effect of the order in XD 233/2018 was to deny her a suppression order that was broader than the one that was made and to deny her the protection for her privacy and safety as provided for in section 39 of the ACAT Act.
49.In her written submissions GP referred to selected excerpts from passages from a decision[13] but did not provide the citation. The Appeal Tribunal has ascertained that this decision is a decision of the ACT Court of Appeal.[14] In that case the appellant made similar submissions to GP’s submissions in the present matter. The appellant in the Court of Appeal hearing submitted that the primary judge’s decision to dismiss the application for an extension of time pursuant to section 33 of the Limitation Act 1985 was a final decision because it finally determined the rights of parties in a principal cause of action between them. Murrell CJ found that the decision of the primary judge was an interlocutory decision. She said:
34. Whether a judgment is an interlocutory judgment or a final judgment depends upon the legal rather than the practical effect of the judgment: Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 (Carr) at 248 per Gibbs CJ. The question is whether the consequence of the order, as made, finally determines the rights of the parties in a principal cause of action: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443 per Windeyer J, Carr at 248, Bienstein v Bienstein (2003) 195 ALR 225 (Bienstein). A strike out order is an interlocutory order although the practical effect of the order may be to finally determine the proceedings: McColley v Commonwealth of Australia [2014] ACTCA 21. The position is otherwise if the order also provides that the proceedings are dismissed: Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148. The law concerning interlocutory and final judgments was discussed extensively by the Court Appeal in Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; (2012) 7 ACTLR 48 (Arrow).
35. Consistent with this approach, it is well settled that the refusal to extend the time for bringing proceedings is an interlocutory decision not a final decision. In Bienstein the High Court (McHugh, Kirby and Callinan JJ) said at [25] that the refusal to grant an extension of time was not a final judgment because the unsuccessful party could make a further application for the same relief, although the application might have very little prospect of success. In Hodgson v Dimbola Pty Limited t/as Towers Removals [2010] ACTCA 22 (Hodgson) the Court of Appeal rejected an argument that a refusal to extend the time to commence proceedings was a final judgment and held that it was necessary to obtain leave to appeal such a decision.[15]
[13] Applicant’s submissions 20 August 2018 at page 4, [14]
[14] [2016] ACTCA 33
[15] [2016] ACTCA 33
50.The Appeal Tribunal was also concerned to note that in the passage from Murrell CJ’s decision (paragraph 34 line 6 of that decision, see [49] above) which GP referred to in [14] of her submissions, she omitted the phrase from that decision, parties in a principal cause of action, from [34] in the Chief Justice’s decision when referring to Hall v Nominal Defendant. The omitted phrase is of particular relevance to the present matter.
51.Notwithstanding that the ACAT Act does not have provision to hear an appeal from interlocutory orders GP had referred to section 80 of the ACAT Act in her written submissions as giving the tribunal power to hear an appeal from an interlocutory order with the leave of the tribunal. At the directions hearing on 22 August 2018, the President drew GP’s attention to the fact that this is not what section 80[16] in the ACAT Act stated.
[16] Section 80 of the ACAT Act refers to dismissing appeals
52.At the hearing before the Appeal Tribunal on 17 September 2018 GP again submitted that the Appeal Tribunal’s power to hear an appeal from an interlocutory decision was found in section 80 of the ACAT Act. When questioned by the Appeal Tribunal GP acknowledged that the tribunal’s appeal power was found in section 79 of the ACAT Act.
53.GP also submitted[17]:
If this view is not correct then the applicant says that leave should be granted to appeal an interlocutory order because of the potential for harm to the applicant if the suppression order was not extended to her address or if there is not a non-publication order.
[17] GP’s submissions lodged 20 August 2018 in AA 26/2018, [20]-[22]
54.In her submissions GP also quoted from an article by Shane Budden, Ethics Solicitor of the Queensland Law Society however, unhelpfully, did not provide a copy of the article to the Tribunal. Nor did she attribute the quotation she relied on to the decision of Dowsett, Tracey and Bromberg JJ of the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97 (CFMEU & ACCC). The Tribunal located that 2016 article. It is entitled ‘Balancing public and private interests in the exercise of judicial discretion’.[18] The article referred at length to CFMEU & ACCC and stated:
[18] Shane Budden ‘Balancing public and private interests in the exercise of judicial discretion.’ Queensland Law Society, 24 August 2016
The decision is also significant in that it confirms the general rule that appeals from interlocutory exercises of discretion are far less likely to be granted. Practitioners acting for public bodies – especially in regulatory matters – are often faced with such appeals, and the court’s findings in that regard are instructive. The court noted (at 14):
“[14]The ACCC was also right in submitting that leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure: Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) (2011) 85 ACSR 531 at [11] (Mansfield and Foster JJ); Fuller v Toms [2012] FCAFC 155 at [16] (Siopis, Gilmour and McKerracher JJ). In Hogan v Australian Crime Commission (2010) 240 CLR 651, in a passage relied upon by the ACCC, the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) at [34] said this (emphasis added; citations omitted):
Appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution.” (emphasis in original)
Respondents’ submissions
55.In their written submissions and oral submissions the respondents submitted that they supported the orders made by Senior Member Meagher SC which are the subject of these appeals. They oppose GP’s applications for interim or other orders and for appeal and ask that they be dismissed.
Consideration
56.In 2010 the then Appeal President of the Tribunal, Appeal President Stefaniak, considered the competency of an appeal in The Legal Practitioner v Council of the Law Society of the Australian Capital Territory[19] (Legal Practitioner). In that case the legal practitioner had been found guilty of unsatisfactory professional conduct in relation to one matter and professional misconduct in relation to another matter and the Original Tribunal ordered that the applications be stood over for further hearing concerning any orders to be made pursuant to section 425 of the Legal Profession Act 2006. The legal practitioner appealed against the findings and order.
[19] [2010] ACAT 19
57.The Law Society contended that the appeal was incompetent as the findings thus far were interlocutory in nature and it remained for the Tribunal to subsequently make orders consequent upon those findings and that it is from those orders that an appeal would lie.
58.Appeal President Stefaniak described the words of the ACAT Act as [20] “clear and are to be given their normal everyday meaning.” He observed that section 77 of the ACAT Act provides for a referral of a question of law if a tribunal (the requesting tribunal) is dealing with an application, that is, during the proceedings. Section 78 refers to a request by the President for a correction to an order made on an application (the original application) to the tribunal. Section 79 of the ACAT Act applies if the tribunal has decided an application (with this Tribunal’s emphasis). He said:
49. In my view, the ACAT Act giving the section (79) its normal everyday meaning envisages appeals under section 79 being made only after the original application has been decided (see, section 79(1)). It seems to me to be the clear intent of the legislature that in the normal course of events appeals will be brought after the matter brought to the ACAT has been finally decided and orders made.
[20] Ibid at [38]
59.Appeal President Stefaniak referred to Director General of Social Services v Chaney[21](Chaney) and Justice Deane’s following comments:
In these circumstances, the question which arises under the first issue is whether the grant to the Court of jurisdiction to hear and determine an appeal on a question of law “from any decision of the Tribunal” is restricted to an appeal from a decision of the Tribunal which effectively disposes of an application for review or whether the “decision” in respect of which such an appeal may be entertained by the Court has a wider meaning such as, for example, to include any decision or ruling expressed or made by the Tribunal as a preliminary to, or in the actual course of, the hearing of the proceeding before it. The answer to that question depends upon the meaning to be given to the word “decision” in s.44(1) of the Act. That sub-section provides:
“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
…
It should be stressed that the issue is not whether, after the Tribunal has determined the application for review, an appeal lies to this Court on every ruling or adjudication upon a question of law which proves to be part of the structure of the ultimate decision. The issue is whether such an appeal lies, instanter, from a ruling or adjudication upon the road to ultimate decision regardless of whether that ruling or adjudication may prove irrelevant to the ultimate decision or whether further evidence, increased understanding or, indeed, plain reconsideration may lead to its reversal by the Tribunal itself before the ultimate decision is delivered.
…
The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.
As has been said, the ruling that the Tribunal had jurisdiction to hear the application for review simply asserted the Tribunal's jurisdiction to continue to hear the application on the merits. That ruling did not effectively dispose of the proceedings or any independent part thereof. It was not, in my view, a decision from which an appeal lay, on a question of law, to this Court pursuant to the provisions of s.44(1) of the Act.
[21] [1980] 47 FLR 80
60.As stated by Appeal President Stefaniak in the Legal Practitioner decision, the words of the ACAT Act are to be given their normal, everyday meaning. It is clear that section 79 applies if the Tribunal has decided an application unlike section 77 which provides for referral of a question of law if a tribunal is dealing with an application. Appeal President Stefaniak found that the clear intent of the legislature was that appeals will be brought pursuant to section 79 of the ACAT Act, in the normal course of events, after the matter brought to the ACAT has been finally decided.
61.The Appeal Tribunal refers to Justice Deane’s comments in Chaney above. Although he was considering the Administrative Appeals Tribunal Act 1975, and specifically the meaning given to the ‘decision’ in subsection 44(1), Justice Deane’s comments are compelling.
62.The Appeal Tribunal also found the statements (see [49] above) by Chief Justice Murrell compelling notwithstanding that she was considering subsection 37E(4) of the Supreme Court Act 1933 which provides that an appeal may be brought against an interlocutory order of the Court constituted by a single judge or the associate judge, only with leave of the Court of Appeal.
63.All of the applications heard by the Senior Member on 21 June 2018 and 25 July 2018 were applications for interim or other orders. (see [23] and [27][22] above).
[22] [27] 1. …after the hearing of the interim application
64.Murrell CJ’s statement (see [49] above) quoting from the High Court decision in Carr v Finance Corporation of Australia Ltd[23] - “whether a judgment is an interlocutory judgment or a final judgment depends upon the legal rather than the practical effect of the judgment” is highly persuasive. It is necessary to look at the legal effect rather than the practical effect of Senior Member Meagher SC’s decisions. The question is whether the consequence of the order or orders, as made on 21 June 2018 and 25 July 2018 finally determine the rights of the parties in a principal cause of action.[24]
[23] (1981) 147 CLR 246, 248 per Gibbs CJ
[24]Hall v Nominal Defendant (1966) 117 CLR 423
65.The appellant submitted that Senior Member Meagher’s SC decisions effectively disposed of an independent part of her applications, namely to file a fresh application against Daniel Leskovec and Liam Hambridge, and for suppression orders, a private hearing and non-publication orders.
66.During the hearing I said that[25] “my current thinking is that because of the fact that the order (of Senior Member Meagher SC) denied suppression that it’s more likely than not that I would find that it’s a final order, that it doesn’t fall into the category of interim.” However, upon further consideration of the legislation, the submissions and the case law which I have referred to above I am no longer of that view.
[25] Transcript of proceedings, 17 September 2018 page 48, lines 38-41
67.The Appeal Tribunal does not agree with GP’s submissions. In AA 27/2018 GP sought in application for appeal filed 17 July 2018 that the orders of 21 June 2018 be set aside or stayed and that she be given leave to refile against Mr Leskovec and Mr Hambridge and other orders. It is clear from reading the transcript of 21 June 2018 that the Senior Member considered section 133 of the Civil Law (Wrongs) Act 2002 and decided that this application was properly an interim application in XD233/2018.[26] That finding was clearly open to him on the material before him.
[26] Transcript of proceedings, 21 June 2018 page 2, lines 41-44; page 3 lines 1-27; page 5 lines 38-44; page 6 lines 1-44; page 7 lines 1-44 and page 8 lines 1-11
68.The Appeal Tribunal finds that Senior Member Meagher SC’s decisions did not finally determine the parties’ rights in the principal causes of action, namely the defamation claims. His decisions are interlocutory decisions and no appeal lies from them.
69.GP submitted (see [53] above) that if her submissions about the orders being final orders were not correct then leave should be granted to appeal an interlocutory order because of the potential of harm to her if the suppression order was not extended to her address or if there is not a non-publication order. GP did not refer to any power in the ACAT Act that would permit the Appeal Tribunal to do what she asks. The Appeal Tribunal finds that this submission is without merit.
Conclusion
70.For the above reasons the Appeal Tribunal dismisses each of GP’s applications for appeal.
71.However, if the Appeal Tribunal is wrong in finding that Senior Member Meagher SC’s decisions are interlocutory decisions and given the history of this matter in the tribunal and given the parties’ detailed submissions filed in the appeal, the Tribunal has also considered the grounds of appeal relied on by GP and sets out that decision below.
The appeals
AA 26/2018
72.GP identified the questions of law or fact in her application for appeal filed on 17 July 2018 as:
(a)The Senior Member gave insufficient weight to the privacy and safety of the applicant and too much weight to the principle of open justice by failing to suppress the applicant’s address and in dismissing the application for a non-publication order and a hearing in private; and
(b)The original tribunal took into account irrelevant matters (such as that the respondents already knew the applicant as the tenant of her address) and failed to take into account relevant matters, being the extent of harm to the applicant if her address was not suppressed or a non-publication order was not made.
73.In her application for appeal GP identified the additional evidence she wished to introduce as (a) the previous orders made by members of ACAT on 22 June 2017 and 14 December 2017 in residential tenancy proceedings involving GP in which her name and address were suppressed which had been annexed to her applications; and (b) two pages from Liam Hambridge’s response which she had annexed to her application for appeal.
74.At a directions hearing on 2 August 2018 GP was directed to give to the Tribunal and each respondent by 20 August 2018:
(a) A statement in writing identifying by reference to the Transcript the order (if any) appealed against or a decision made by Senior Member Meagher not to make an order suppressing her evidence (the Subject Order);
(b) A statement in writing identifying the Tribunal’s power to hear the appeal against the making of the Subject Order;
(c) A statement in writing setting out the error or errors of fact or law that she contends were made by Senior Member Meagher when making the subject order;
(d) A written submission in relation to each of those errors of fact or law, including references to relevant pages of the Transcript and any decisions of courts or tribunals on which she relies;
(e) A copy of each document on which she relied in the hearing before Senior Member Meagher on 21 June 2018 and on which she wishes to rely in the hearing of this appeal; and
(f) A copy of any additional document or documents on which she wishes to rely in relation to this appeal and a statement as to the relevance of each document to the subject of the appeal.
The appeal was listed for further directions on 22 August 2018.
75.GP complied with the directions on 20 August 2018 and filed her submissions in relation to AA 26/2018 and AA 27/2018. In her submissions she referred to ‘court’ or ‘courts’. The Appeal Tribunal understands her reference to ‘court’ or ‘courts’ in her submissions to be applicable to tribunals. GP identified a number of errors of law and fact as well as her arguments in these submissions.
76.The Appeal Tribunal has summarised GP’s submissions below. The summary relies substantially on her written submissions as supplemented by her oral arguments made during the hearing. Some parts of the written submissions have been directly quoted or paraphrased. GP submitted:
(a)The orders of 21 June 2018 do not expressly reflect the fact that the interim order on 14 March 2018 was made final. The failure to make an order is an appealable decision even if the court fails to formally record the failure as it is a failure to exercise a discretion or a failure to give an applicant procedural fairness by failing to hear an application.[27]
(b)The applicant was seeking a more general suppression order under section 39 of the ACAT Act than the interim order made on 14 March 2018 and Senior Member Meagher SC gave insufficient weight to her privacy and safety and too much weight to the principle of open justice by failing to suppress her address or make a non-publication order or an order for a private hearing.[28]
(c)Senior Member Meagher SC gave insufficient weight to article 17 of the International Covenant on Civil and Political Rights (ICCPR)[29] and too much weight to open justice in a matter which relates to a part of the applicant’s private life which is usually private, that is her residence which she has been able to protect by having her address suppressed on the Commonwealth Electoral Roll.[30]
(d)Senior Member Meagher SC took into account irrelevant matters, such as that the respondents already knew the applicant as the tenant of her address, and failed to take into account relevant matters, being the extent of harm to the applicant if her address was not suppressed or a non-publication order was not made.[31]
(e)A person’s name and address go hand in hand in many instances and to suppress one without the other is irresponsible and a derogation of a duty of the courts to protect the private lives of individuals who require privacy.[32]
(f)That a person’s name and address are permitted to be published, especially in a small claim and where the applicant’s address is suppressed on the electoral roll in order to enhance or promote open justice is not an established principle of law.[33]
(g)It is inherent in a court’s duty not to permit further or unnecessary harm to be able to be perpetrated against those who come to the courts seeking redress for harm caused to them.[34]
(h)Senior Member Meagher SC erred in taking into account the irrelevant factor of defamation being about a person’s name and that making a broader suppression order was not necessary because a person is only defamed by their name.[35]
(i)Senior Member Meagher SC applied the wrong test when deciding the application for a suppression order … he described the test as “unless there is a very good reason why not, there should not be any suppression orders so the presumption is that there won’t be …”[36] and
(j)The decision not to suppress GP’s address was manifestly unjust. The issue was the interests of GP’s privacy not whether ‘the essential nature of a defamation claim is you’ve got to be identified by defamatory material’[37]. Senior Member Meagher SC identified a wrong issue and ignored or at least gave insufficient weight to the legislation before him and the interests of the private life of the applicant and as such erred in law.[38]
[27] Applicant’s submissions filed 20 August 2018 at [4]
[28] Ibid at [5]
[29] Article 17 – (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation
(2) Everyone has the right to the protection of the law against such interference or attacks
[30] Applicant’s Submissions filed 20 August 2018 at [11], [12],[13]
[31] Ibid at [14]
[32] Ibid at [17]
[33] Ibid at [19]
[34] Ibid at [21]
[35] Ibid at [26]
[36] Ibid at [41]
[37] Transcript of proceedings, 21 June 2018 page 5, lines 4-6
[38] Applicant’s submissions filed 20 August 2018 at [43]
77.At the further directions hearing on 22 August 2018 the Tribunal directed each respondent to give to the Tribunal and each other respondent by 30 August 2018:
(a) Any written submissions in response to the appellant’s statement dated 19 August 2018 identifying the subject of the appeal (‘the Subject Decision’) and the Tribunal’s power to hear the appeal;
(b) Any written submissions in relation to any or all of the errors of law or fact referred to in the appellant’s statement; and
(c) Any written submissions in relation to whether the Appeal Tribunal should have regard to any or all of the additional documents identified and provided by the Appellant in her Application for Appeal; and
(d) Any written submissions in response to the Application for Appeal in AA 33 of 2018 filed on 22 August 2018.
AA 27/2018
78.GP identified the questions of law or fact in this application for appeal as:
(a)The Original Tribunal erred in finding that XD 753/2018 was an interim application in XD 233/2018 as the application for leave to re-file against Mr Leskovec and Mr Hambridge was an originating application with its own identifier;
(b)The Original Tribunal gave insufficient weight to GP’s privacy and safety and too much weight to the principle of open justice by failing to suppress her address and in dismissing the application for a non-publication order a hearing in private;
(c)The Original Tribunal took into account irrelevant matters (such as the respondents already knew the applicant as the tenant of her address) and failed to take into account relevant matters, being the extent of harm to the applicant if her address was not suppressed or a non-publication order was not made;
(d)The Original Tribunal erred in that it prejudged the claims without hearing all the evidence and potentially deprived the applicant of a fair and reasonable amount of compensation; and
(e)The Original Tribunal erred in fact in believing that the facts relating to XD 753 of 2018 were inexplicitly linked and based on the same facts as XD 233 of 2018.
79.In her application for appeal GP identified and annexed copies of the additional evidence she wished to introduce as:
(a)an email from the ACT Supreme Court registry regarding the procedure for filing an originating claim seeking leave to refile against respondents,
(b)part of Mr Leskovec’s response in XD 233 of 2018;
(c)page 4 of the response of various respondents in XD 233 of 2018; and
(d)the previous orders made by members of the ACAT on 22 June 2017 and 14 December 2017 in residential tenancy proceedings involving GP in which her name and address were suppressed.
AA 33/2018
80.GP identified the questions of fact or law in Senior Member Meagher SC’s decision on 25 July 2018 in XD 233/2018 as:
(a)The Senior Member erred in failing to grant a suppression order that specifically suppressed her address or her first name and in failing to grant a non-publication order and a private hearing.
(b)The Senior Member gave insufficient weight to the applicant’s privacy and safety and too much weight to the principle of open justice by failing to suppress GP’s address or make a non-publication order or an order for a private hearing.
(c)The Senior Member failed to take into account relevant matters such as:
(i) the applicant could be identified by her first name if other material was available such as her initials or information such as her profession or other cases that involve the applicant; and
(ii) the respondents had breached an earlier suppression order of her address by referring to it in their response to XD 233/2018.
(d)The Senior Member failed to exercise his discretion reasonably.
(e)The Senior Member erred in not striking out the response by LINK, which was not a party to the proceedings or parts of the response which are scandalous as they contain matters that arose in a privileged and confidential forum.
The respondents’ submissions
81.In accordance with the directions dated 22 August 2018 in all matters the respondents filed written submissions and GP filed her written submissions in reply.
82.In response to the applications for appeal the respondents submitted:
…we believe and support that the orders made in AA26, AA 27 and AA33 are correct as the member making the orders considered the relevant facts, information and nature of the case in exercising their discretion when making the decisions.[39]
[39] Submissions of Liam Hambridge, Daniel Leskovec, Carol Sherman and John Mackenzie filed 31 August 2018, page 1
83.In relation to AA 27/2018 the respondents submitted that it was the Senior Member who pointed out to GP section 133 of the Civil Law (Wrongs) Act 2002. The respondents submitted that XD 753/2018 was in relation to the same issue as XD 233/2018, it was not an originating application but was simply an attempt to divide the respondents and to bring the case within the jurisdictional limits of ACAT. The Senior Member’s decision should stand.[40]
[40] Ibid page 2 AA 27/2018
84.In relation to AA 33/2018 Daniel Leskovec submitted “what is the purpose of open justice if a complainant constantly reduces/alters their name? As respondents surely we have a right to know who is making allegations against us. If this is permitted where will it end? What’s to stop further vexatious appeals being sought until no name is listed for the applicant whatsoever and we have to refer to her with a breath of air?”[41]
[41] Respondents’ submissions filed 31 August 2018, page 4
85.Liam Hambridge submitted that “the appeal should not only be struck out but also highlights the absurdity of the case in question. All respondents were carrying out their required duties under the Unit Titles (Management) Act 2011 and were all following accurate procedures in bringing attention of evidenced rule breaches against the owner of the property, ACT Housing.”[42]
[42] Ibid
86.John Dimitriou submitted “…nowhere does she justify in the application or in any attachment, her reasons for the suppression of safety, irrevocable harm, personal violence, harassment, her disadvantage and our conduct. This is because there is none …” and “…I believe [the Senior Member] ruled correctly because there was no supporting evidence presented for the suppression of her address.”[43]
[43] John Dimitriou’s submissions filed 24 August 2018, page 2
87.All respondents submit that GP’s applications for interim or other orders and for appeal should be dismissed.
Consideration
88.The Appeal Tribunal considered the documentary evidence before Senior Member Meagher SC, the transcripts of 21 June 2018, 25 July 2018 and 13 September 2018 and the oral and written submissions of the parties at the appeal hearing including the extra evidence about questions of fact which GP annexed to AA 26/2018 and AA 27/2018 and which the Appeal Tribunal received pursuant to rule 21 of the ACAT Rules.
89.The Appeals are from discretionary decisions made by the Senior Member on 21 June 2018 and 25 July 2018.
90.An appellant does not have standing to an appeal, as of right in this jurisdiction. As stated above, an appellant is required by section 79(3) of the ACAT Act to identify a question of fact and law. The role of the Appeal Tribunal is limited to addressing errors in the original decision. In Australian Coal & Shale Employees Federation v Commonwealth[44] Kitto J stated as follows:
… the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [1936] HCA 40; (1936) 55 CLR 499, at pp 504, 505.
[44] [1953] 94 CLR 621, [10]
91.An appellant cannot merely request the re-exercise of discretion. The appeal Tribunal in Chakravarty v Commissioner for ACT Revenue[45] described the nature of the jurisdiction in relation to discretionary decisions as follows:
It is well recognised that an appellate tribunal should not disturb a discretionary decision as there is a presumption that the discretion was exercised correctly and should therefore be affirmed unless clearly wrong. It is not sufficient to set aside a discretionary decision simply because another view could have been taken or another view reached.
[45] [2013] ACAT 11, [43]
92.In a more recent appeal decision of Hussain v Farhmand[46] the appeal tribunal reproduced the original tribunal’s unpublished reasons for decision given on 31 May 2017[47] in which President Neate stated:
It is not uncommon for an unsuccessful party to proceedings in a court or tribunal to feel aggrieved, particularly if the reasons for decision suggest or state that their evidence was not believed and the evidence of one or more other persons was believed. That is why judicial and quasi-judicial systems provide an appeal process.
However, the appeals process is not open-ended. It is understandable that rules apply to regulate it otherwise there would be no end to litigation and no certainty in the outcome of any particular case.
[46] [2017] ACAT 107
[47] In which the tribunal considered which decisions Mr Hussain wanted to appeal and the grant of leave to appeal out of time.
93.It is apparent from the High Court decision in Markarian v The Queen[48] that it is not enough to overturn a discretionary judgment that the appeal judges would have weighted considerations differently to the primary judge. Barker, Katzmann and Beach JJ stated at [31] of Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd:[49]
Treating errors about weight alone as a sufficient basis for setting aside a discretionary judgment may be conducive to an appellate court taking the impermissible approach of finding error merely because it would have weighted various factors differently from the primary judge and, as a consequence, come to a different result. As Dixon, Evatt and McTiernan JJ observed in House v The King itself and as seven judges of the High Court emphasised in their joint decision in Lowndes v The Queen (1999) 195 CLR 665 at [15], an appellate court may not substitute its own opinion for that of the primary judge merely because it would have exercised its discretion differently.
[48] (2005) 228 CLR 357 at [25], [27], [28] Gleeson CJ, Gummow, Hayne and Callinan JJ
[49] [2015] FCAFC 118
94.Turning to the present appeals, the Appeal Tribunal will consider the three applications for interim or other orders and for appeal together. GP, herself, said that both appeals AA 26/2018 and AA 27/2018 “have sort of morphed into one”[50] and “AA33 kind of morphs into this one”.[51]
[50] Transcript of proceedings, 17 September 2018 at page 14, line 30
[51] Ibid at line 35
95.Further, each of the applications primarily allege the same or very similar errors which may be summarised as:
(a)The Senior Member erred in not making the wider suppression order sought, the non-publication order and an order that the hearing be in private;
(b)The Senior Member failed to exercise his discretion reasonably;
(c)The Senior Member gave insufficient weight to relevant matters, namely GP’s privacy/safety and too much weight to ‘open justice’; and
(d)The Senior Member took into account irrelevant matters.
Additionally GP submitted the Senior Member erred in:
(a)Finding XD 753/2018 was inexplicitly linked and based on the same facts as XD 233/2018;
(b)Prejudging the claim without hearing the evidence;
(c)Not striking out LINK’s response in XD 233/2018; and
(d)Giving insufficient weight to article 17 of the International Covenant on Civil and Political Rights.
96.Early in the hearing of the applications for appeal the Appeal Tribunal asked GP what evidence she had provided to the Senior Member in the hearings on 21 June 2018 and 25 July 2018 in support of her various applications for suppressing her address, her first name, for a non-publication order and for an order that the hearings be in private.
97.GP said that she had annexed a handwritten letter to her first application filed on 26 February 2018 in which she sought to have her name suppressed from the respondents[52] prior to service, and that letter and the tribunal’s order dated 14 March 2018 which included the following order:
1. Within 14 days the applicant is to file a redacted copy of the application and the interim application of 26 February 2018, in which her name is removed/redacted and replaced with “GP the tenant of (address),” or, on other than the first occasion, “GP”.
[52] Ibid page 20, lines 43-44
were before Senior Member Meagher on 21 June 2018 and 25 July 2018. Earlier orders of the tribunal in its residential tenancy jurisdiction suppressing GP’s name and address dated 22 June 2017 and 14 December 2017 were also before the Senior Member at both hearings. GP also told the Appeal Tribunal that she had answered the Senior Member’s questions about her reasons for wanting the suppression orders, the non-publication order and the order for the hearing being in private.
98.The Appeal Tribunal has considered the transcript of the proceedings on 21 June 2018. GP told the Senior Member that the majority of the respondents don’t know her full name. Because she has lived around them they obviously know her first name but GP said “I’m entitled to my privacy, my name, my address is suppressed from the electoral roll for safety reasons. I have a post office box for privacy reasons.”[53]
[53] Transcript of proceedings, 21 June 2018, page 4 lines 20 - 24
99.Senior Member Meagher SC asked GP: [54]
SM:What’s the reason for suppression of your address?
GP replied:
GP:As a result of something in my professional duties in the past. I was attacked on line and targeted by people on social media. I’ve had to go through a lot of court proceedings to get material on the internet taken down. Some of those people made very derogatory posts about me including some threats, one threaten(sic) of a firearm, even throughout those court proceedings which went for many, many years my address was not provided and (indistinct) address. On court documents my name was not suppressed, my name wasn’t suppressed, my address was but (indistinct) situation where (indistinct) so it’s all about where I live, it’s all about, you know, what’s happening in (indistinct) residents, so it’s all about where I live (indistinct) what’s happening (indistinct) place, me as a tenant. Yes, so ---
[54] Transcript of proceedings, 21 June 2018, page 4 lines 27-44; page 5 lines 1-6
100.The following exchange took place:
SM: You’re probably aware that there’s a strong body of authority at the highest level that advocates open justice and that there should be, unless there’s a very good reason why not, there should not be any suppression orders so the presumption is that there won’t be. If there is a genuine fear that you have for your safety in respect of the disclosure of your address, one that you’ve been able to persuade the electoral commission of, and it sounds fair enough that your address should be suppressed, the essential nature of a defamation claim is you’ve got to be identified by the defamatory material ---
…
SM: I frankly don’t understand why there should be a suppression order. I understand you want one.
GP: Yes.
SM: I’m not inclined to give one. If you’ve got a good reason to do with safety or some other aspect of it, I’d listen to that but ---
GP: That is what I’m saying, that is why my address is suppressed on the electoral roll.
SM: But your name doesn’t tell people where you are, does it?
GP: Well, you know, just the fact that I was attacked on line and my name was – not identified by my name, it opened me up to further attacks even in my residential area. Where you live is supposed to be private, it’s supposed to be somewhere where you can be safe.
SM: Just put that to one side. I’m not going to close the court. …[55]
…
SM: …in relation to the application regarding non-publication, to the extent that there is a non-publication order that’s already been made in the existing proceedings, that order will apply to these proceedings. I don’t intend to widen that or to add to that. If I was deciding the matter afresh I would not make a non-publication order but because there is one already I don’t intend to interfere with that.
GP: My name is suppressed.
…
SM: So whatever that order is made in respect of this matter and I don’t do that because I necessarily think that it’s appropriate or necessary but only so as not to unsettle what has already been done and that can be revisited at a later time if need be.[56]
…
SM: And it is in the public interest if there is some prejudice being caused to you by doing it. I am not persuaded that there is, but I am prepared to extend it to the extent that Senior Member Robinson had previously in respect of calling you “GP”. Frankly, a defamation by its very nature is one whereby you claim you have been identified by the defamation and people think less of you. And how will people think less of you if they do not know who you are. So it is really a circuitous argument.[57]
[55] Transcript of proceedings, 21 June 2018 page 5, lines 16-37
[56] Ibid page 13 lines 39 -15
[57] Ibid page 46 lines 24-30
101.GP was the applicant for the suppression orders, the non-publication orders and for an order that the hearing be in private yet she provided very little first-hand and documentary evidence that should have been in her possession or able to be obtained by her to support these applications.
102.In response to questions from the Appeal Tribunal GP said that she did not provide evidence of her correspondence with the Electoral Commission and their response to her request to suppress her address on the Electoral Roll to either the tribunal on 14 March 2018 or to the Senior Member on 21 June 2018. GP said: “I just told him.”[58]
[58] Transcript of proceedings, 17 September 2018, page 21, at line 25
103.The following exchange took place at the hearing on 17 September 2018 in relation to the evidence she gave to the Senior Member about the Electoral Commission suppressing her address: [59]
[59] Transcript of proceedings, 17 September 2018, pages 22, 23,24
AT: I understood there was some evidence that you may or may not have presented to the Electoral Commission and you referred to social media ---
GP: The Electoral Commission ---
AT: ---and threats made on social media?
GP: That’s right, that was my application to them and, I mean, I wasn’t asked to give evidence. Mr Meagher asked me why I wanted the suppression order.
AT: Yes.
GP: And I said this is why, I’ve been attacked on line, and there were threats made and firearms ---
AT: Did you tell him when those threats were?
GP: He didn’t ask me. I just told him and he didn’t ask.
AT: All right, maybe he didn’t ask you but what I’m trying to work out is, I was surprised when I saw that you had been given leave to or you were given the opportunity to seek leave to rely on fresh evidence.
GP: Yes.
AT: That you didn’t provide evidence of those threats in whatever form that they took, and you didn’t provide anything from the electoral office.
GP: Well, I didn’t because Mr Meagher didn’t ask me at first instance.
AT: Yes, but he’s not running your case, you’re running your case.
GP: Yes, but he was hearing the application, though.
AT: Yes, but you’re running the case and as he noted in the transcript, you are legally – you have legal qualifications, as I understand it. So, one would expect a person to come along and say, “This is why I want – this is the first hand evidence.”
…
AT: I note that you said to Mr Meagher, that you have a post office box.
GP: That’s right.
AT: That you got that because you didn’t want to give out your residential address to people.
GP: Yes, indeed. Yes.
AT: But that’s just one example. I mean, you’re saying, “Yes, I’ve got – I’ve been able to have my address suppressed in the electoral office, on the roll. And I was able to do that because either I had a suppression order from another court, or, since some proceedings happened, I’ve been threatened.” I mean, that’s what I understood.
GP: No, the issue was that my address was suppressed on the electoral roll for privacy and safety reasons because you can make an application under Commonwealth legislation. The basis of that – and I told Mr Meagher –
AT: Well, you just said that because there were threats.
GP: That’s right, and if they want – this was in relation to these proceedings. The threats were published on line from – the actual threat in relation to the shotgun was published – first published in about 2010, but the online material, some of which was highly offensive, is what the courts described it, highly offensive and degrading, some judicial officers in the ACT Supreme Court and the ACT Magistrates Court described it, were published from about 2005 until 2013 It was very extensive. It was defamatory, as well as highly offensive and degrading and, in some cases, threatening; a threat involving a shotgun.
…
GP: Well, I just reiterate that I gave, you know, I wasn’t required to give evidence but I did bring up this issue of my address being suppressed and the tribunal member seemed to accept that, so I didn’t think there was any ---
AT: Did you produce any corroborating documentation or ---
GP: Well, no, because he didn’t, you know, it didn’t seem to be something I had to.
…
AT: I mean, he’s not running your case.[60]
…
AT: One of my concerns, you know, I don’t know, you said that that information was published between 2005 and 2013, and that you went to the Electoral Roll in or about 2010.
GP: No. No, just recently I went to the electoral roll. I actually swore an affidavit in about, or a statutory declaration about 2013 and I thought I’d provided it to the electoral roll but I hadn’t, and more recently, just in the last six months I looked – I found my electoral roll folder, and the affidavit was still there, so it’s only in the last six months that I’ve been to the electoral roll and had my address suppressed on the basis of the affidavit that I swore in 2013. And it related to the material that was online.
…[61]
[60] Transcript of proceedings, 17 September 2018, page 50
[61] Transcript of proceedings, 17 September 2018, page 53, lines 13-23
104.The Appeal Tribunal was surprised that, given GP’s legal training and her acknowledgement that she was a lawyer[62] that she had not better prepared her case when seeking the interim or other orders on 21 June 2018. She seemed to justify the way she ran her case by telling the Appeal Tribunal that the Senior Member had not asked her the questions which had troubled the Appeal Tribunal.
[62] Ibid page 24, line 16
105.The Appeal Tribunal has already noted that GP’s application for interim or other orders in AA 33/2018 seemed to seek similar orders to her earlier applications in AA 26/2018 and AA 27/2018. Notwithstanding that she had not been successful in obtaining these orders on 21 June 2018 and the Senior Member had stated at that hearing in relation to GP’s and the respondents’ applications for suppression orders:
In relation to the suppression order, I am not minded to make any further suppression order, unless you can tell me that there is irretrievable harm that can be caused by not doing it.[63]
[63] Transcript of proceedings, 21 June 2018, page 46, lines 1, 3-6
GP still did not provide corroborative evidence of such harm to support her applications pursuant to section 39 of the ACAT Act at the next hearing on 25 July 2018.
106.It was not until late in the Appeal Tribunal hearing that GP appeared to appreciate that she should have provided the original tribunal with, at a minimum, a copy of her statutory declaration which she provided to the Electoral Commission in 2018 when applying for the suppression of her address. Nor did she provide confirmation that her address had been suppressed by that Commission. Apart from the two earlier tribunal orders in which her name and address was suppressed there was simply no other evidence to corroborate her own statements as to why the suppression orders GP sought should be made. GP belatedly sought that the Appeal Tribunal allow her to obtain this evidence from the Electoral Commission towards the closing stages of the hearing.
107.The Appeal Tribunal denied GP’s request. Directions made on 2 August 2018 directed GP to give to the Tribunal and each respondent by 20 August 2018 a copy of any additional document or documents on which she wished to rely in relation to the appeal. Further Directions were made on 22 August 2018 (see [32] above). GP did not give the tribunal any documentation from the Electoral Commission in compliance with the Directions. As a result the respondents were denied the opportunity provided to them in Direction 2(a)(3) made on 22 August 2018[64] to make any submissions to the Appeal Tribunal in regard to such documents.
[64] Any written submissions in relation to whether the Appeal Tribunal should have regard to any or all of the additional documents identified and provided by the Appellant in her Application for Appeal
108.Open justice is a fundamental aspect of the common law and the administration of justice.[65] The High Court said in Commissioner of the Australian Federal Police v Zhao[66] that “the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.” The Appeal Tribunal is not satisfied that the Senior Member gave too much weight to ‘open justice’. It was appropriate that he raise the open court principle given that GP, with a dearth of evidence, and at one stage some of the respondents, were pursuing a number of applications seeking suppression orders.
[65] Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008 – 12’ (2013) 35 Sydney Law Review 674
[66] Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44]
109.The Senior Member’s findings and decisions were clearly open to him on the very limited evidence GP provided. Section 39 of the ACAT Act is a discretionary section. GP referred the Appeal Tribunal to section 146 of the Legislation Act 2001 and submitted (in [44] above) that the word ‘may’ used in relation to a function indicates that the function may be exercised or not exercised, at discretion. In the present matter the Appeal Tribunal finds that the Senior Member weighed up whether the right to a public hearing was outweighed by GP’s competing interests based on the material before him and correctly exercised his discretion not to make the suppression, non-publication orders and an order for a private hearing GP sought. The Senior Member was not running GP’s case contrary to what GP appeared to have thought.
110.The Appeal Tribunal is not satisfied, from reading the transcripts of both hearings on 21 June 2018 and 25 July 2018 and from considering GP’s detailed written and oral submissions and the respondents’ detailed written and oral submissions for the above reasons that:
(a)the Senior Member erred in not making the wider suppression order sought, the non-publication order and an order that the hearing be in private;
(b)the Senior Member failed to exercise his discretion reasonably;
(c)the Senior Member gave insufficient weight to relevant matters, namely GP’s privacy/safety and too much weight to ‘open justice’; and
(d)the Senior Member took into account irrelevant matters.
111.The Senior Member did continue the order made by Senior Member Robinson on 14 March 2018 and explained his reasons why. On 21 June 2018 the following exchange took place:
SM: So, so far the extent of what I have ordered is that in respect of the new matters that you have raised that the suppression order that was made in the first of the defamation matters is extended to this.
GP: Yes, okay.
SM: And all that does is to redact your name.
GP: That is right.
SM: And identify you by your initials and as a tenant. That is all it does.
GP: I know.[67]
And later in the transcript the Senior Member stated:[68]
SM: I am not going to revisit what I have said. What I have said is to the extent that there is a suppression order in matter number 233 of 2018, it extends to the matter 753 of 2018. We have identified that it is an order made by Senior Member Robinson on 14 March 2018 and that is it. That is all I am going to do.
[67] Transcript of proceedings, 21 June 2018 pages 42, lines 42-44, page 43, lines 1-11
[68] Ibid page 46 lines 39-43
112.While the order does not appear on the XD 233/2018 engrossed order it is included in XD 735/2018 as a Notation as is the Senior Member’s decision that XD 753/2018 was not a new application but an interim application in XD 233/2018. The Appeal Tribunal is not satisfied from reading the transcript of the hearing on 21 June 2018 that the Senior Member made the interim order of 14 March 2018 a ‘final order’ as GP submitted. The Senior Member continued the interim order of 14 March 2018. The Appeal Tribunal is not satisfied that the Senior Member erred or failed to exercise his discretion to continue this order as GP submitted in [76](a) above. This is an appropriate instance for applying the ‘slip rule’ in Section 63 of the ACAT Act. For the sake of completeness the Appeal Tribunal will order that the orders dated 21 June 2018 in XD 233/2018 be amended by including the following Notation pursuant to section 63 of the ACAT Act:
Order 1 in XD 233/2018 dated 14 March 2018 is continued until further order.
113.The Senior Member also directed on 25 July 2018 “that the parties in the room not to disclose to anyone else the surname of GP.”[69] The tribunal’s orders dated 25 July 2018 included, inter alia:
7. The suppression order made in Tribunal matter RT 883/2017 applies to the parts of the Response filed by Mr Hambridge which refer to matter RT 883/2017.
8. The parties attending are directed not to disclose the surname of the applicant to anyone else pending any further order of the Tribunal.
[69] Transcript of proceedings, 25 July 2018, page 54, lines 5-6
114.The Tribunal now turns to the other grounds for appeal summarised in [95] above.
Finding XD 753/2018 was inexplicitly linked and based on the same facts as XD 233/2018; and
Prejudging the claim without hearing the evidence
115. The Appeal Tribunal has already considered this above (see [67]). It is satisfied that on 21 June 2018 the Senior Member did give proper consideration to GP’s application to commence fresh proceedings against two of the respondents named in the earlier proceeding. The following exchange took place:
SM: The substantive application that you have is for leave …
---to issue new proceedings against two people that you’ve already sued for the same matter.
GP: Well I started it. I started an action, it hasn’t progressed very far, and the whole reason for me doing it is that because the court advised that – the Tribunal advised that the maximum claim was $25,000 but I couldn’t claim $25,000 against each respondent so because the original claim contained several distinct publications, I though rather than take this to another court and start all over again and ask for leave in the Magistrates’ Court or the Supreme Court, I would just ask the court for leave to split the claims. I mean XD 233 already still contains probably three distinct – other distinct publications but I’m willing to accept jurisdiction(indistinct) basically refile (indistinct).
SM: You need leave under section 133 of the Civil Law (Wrongs) Act.
GP: That’s right.
SM: That requires that you not have more than one proceedings in respect of the same matter against the same people.
GP: Well you need leave basically, yes.
SM: The reason behind that is the age-old presumption or public policy of the courts not to encourage multiplicity of actions.
GP: That’s right.
SM: And the legislation, the Civil Law (Wrongs)Act enacts the uniform defamation law throughout Australia as a specific intention to restriction, not only in relation to a n umber of matters but also that you can’t have more than one case in respect of imputations arising from the same ---
GP: The same publication, that’s right. This wouldn’t happen in this case because they’re distinct publications.
SM: As I understand it, the reason that you advocate that there should be a relaxation of that rule, which presumably involve you in discontinuing against them in respect of the first matter and proceeding (against) them in this matter is because you would otherwise be not entitled to claim $25,000 against each person.
GP: That’s right and because I’m unaware of this point of the extent of the publication, the dissemination of the material despite quite extensive efforts I’ve been un able to ascertain that but you know, I suppose at any stage down the track if I found out the minutes of the AGM, minute claim 93 had been published all over the – internet all over the world, I suppose at that stage I’d probably be able to make an application to a higher court but, you know, I can’t see that – I hope that hasn’t happened and I hope it’s not going to happen (indistinct).
SM: There’s a lot of guidance in the cases about this, one in which you were in, but as I understand it, you have to have an arguable case as to why that ought to be considered and the arguable case you’d be advancing is in respect of each matter that you’re likely to get as much as $25,000 in each matter and that you’ll certainly get more than $25,000 if you multiply all the matters together. That’s your argument?
GP: I’m not doing that though.
SM: But that’s not – briefly having looked at the material you commenced proceedings on, it’s a small matter. It may be circulated more widely than you think but it’s basically a matter of interest to a very narrow number of people, the circulation is necessarily small. The defamation, whatever it is, it’s not clear to me what it is, but I assume there is something about which people might think less of you because of what’s said in any of the material, appears to be issues on occasions of qualified privilege. There may be arguments that defence can’t run but it’s a very small matter, and frankly, on the basis of the information that I’ve seen, there is no arguable case that you’ll get as much as $25,000 against all of them together.
GP: Well, there are other reasons why (indistinct) and I say that’s to limit the harm to me by the cases being heard together because it involves two different unit plans ---
SM: The case will be heard together no matter what you do with the proceedings. There’s no doubt about that. Either they’ll be consolidated or they’ll be heard together. They’re inextricably linked. The factual matrix behind them is effectively one thing leads to another. So your claim is the three individuals from one of the strata bodies complained to someone else and they then forwarded it on and that’s your complaint.
GP: They’re still distinct publications and if I’d – you know, I would have been entitled to make each claim.
SM: But you didn’t.
GP: Well I didn’t because I didn’t realize and the Tribunal didn’t reject my application.
SM: It’s not for the Tribunal to give you legal advice about ---
GP: Well not legal advice but they could have requisitioned it and said, “You can’t do this” when they adjourned it.
SM: It’s not a matter of requisition. You’re perfectly entitled to bring the one action against a number of defendants, alleging separate causes of action.
GP: And, you know, I don’t know whether you’re going to hear the case, I’d submit, that would be like prejudging the situation.
SM: No, it’s not.
GP: If you’re saying I’m only entitled to $25,000 ---
SM: You need to have an arguable case and on the basis of anything you produced so far, you don’t.
GP: Well I submit that I do. I mean letters to my neighbor are not qualified (indistinct), letter from ---
SM: It’s possible, it’s possible that there are matters which technically amount to unjustified offences of defamation.
GP: And one letter from ---
SM: It’s not overly clear but it’s possible that’s the case.
GP: A letter from one unit plan to another that’s sent to my landlord and it has nothing to do with my tenancy, isn’t qualified ---
SM: There isn’t anything in the material you provided that indicates there’s any realistic possibility that you’ll have a problem about the amount, the quantum of the claim. There isn’t any reason, as a practical matter, why the matters would ever be heard separately, it’ll always be heard together.[70]
[70] Transcript of proceedings, 21 June 2018, page 5, lines 38-44; page 6, lines 1 -44; page 7 1-44; page 8, lines 1-41
116.The Appeal Tribunal is not satisfied that the Senior Member erred in finding that XD 753/2018 was inexplicitly linked and based on the same facts as XD 233/2018. That finding was clearly available to him at the hearing, as the above excerpt from the transcript shows.
117.The Appeal Tribunal noted that some of the Senior Member’s observations in this excerpt were forthright but it is not satisfied that these observations amounted to prejudging GP’s claim. The Appeal Tribunal is not satisfied that the Senior Member erred.
Not striking out LINK’s response in XD 233/2018
118.Senior Member Meagher SC did not strike out the response; instead he noted that Mr Hambridge had filed a response and attached the document to it which happened to have a LINK letterhead. The Senior Member focused on GP’s concern with the response which she described as the references in it which she alleged amounted to breaches of the suppression orders in the residential tenancy matters.
119.The Tribunal finds that the Senior Member followed the objects and principles of the ACAT Act, which include ensuring that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; ensuring that applications to the tribunal are resolved as quickly as is consistent with achieving justice and ensuring that decisions of the tribunal are fair;[71] and that the procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice while observing natural justice and procedural fairness.[72]
[71] Section 6 (b)(c)(d) ACAT Act
[72] Section 7 ACAT Act
120.The Senior Member said[73]:
Well, look, what I am going to do – and it doesn’t mean that they [the respondents] can’t rely on it, what I am going to do is extend the suppression order that was made in matter number RT883 of 2017 to those parts of the response that refer to that matter. Does that deal with that?
[73] Transcript of proceedings, 25 July 2018, page 39, lines 42-44; page 40, line 1
121.GP agreed that ‘it deals with that case’.
122.Further, the Appeal Tribunal is satisfied that it was open to the Senior Member on the evidence before him, and indeed both practical and sensible, for the Senior Member to deal with GP’s application to strike out LINK’s response in the way he did. For the above reasons the Appeal Tribunal finds that the Senior Member did not err in his decision in relation to this alleged error.
123.The Appeal Tribunal will now consider the final ground of appeal in [95] above:
Giving insufficient weight to article 17 of the International Covenant on Civil and Political Rights
124.GP raised this ground for the first time in her submissions filed on 20 August 2018 in AA27/2018. The Appeal Tribunal considered the transcript of 21 June 2018 and 25 July 2018 and was unable to locate any reference to this article or this Covenant in the transcripts. GP stated:
27. It is submitted that the learned member gave insufficient weight to Article 17 and too much weight to ‘open justice’ in a matter which relates to a part of the applicant’s private life which is usually private, that is her residence and which she has according to Commonwealth legislation been able to protect by having her residential address suppressed on the electoral roll.[74]
[74] Applicant’s submissions filed 20 August 2018 at [27]
125.GP submitted[75] that Article 17 prohibits unlawful or arbitrary interference with a person’s privacy, family, home or correspondence. It also prohibits unlawful attacks on a person’s reputation and it provides that persons have the right to protection of the law against interference or attacks.
[75] Ibid at [28]
126.Section 12 of the ACT Human Rights Act 2004 (HRC Act) is based on Article 17 of the ICCPR. Section 12 provides:
12. Privacy and reputation
Everyone has the right—
(a)not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b)not to have his or her reputation unlawfully attacked.
127.In the earlier tribunal decision of Gindy & Chief Minister & ACT Government and Ors (Gindy)[76] President Crebbin considered the interpretative obligations of the HRC Act when the tribunal acts in an administrative capacity in a discrimination complaint. Some of President Crebbin’s observations are relevant to the present matter:
30. … there will be occasions on which this Tribunal is required to act consistently with human rights because it is acting as a public authority. The Tribunal will only be considered to be acting as a public authority when it is acting in an administrative capacity. This occurs in many of the cases that come before the tribunal; in matters involving administrative review, in matters involving the application of guardianship and management of property legislation and of mental health legislation. The Tribunal is probably also acting as a public authority when it considers matters involving occupational or professional discipline. There are a large number of such matters that the tribunal considers under a range of authorising laws.
31. It is not clear that the tribunal acts as a public authority when it is considering complaints under the Discrimination Act 1991. I could not find any consideration of this issue in Victoria. Further, it is not clear that the tribunal acts as a public authority when it is considering a strike out application under section 32 of the ACAT Act. This is because both discrimination proceedings and proceedings under section 32 of the ACAT Act, determine rights between individuals. This is not on the face of it, an exercise of power by the tribunal in an administrative capacity as a public authority.
[76][2011] ACAT 67
128.The Appeal Tribunal finds that, in the present matter, the tribunal is considering rights or claims between individuals. It is not acting in an administrative capacity or exercising power in an administrative capacity as a public authority. The Appeal Tribunal finds there is no merit in this ground of appeal.
Other matters
129. The Tribunal refers to [34] above. The orders made on 15 September 2018 provided:
1. In respect of the application by the applicant that I disqualify myself, I refuse that application but give leave to the applicant to make application to the Tribunal hearing the appeals on 17 September 2018.
2. In respect of the application by the fifth respondent, Mr Leskovec, for the cost of complying with subpoena XD 233/2018(a), I order the costs of complying with the subpoena in the sum of $166.00 in accordance with the Tax Invoice attached to the application, to be paid by the applicant.
3. In respect of Order 2, I also give leave to the applicant to appeal that order if she wishes to the Tribunal hearing the appeals on 17 September 2018.
4. …
130.GP did not apply to the tribunal to appeal these orders prior to 17 September 2018 or on 17 September 2018. The Appeal Tribunal took no further action in relation to the orders made on 15 September 2018.
Conclusion
131.The Tribunal will dismiss each of the applications and confirm the decisions under appeal. Pursuant to section 63 of the ACT Civil and Administrative Tribunal Act 2008 the Appeal Tribunal will order that the tribunal orders in XD 233/2018 on 21 June 2018 be amended by adding the following Notation:
The Tribunal notes:
Order 1 in XD 233/2018 dated 14 March 2018 is continued until further order.
………………………………..
Presidential Member E Symons
HEARING DETAILS
FILE NUMBER
AA 26/2018
AA 27/2018
AA 33/2018
PARTIES - APPLICANT
GP
GP
GP
PARTIES – RESPONDENT John Mackenzie,
Carol Sherman,
John Dimitriou,
Liam Hambridge,
Daniel Leskovec
John Mackenzie,
Carol Sherman,
John Dimitriou,
Liam Hambridge,
Daniel Leskovec
Liam Hambridge,
Daniel Leskovec
COUNSEL APPEARING, APPLICANT
N/A
N/A
N/A
COUNSEL APPEARING, RESPONDENTS
N/A
N/A
N/A
SOLICITORS FOR APPLICANT
N/A
N/A
N/A
SOLICITORS FOR RESPONDENTS
N/A
N/A
N/A
TRIBUNAL MEMBER
Presidential Member E Symons
Presidential Member E Symons
Presidential Member E Symons
DATE OF HEARING
17 September 2018
17 September 2018
17 September 2018
10