Howard v Department of Communities and Justice Housing (No. 2)

[2023] NSWCATAD 186

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Howard v Department of Communities and Justice – Housing (No. 2) [2023] NSWCATAD 186

Hearing dates:

On the papers

Date of orders:

18 July 2023

Decision date:

18 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

The applicant’s Application for miscellaneous matters filed on 22 June 2023 is dismissed.

Catchwords:

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 (NSW) – whether non-publication order should be made

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), s 55

Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 28, 29, 30, 49, 36, 38, 50, 64, 70

Civil and Administrative Tribunal Rules 2014 (NSW), rr 23, 24

Defamation Act 2005 (NSW), s 33

Government Information (Public Access) Act 2009 (NSW), s 100

Privacy and Personal Information Protection Ac 1998 (NSW), s 6

Privacy Act 1988 (Cth), s 7

Cases Cited:

Commissioner of the Australian Federal Police v Zhao 92015) 316 ALR 378

CYL v YZA [2017] NSWCATAP 105

DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92

EQH v Health Administration Corporation [2021] NSWCATAD 215

Hogan v Hinch (2011) 243 CLR 506

John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465

Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227

MDM v PR [2020] NSWCATCD 5

Ritson v Commissioner for Police (No.2) [2022] NSWCATAD 89

Ritson v Commissioner for Police [2022] NSWCATAP 223

Russell v Russell (1976) 134 CLR 495

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Texts Cited:

NCAT Policy 1 Complaints (November 2017)

NCAT Policy 2 Publishing Reasons for Decisions (October 2019)

Category:

Procedural rulings

Parties:

Morgan Howard (Applicant)
Department of Communities and Justice – Housing (Respondent)

Representation:

Solicitors:
Morgan Howard (Self-represented)
Z Dunford, Department of Communities and Justice, Legal (Respondent)

File Number(s):

2023/00103385

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The substantive matter in these proceedings was an application by Morgan Howard (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s for an administrative review under s 55(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) of conduct by the Department of Communities and Justice – Housing (the agency) which she had alleged was in in contravention of an Information Protection Principle contained in Part 2, Division 1, of the PPIP Act. The application came before me for hearing on 17 May 2023 on an Application for a stay or interim order filed by the agency on 2 May 2023 by which the agency sought summary dismissal of the application (summary dismissal application). I heard the summary dismissal application on 17 May 2023. I note that the hearing was conducted wholly ‘in public’, although it was only the applicant and representatives of the agency who attended the hearing in fact. At the conclusion of the hearing, I reserved my decision.

2. On 15 June 2023 a delegate of the Divisional Registrar notified the parties by email that my decision in the application would be published on Caselaw on 16 June 2023. By return email the applicant notified the Registry that she objected to the publication of the decision on the basis that it would be a ‘breach of her privacy’, ‘negligence’, ‘and a form of defamation’.

3. In response to that email a delegate of the Registrar wrote to the applicant to inform her of NCAT’s policy and procedure in relation to the publication of its decisions, attaching NCAT Policy No.2 Publishing Reasons for Decisions (October 2019). By the same email the delegate advised the applicant that if she was seeking orders in relation to the publication of the decision she should complete and return an Application for miscellaneous matters.

4. On the morning of 16 June 2023, the applicant wrote to the Divisional Registrar again concerning the ‘threat’ (as she apprehended it) that the decision would be published on Caselaw and objecting to NCAT Policy No. 2 on the basis that it was ‘contrary to overriding law, including the human right to privacy’.

5. Later 16 June 2023, a delegate of the Divisional Registrar published my decision to the parties only, advising that it would be published on Caselaw on 26 June 2023. The delegate also advised that the Tribunal would make further orders if any miscellaneous application was made prior to that date.

Application for miscellaneous matters

6. On 22 June 2023 the applicant filed an Application for miscellaneous matters. In section 3 of that application the applicant states that the orders sought are:

3.1   That Senior Member French RETRACT the numerous FALSE, INACCURATE and MISLEADING statements and BLATANT LIES notated within content of Decision and Reasons for Decision that Senior Member Philip French directly stated Applicant “contends” and/or falsely infers FALSE, INACCURATE and misleading statements and BLATANT LIES was/is sourced from the Applicant (i.e. contained within Submissions or stated by the Applicant during the Hearing. Examples will be quoted within the body of this application.

3.2 That Senior Member French RETRACT all FALSE STATEMENTS that are penned with the Intention to CONCEAL the misconduct and criminal conduct of employees of the Respondent – not only employees of Housing department but also Deputy Registrar Christine Skinner, Acting Principal Registrar Rebel Kenna and Principal Registrar Micelle Brazel (who claims that she acted on behalf of President Lea Armstrong) notating FALSE STATEMENT on NCAT Registry generated documents that application 2023/00103385 is under GIPA Act. Examples will be quoted within the content of this application.

3.3   That Senior Member Philip French refrain from PUBLISHING via uploading onto CaseLaw (thus the Internet) statements that effectively are DEFAMATION of the Applicant (be the Defamation committed by inference); e.g. inference that Applicant is ‘intellectually challenged’ – failed Secondary School Geography, Social Studies and Politics – is oblivious to the difference between a TOWN (Byron Bay) and a “region” (Northern Rivers).

3.4   That employees of NCAT (be it Senior Member P French, Principal Registrar Michelle Brazel – President Lea Armstrong or others) be prohibited from PUBLISHING content of Decisions and Reasons for Decision – including via CaseLaw (the Internet).

3.5   That employees of NCAT comply with the LAW – including Human Right to Privacy.

3.6   That employees of NCAT take lessons in BASIC MANNERS – the majority of human beings do not require a Law to inform them that publishing personal information, especially relating to a private life, is beyond RUDE.

3.7   That NCAT Members cease the illegal practice of including irrelevant personal information and statements about Applicants within the content of Decisions and Reasons for Decisions with Intention to circumvent (breach) Laws relating to PUBLISHING Personal Information, False Inaccurate and Misleading statements, Blatant Lies via CaseLaw (the Internet).

3.8   That employees of NCAT comply with the Law – rather than “policy” and “practice” that is contrary to Law (that over-rides “policy” and “practice”); i.e. cease the unlawful “policy” and “practice” of PUBLISHING personal information without consent of private individuals subject of the personal information.

7. The applicant’s Application for miscellaneous matters came before Principal Member Simon in chambers on 23 June 2023 who made directions for the conduct of the ‘application for non-publication orders’ to determination. The directions required the parties to file and serve submissions and documents in relation to the application and to indicate in those submissions whether an order should be made dispensing with a hearing in relation to ‘the non-publication application’. Principal Member Simon’s directions included a ‘Note’ that directed the parties’ attention to s 64(1) of the NCAT Act and to a decision which discusses relevant principles to be applied in determining if a non-publication order should be made: State of New South Wales (Justice Health) and Anor v Dezfouli [2008] NSWADTAP 69.

8. Following the closure of the submission period, the application was referred to me for consideration.

9. On 27 June 2023 the applicant filed submissions in relation to her application for miscellaneous matters. In the covering email to those submissions she states:

…

RE (1)   AGAIN – PROHIBIT Principal Member Teresa Simon from involving herself in any application lodged by this Applicant.

(2) OUTCOME PRE-DETERMINED = ILLEGAL

Principal Member Teresa Simon previously made Decision that condones the illegal practice of NCAT Members PUBLISHING blatant lies; False, Inaccurate and Misleading statements and Defamation of Victims with Intention to Conceal criminal conduct of public servants (including Kidnapping, False imprisonment and Fraud)

…

10. In the submissions the applicant states further to this:

SUBMISSIONS of APPLICANT … and REBUTTAL TO ORDERS by Principal Member Teresa Simon; and repeat of DEMAND that Principal Member Teresa Simon STEP DOWN – cease participating in any application of which Morgan HOWARD (Victim of her criminal conduct) is a Party.

11. The submissions then go on to discuss at some length another case in which the applicant was involved which was determined by Principal Member Simon. Various scandalous allegations are made against Principal Member Simon including that she has “concealed serious indictable offences” and is a “criminal with a law degree in need of prosecution”. It is contended that Principal Member Simon contrived to involve herself in these proceedings with the purpose of “conceal[ing] the criminal conduct of employees of the State of NSW (including NCAT) via publishing false accounts of what occurred, stripping victims of Human Right to Privacy and committing Criminal Defamation of the Victims”. It is submitted that this “should have prohibited Principal Member Teresa Simon from being allocated [the present matter] … because she is on the record as condoning ILLEGAL PUBLISHING – when she was the OFFENDER”.

Material considered

12. In determining the outcome of the applicant’s Application for miscellaneous matters I have considered the following material:

Applicant

1. Application for miscellaneous matters dated 22 June 2023,

2. Submissions dated 27 June 2023,

3. Submissions in reply dated 1 July 2023

Agency

1. Submissions dated 28 June 2023,

Dispensing with a hearing

13. As noted above, the directions made by Principal Member Simon on 23 June 2023 directed the parties to indicate in their submissions whether an order should be made dispensing with a hearing of the application.

14. In response to that direction the applicant includes the following in her submissions dated 27 June 2023:

…

1. Applicant OBJECTS to NCAT “dispensing with a hearing in relation to non-publication”. The Application regarding the THREAT to PUBLISH should be listed for Hearing – noting that Principal Member Teresa Simon should be prohibited from presiding; as should Senior Member Philip French (not appropriate for any Judicial Officer to preside over a matter relating to their conduct – be it a threat to publish or other).

..

15. In her submissions in reply dated 1 July 2023 the application says the following with relevance to that direction:

…

1. Respondent (via Zoe Dunford – “solicitor”) also submitted that employee/s of NCAT should make the Order to PUBLISH the entire content of Decision (other than Name of Applicant) BEHIND CLOSED DOORS – i.e. that the Applicant should be deprived of a HEARING of Application for Miscellaneous matter. The Reason the Respondent declared that the Applicant should be deprived of a HEARING is a ‘classic quote’: Given the great expense the Respondent has gone to in participating in these proceedings to date, the Tribunal should consider the considerable and disproportionate cost to the taxpayer of requiring the Respondent to appear at a hearing, given the limited importance and lower complexity of the subject matter of the proceedings and the current application before the Tribunal.

(a)   Given the great expense the Respondent has gone to – Correction: given the great expense employees of the Respondent have inflicted upon the taxpayers via breaching the Law including the Crimes Act.

… [b and c elaborate on (a) and contain further scandalous allegations]

(d)    given the limited importance (only to the RESPONDENT – the matter is of great complexity to the general public and Victims of NCAT illegal publishing practices) and lower complexity of the subject matter – FALSE STATEMENT – actually, HIGHER “complexity of the subject matter” – NCAT Member including Irrelevant Information; Blatant Lies, False, Incorrect and Misleading statements and inferences; Defamation of the Applicant and Deliberate “Errors of Law” within content of Decision and Reasons for Decision within intention to CONCEAL – via PUBLISHING on CaseLaw – breaches of Law, including the Crimes Act committed by employees of Respondent NCAT, the Threat to Publish – and NCAT Publishing is a CRIMINAL MATTER should employee/s of NCAT PUBLISH THE CONTENT of the Decision and Reasons for Decision attributed to Senior Member French – of the proceedings and the current application before the Tribunal - being Applicant’s DEMAND that employees of NCAT refrain from PUBLISHING.

16. Later in her submissions in reply the applicant states:

1.4   Not without dark humour considering the Order attributed to Principal Member Teresa Simon and Submissions of Zoe Dunford waffle on about “open justice”. Zoe Dunford is submitting that employees of NCAT should make an Order – that Decision and Reasons for Decision be PUBLISHED (on CaseLaw – thus the Internet) – BEHIND CLOSED DOORS.

1.4(a)   Note that the Order/s attributed to Principal Member Simon do not include a SIGNATURE – making evident that Order/s attributed to Principal Member Teresa Simon could have been issued by an employee of NCAT (including Deputy Registrar Christine Skinner or Principal Registrar Michelle Brazel).

1.5   FALSE STATEMENT. It is not “adequate” that Judicial Decisions be made by faceless (never seen) persons (who may or may not be the Judicial Officer whose name appears on the Orders); rather the practice enables anonymous underlings to commit Serious Indictable Offences in the name of others.

…

1.5(a)   Not “paranoid” – just logical. Any employee of NCAT could have issued the Order/s attributed to Principal Member Simon; thus it is NOT “adequate” that the Applicant be denied the ability to ‘put a face to a name’ – to ensure that the person whose name appears on the Order to PUBLISH is actually the person who made the Order to PUBLISH; especially under circumstances that whoever makes the Order to PUBLISH will be committing a Serious Indictable Offence – ATTEMPT to CONCEAL Serious Indictable Offences committed by employees of Respondent and NCAT.

…

40.4   Faceless (unseen) Judicial Officers making Orders BEHIND CLOSED DOORS does not serve JUSTICE – it enables underlings of the Court/Tribunal (such as Registrars to Forge Orders. Contrary to the Submissions of Respondent, the THREAT to PUBLISH – thus the Application for Miscellaneous – is not a “limited” matter. As the old saying goes – ‘Justice must be SEEN to be done’. In this case – it is essential that the Member who refuses to make a suppression Order – thus Incites employee/s of NCAT to breach all Laws relating to PUBLISHING on CaseLaw – is verified via facial recognition (seen presiding on the bench with a plague (sic) in front notating name and rank).

17. I apprehend from what is set out above that the applicant submits that the Tribunal should not dispense with a hearing of her Application for miscellaneous matters and that it should be set down for oral hearing.

18. The agency’s submissions on this issue are set out at paragraph 40 of its submissions filed on 28 June 2023:

1. The Respondent submits that a hearing of the Application for NPO should be dispensed with as:

a. The Application for NPO is limited to the issue of an order under s 64(1) of the CAT Act;

b. Both parties have been offered an opportunity to file written submissions and other material and, given the limited scope of the issues before the Tribunal, pursuant to s 50(2), the issue for determination can be adequately determined in the absence of the parties;

c. Dispensing of a hearing (sic) is consistent with the guiding principle at s 36(1) of the CAT Act that the Tribunal is to apply procedural rules to facilitate “the just quick and cheap resolution of the real issues in the proceedings”;

d.   Given the great expense the Respondent has gone to in participating in these proceedings to date, despite offering to settle the matter which was refused, the Tribunal should consider the considerable and disproportionate cost to the taxpayer of requiring the Respondent to appear and the hearing, given the limited importance and lower complexity of the subject matter of the proceedings and the current application before the Tribunal.

19. Section 50 of the NCAT Act sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides:

1. When hearings are required

2. A hearing is required for proceedings in the Tribunal except –

…

(c)   if the Tribunal makes an order under this section dispensing with a hearing, …

…

1. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

2. The Tribunal must not make an order dispensing with a hearing unless the Tribunal has first –

(a)   afforded the parties an opportunity to make submissions about the proposed order, and

(b)   taken such submissions into account.

1. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal; in accordance with the requirements of this Act, enabling legislation and the procedural rules.

2. This section does not prevent the Tribunal from holding a hearing even if it is not required.

   20. Section 36 of the NCAT Act prescribes the ‘guiding principle’ that is to be applied to the practice and procedure of the Tribunal. It provides, relevantly:

3. Guiding principle to be applied to practice and procedure

4. The “guiding principle” for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

5. The Tribunal must seek to give effect to the guiding principle when it –

(a)   exercises any power given to it by this Act or the procedural rules …

…

1. Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal –

(a)   a party to proceedings in the Tribunal,

…

1. In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

2. However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

   21. Section 38 of the NCAT Act provides, relevantly:

3. Procedure of the Tribunal generally

…

1. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

   …

1. The Tribunal is to take such measures as are reasonably practicable –

(a)   to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

…

(c)   ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

1. The Tribunal –

…

(b)   may require evidence or argument to be presented orally or in writing, …

…

22. Careful reading of the whole of the Application for miscellaneous matters and the applicant’s submissions filed on 17 June 2023 and 1 July 2023 leads to the following conclusions:

1. Principal Member Simon’s decisions in an unrelated case, including a decision to refuse to make a non-publication order, are not correct. That is not a matter that is amenable to an Application for miscellaneous matters filed in these proceedings,

2. Principal Member Simon should recuse herself from any involvement in these proceedings because she has made a decision or decisions the applicant considers were adverse to her in another proceeding. Principal Member Simon’s involvement in these proceedings has been limited to the issuing of directions for the conduct of the applicant’s Application for Miscellaneous matters to determination before me. If the applicant objects to the directions made the appropriate course was to lodge an Appeal or application for leave to Appeal in accordance with s 80(2) of the NCAT Act,

3. The applicant contends, in effect, that the substantive proceedings should be redetermined. That is not possible. Save for the ability to consider an order under s 61(1) of the NCAT Act I am functus officio in the proceeding,

4. The applicant contends that my disposition of her substantive application should be quashed or set aside because it contains various errors of law. That is not something that can be achieved by the filing of an Application for miscellaneous matters. Such an outcome can only be pursued by the filing of an Appeal in accordance with s 80(2) of the NCAT Act,

5. The applicant contends that my disposition of her substantive application should be quashed or set aside because it contains various factual errors. Again, that is not something that can be achieved by the filing of an Application for miscellaneous matters. Such an outcome can only be achieved by the filing of an application for leave to Appeal in accordance with s 80(2) of the NCAT Act,

6. I and other NCAT officers have engaged in various forms of malfeasance and criminal and “corrupt” conduct. Those are also not matters that are amenable to scrutiny via an Application for miscellaneous matters. Those complaints should be directed to those public institutions that are responsible for the investigation of such allegations, and

7. I and other NCAT officers have engaged in various other forms of unacceptable conduct. Those are also not matters that are amenable to scrutiny via an Application for miscellaneous matters. It is open to the applicant to make a complaint about those matters in accordance with NCAT Policy 1 Complaints (November 2017).

23. Consequently, the only issue that arises for determination from the applicant’s Application for miscellaneous matters is whether one or more non-publication orders ought to be made in relation to the proceedings in accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

24. That is an issue of narrow compass, and it is not a complex issue.

25. The procedural directions made by Principal Member Simon on 23 June 2023 put the parties on notice that the Tribunal may determine to dispense with a hearing in relation to that issue and provided them with the opportunity to make submissions about that proposed course of action. Both parties have made submissions in relation to that proposed course of action. I have considered those submissions. I note that I am not bound by the parties’ submissions.

26. I have determined to dispense with a hearing in relation to whether a non-publication order (or orders) should be made for the following reasons:

1. I am satisfied that this issue can be determined on the papers ‘justly, quickly and cheaply’ and in a manner that proportionate to its’ importance and complexity in accordance with NCAT’s guiding principle. With respect to s 36(5) there is nothing in the enabling legislation (the PPIP Act) that is contrary to or inconsistent with this course,

2. the issues for determination do not turn on any necessity for further oral evidence to that given in the substantive proceedings. No occasion arises for the cross-examination of any witness,

3. the procedural directions made by Principal Member Simon on 23 June 2023 provided the parties with the opportunity to make submissions in relation to the issue of whether a non-publication order (or orders) should be made. Both parties have availed themselves of that opportunity. I am satisfied on this basis that the Tribunal has discharged the obligation contained in s 38(5)(c) of the NCAT Act to take such steps as are reasonably practicable to provide the parties with a reasonable opportunity to have their submissions considered,

4. the note to the procedural directions made by Principal Member Simon on 23 June 2023 drew the parties’ attention to the applicable statutory law and case law in relation to the issue to be determined. The parties were therefore on notice as to the issues to be addressed in their submissions. I am satisfied on this basis that the Tribunal has discharged the obligation contained in s 38(5)(a) of the NCAT Act to take such steps as are reasonably practicable to ensure that the parties to the proceedings understand the nature of the proceedings,

5. this is an appropriate case for the Tribunal to require evidence and argument to be provided in writing in accordance with the discretion conferred on the Tribunal by s 38(6)(b) of the NCAT Act. In this respect the issue for determination is of limited scope and complexity and an oral hearing would result in public and party/party costs that are likely to be disproportionate to the outcome of the application. Additionally, requiring evidence and argument to be in writing appropriately prevents the applicant from engaging in scandalous and abusive oral argument, which is an abuse of process,

6. I am satisfied that the submissions the parties have provided contain sufficient material to enable me to adequately determine whether a non-publication order (or orders) should be made. In this respect I note that the applicant’s Application for miscellaneous matters runs to 29 pages, her submissions dated 27 June 2023 run to 42 pages, and her submissions in reply dated 1 July 2023 run to 39 pages. The agency’s submissions run to 12 pages,

7. The applicant’s submissions in reply of 1 July 2023 are formulated as a ‘line by line’ rebuttal of the agency’s submissions. I am thus satisfied that there has been adequate joinder of the parties on the issues to be determined and in this respect that procedural fairness has been accorded to the applicant in accordance with the Tribunal’s s 38(2) obligation,

8. No weight should be given to the applicant’s scandalous allegations that NCAT registry staff have (or may have) impersonated Principal Member Simon by issuing procedural directions for the conduct of her Application for miscellaneous matters to determination. That did not happen,

9. Very little weight should be given to the applicant’s submissions to the effect that a decision should not be made by ‘nameless’, ‘faceless’ persons, ‘behind closed doors’. I constituted the Tribunal that heard and determined the applicant’s substantive application at a live oral hearing. In this respect I am neither nameless nor faceless so far as the applicant is concerned. My determination of the applicant’s Application for miscellaneous matters is the subject of this published decision and has been made following a submission process. In this respect the application has been determined ‘in the open’.

Applicable law

27. The objects of the NCAT Act relevantly provide:

1. Objects of Act

The objects of this Act are –

(a)   To establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

…

(c)      to ensure that the Tribunal is accessible and responsive to the needs of all its users, and

(d)    to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e)   to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

(f)      to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g)      to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.

28. Section 49 of the NCAT Act concerns the way hearings before the Tribunal are to be conducted. It provides:

1. Hearings to be open to public

2. A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

3. The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

   29. The Tribunal’s power to restrict disclosures concerning proceedings before it is found in section 64 of the NCAT Act, which relevantly provides:

4. Tribunal may restrict disclosures concerning proceedings

5. If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a)      an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)      an order prohibiting or restricting the publication or broadcast of any report of the proceedings in the Tribunal,

(c)      an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)      an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

…

1. For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

   30. The power conferred by s 64(1) is discretionary (the Tribunal “may” make such an order). Section 64(1) does not confer any automatic or absolute right on an applicant for such an order to obtain it. The discretion is engaged if the Tribunal is ‘satisfied’ that such an order is ‘desirable’. A state of satisfaction is one of persuasion attained on a rational basis. The Tribunal must be content as to the existence of confidential evidence or of any other matter or reason that would justify such an order being made.

   31. The jurisdiction to make an order under s 64(1) is conferred by s 28(1) of the NCAT Act. In making such an order the Tribunal is not exercising administrative review jurisdiction as defined in s 30 of the NCAT Act and s 9 of the ADR Act (it involves no administratively reviewable decision). Nor is it exercising the Tribunal’s general jurisdiction as defined in a 29 of the NCAT Act because it is jurisdiction conferred by the NCAT Act itself, not by NCAT’s enabling legislation. Rather, it is exercising the concurrent jurisdiction conferred by s 30(2)(b) of the NCAT Act to make an order under s 64 in connection with administrative review proceedings.

   32. Two issues arise from this. First, what, if any, temporal limit applies to the making of an application for an order under s 64(1), and second, whether a formal onus of proof attaches to such an application.

   33. In relation to the first issue, I cannot see that the NCAT legislative scheme does attach any temporal limit on the making of an application for an order under s 64(1). Section 64 itself does not prescribe any temporal limit for the making of such an application. As such an order does not involve the exercise of either NCAT’s administrative review or general jurisdictions the ‘default’ limitation periods contained in rules 23 and 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) also do not apply. I thus conclude that an application for an order pursuant to s 64 may be made at any time: Ritson v Commissioner for Police (No.2) NSWCATAD 89 at [29]. However, the temporal focus for the application is the date of its determination. This involves consideration of the conduct of the proceedings up to that date and any future trajectory of the proceedings: Ritson v Commissioner for Police (No. 2) [2022] NSWCATAD 89 at [60]. Delay in making an application for a non-publication order may thus impact on the question of whether there are sufficient grounds for the exercise of the discretion at the time the application for such an order is determined

   34. In relation to the second issue, I think the better view is that s 64(1) does not impose a formal onus of proof on an applicant for an order. That is because the Tribunal itself may make such an order of its own motion. However, because there must be material before the Tribunal that establishes to the Tribunal’s ‘satisfaction’ the ‘desirability’ of a non-publication order being made, an applicant for such an order does bear an evidentiary or practical onus of establishing the desirability of such an order: Ritson v Commissioner of Police (No. 2) [2022] NSWCATAD 89 at [63]; this finding was not disturbed on appeal in Ritson v Commissioner of Police [2022] NSWCATAP 223 at [39] to [51].

   35. In DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 Deputy President Hennessy followed a decision of an Appeal Panel of the former Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) in relation to s 75(2) of the former Administrative Decisions Act 1997 which was an equivalent provision to s 64 in determining if a non-publication order should be made in that proceeding. At paragraphs [6] to [11] her Honour summarised the relevant principles to be applied:

2. An equivalent provision to s 64 has been the subject of close analysis by the Appeal Panel of the Administrative Decisions Tribunal. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, the Appeal Panel was considering the meaning of s 75(2) of the Administrative Decisions Act 1997 (NSW). After a comprehensive analysis of the statute and the case law the Tribunal drew attention to the following points relevant to its decision in that case:

81.   ….(a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

1. The first principle mentioned by the Appeal Panel, “the presumption in favour of open justice”, is a common law principle. Kirby P explained the principle in the following terms in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 (citations deleted):

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms …

A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of the proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.

1. The importance of the common law principle of open justice when exercising the discretion in s 64 of the NCAT Act was highlighted by the Appeal Panel in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61]:

…it is unthinkable that the word ‘desirable’ in s 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

…

1. … the starting point when determining an application for a non-disclosure order is to identify the reasons which are said to favour the making of such an order. The reasons may be “the confidential nature or any evidence or matter or any other reason”. The reason must be “good grounds for making the order”: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]. Generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, but there may be unusual circumstances where this is the principal consideration underlying an order.

2. After identifying the reason for the application, the next step is for the Tribunal to take into account any other relevant considerations, particularly the presumption in favour of open justice. The Tribunal observed in Carroll v Tokdogan [2015] NSWCATAD 200 at [8] that the principle of open justice means that “the power contained in s 64 should be exercised sparingly”. Other relevant factors include the nature of the order being sought.

See also EQH v Health Administration Corporation [2021] NSWCATAD 215.

Scope of the non-publication order sought

36. In her Application for miscellaneous matters the applicant explains the non-publication orders she seeks in the following way:

SUMMATION:

…

1. The THREAT TO PUBLISH the Decisions and Reasons for Decision was/is a CRIMINAL ACT; and PUBLISHING the Decision and Reasons for Decision penned by Senior Member Philip French is also a CRIMINAL Act,

2. Whilst Applicant (being a PRIVATE individual) “contends” that NCAT does not have a legal right to even PUBLISH the fact that Applicant Filed an application at NCAT, the “Publication Restriction” may be ‘lifted’ to enable NCAT to publish a brief notation on CaseLaw (the internet):

Case Name – CENSORED (Private Individual) vs Secretary, NSW Department of Communities and Justice (being an oxymoron corporate conglomerate that includes NCAT).

Before: Phillip French (Senior Member)

Applicant: CENSORED (Private Individual)

Respondent: Secretary, NSW Department of Communities and Justice

Decision – to unlawfully (civil) and illegally (criminal) Dismiss the application.

Reasons (excuse) for Decision (to Dismiss the application): to support the CRIMINAL CONDUCT of employees of Respondent. Senior Member Philip French effectively declared that the Applicant did not have a legal right to DEEM the repeated REFUSALS of Respondent to be a FINAL DECISION (by Respondent); and Senior Member Philip French pretended to be oblivious to points of Fact and consequent points of Law: on 17 May 2023 (date of Hearing of Strike Out Application) – more than 60 days had elapsed since Applicant lodged Request for Internal Review of Decision – thus Respondent was OUT if TIME to conduct a Review – thus Applicant’s DEEMING was proven to be REASONABLE and ACCURATE; thus Respondent was OUT OF TIME to conduct a Review, NCAT did have JURISDICTION. Note: even if the Applicant had not DEEMED response to Request for Internal Review to be a REFUSAL – NCAT had JURISDICTION on 17 May 2023 – because the Respondent was OUT OF TIME to conduct a review.

37. That scope is confirmed in the applicant’s submissions in reply dated 1 July 2023 at paragraph 9.6. Throughout her Application for miscellaneous matters and submissions the applicant contends that an order should be made that only she can direct the form and manner of publication of the decision.

38. I apprehend from these submissions that the applicant applies for non-publication orders that:

1. Anonymise her identity,

2. Prohibit publication of the whole of my reasons for decision in the substantive proceedings,

3. ‘Lift’ that prohibition only to the extent necessary to permit the publication on Caselaw of the decision critique the applicant has formulated, and

4. Order that any future publication of the reasons for decision only occur with the applicant’s consent and in the manner directed by the applicant.

Contentions of the parties

Applicant

39. The applicant’s Application for miscellaneous matters and her submissions in reply are discursive and prolix. They are also replete with scandalous allegations and abuse directed the agency’s representative, other staff of the agency, and NCAT officers, including myself. However, the following propositions (or contentions) may be discerned from them:

1. There is a fundamental human right to privacy that operates to prohibit any public disclosure of civil legal proceedings instituted by ‘private citizens’ in relation to their ‘private life’, and the outcome of those proceedings. There is no presumption of open justice in relation to such proceedings,

2. In this regard NCAT Policy 2 Publishing Reasons for Decision is contrary to “overriding law’ and its application in her case would be constitute a violation of her human right to privacy,

3. Other than in relation to the applicant’s ‘kith and kin’, information about the proceeding should only be available to NCAT staff and the agency’s staff on a strictly “need to know” basis,

4. The fact that a ‘private citizen’ has instituted a legal proceeding, and the outcome of such a proceeding, can only be publicly disclosed with that private citizen’s consent and then only in the manner directed by that private citizen,

5. Only the applicant has a ‘right’ to publish the decision. If the Tribunal did make an order under s 64(1) it could not operate to restrict her publication of any matter concerning the proceedings because she is a “private individual” who is the “victim of offences committed by employees of the respondent and NCAT” and “all citizens have a legal obligation to expose breaches of the law committed by public servants (especially employees of Courts and Tribunals)”. It is the applicant’s intention to publish the decision edited as she chooses with rebuttals of the legal and factual errors she contends it contains,

6. The substantive decision contains “blatant lies”, “false, inaccurate, and misleading statements and inferences”, “derogatory” and “defamatory” statements about the applicant, that “debase” the applicant. It therefore ought not to be published on these bases,

7. The decision also contains “irrelevant” and “personal” information. The personal information includes that she is an applicant for social housing from which an inference can be drawn that she is financially disadvantaged, and that she has instituted proceedings before the Tribunal,

8. Publication of the decision would be contrary to the “common law” of “negligence” and “defamation” and would also be a crime under the “Crimes Act”. Publication of the decision would cause the applicant “foreseeable harm”, being “psychological assault”. It is not necessary for the applicant to prove that harm with evidence, that harm is a matter of “common sense”,

9. The Case Conference and Hearing of the substantive application were conducted “without an audience” and “in private (as it should be)”,

10. The issue of whether it is ‘desirable’ to make a non-publication order is to be determined in accordance with the applicant’s expressed wishes and concerns, and not by reference to any other person or principle

11. An applicant for an order under s 64(1), if they are a “private citizen”, should not have to “beg” for such an order to be made. ‘Private individuals’ have an automatic right to non-publication orders under s 64(1),

12. The applicant should not have had to make an application for non-publication orders because she was entitled to such orders by operation of overriding privacy law and the human right to privacy. She did not apply for a non-publication order earlier in the proceedings because she did not know that she had too. In this respect, NCAT staff and members failed to advise that this was a requirement,

13. The proceedings involve a “private matter” filed by a “private individual”. It involves “no lawful public interests”.

14. There is no public interest in the Tribunal’s consideration of the issues raised in the proceedings that would justify publication of the reasons for decision because the reasons are replete with factual and legal errors. Publication of these factual and legal errors would only “add insult to injury”,

15. The agency bears the onus of proving there is a public interest in the publication of the decision,

16. There is no ‘public interest’ in permitting ‘public servants’ to publish decisions on Caselaw (“thus the Internet”); such a practice is ‘abhorrent’ to the ‘general public’,

17. The benefit of an order under s 64(1) is only available (“applicable”) to “private individuals”, “not public servants acting on behalf of the government and/or persons in the employ of taxpayers (e.g. employees of DCJ and NCAT) – other than employees of security agencies”,

18. The principles set out in Dezfouli do not apply in this case. That case is to be distinguished on the basis that the applicant in that case had been “declared” “mentally ill”, and “his legal right to privacy [was] somewhat blurred – whilst [the] applicant’s [in this case] legal right to privacy is crystal clear’,

19. The principles established with respect to non-publication orders in professional disciplinary proceedings do not apply in this case because they relate to the ‘professional life’ of a person, not their ‘private life’,

20. The applicant’s proposed summary of the decision and reasons for decision is an ‘accurate’ description of the outcome of the substantive proceedings and is what should be subject to publication,

21. The agency’s proposal for a pseudonym order is an “appropriate start” “but nowhere near good enough”.

Agency

40. The agency contends:

1. The Tribunal should make an order under s 64(1)(a) of the NCAT Act prohibiting publication of the applicant’s name. In support of this proposal the agency submits:

1. The substantive proceedings were commenced under the PPIP Act and it is NCAT’s ‘ordinary practice’ in such proceedings to make a pseudonym order,

2. The applicant has raised concerns regarding the publishing of her personal information contained in the decision,

3. During the substantive proceedings, had the applicant requested such an order the respondent would not have objected,

4. Some of the personal information contained in the decision is of a sensitive nature,

5. The applicant is reasonably identifiable from the decision as she is named as a party,

6. A pseudonym order is ‘desirable’ as it protects the applicant from the publication of details of her private affairs while maintaining and upholding the principle of open justice, balancing the public and private interests at play, and

7. A pseudonym order alone is sufficient to protect the personal information of the applicant as the applicant would no longer be reasonably identifiable from the information about the applicant contained in the decision as this remaining information does not contain sufficient detail to identify the applicant to persons beyond the agency and the Tribunal.

2. With respect to the applicant’s proposed order:

1. The making of that order (or orders) would be inconsistent with the presumption in favour of open justice,

2. The applicant has not established ‘good grounds’ for the making of that order (or orders),

3. While the criterion of ‘desirability’ at s. 64(1) of the NCAT Act is broad, the applicant has not established how the information contained within the decision is of a ‘confidential nature’ or ‘any other reason’ why it is desirable to make the proposed order beyond her assertion that parts of the decision are defamatory, and it is the applicant’s position the decision is incorrect. The agency agrees, in part, that it is desirable to make an order due to the confidential nature of the personal information of the applicant, however, importantly, differs greatly on the scope of that order,

4. The type of non-publication order sought is akin to a complete non-publication order and therefore even more compelling grounds would be required to support the making of this kind of order, given the need to balance any order under s 64(1) of the NCAT Act with the principle of open justice. The applicant has not set out sufficient grounds for the scope of the order she seeks. The agency is of the view that a pseudonym order would be sufficient to address the concerns regarding privacy raised by the applicant,

5. The fact that the applicant disagrees with the decision is not a ‘reason’ why the proposed order should be made. This a matter for appeal,

6. The applicant seeks to serve purely her private interest in seeking her proposed order. The agency’s proposed order balances the public and private interests at play,

7. The applicant’s references to defamation indicate that she considers parts of the decision to damage her reputation. However, the agency submits that these are not ‘unusual circumstances’ in which this consideration may make a non-publication order desirable because the applicant has not clearly identified how the decision causes her reputational damage.

Consideration

41. To determine the outcome of this application the Tribunal must pose and answer the following questions:

1. Does the decision contain confidential information that may make it desirable that a non-publication order be made?

2. Is there any other reason why it is desirable to make a non-publication order in relation to the decision?

3. If the answer to either (a) or (b) or both is “yes” should the discretion conferred by s 64(1) be exercised in favour of making a non-publication order?

4. If the answer to (c) is “yes” what should be the scope of the non-publication order?

Preliminary issues

42. The applicant’s contention that there is an ‘overriding law’ in connection with a human right to privacy that prohibits NCAT from publishing the fact that a ‘private citizen’ has instituted proceedings before it, and the outcomes of such proceedings, is misconceived.

43. To the contrary, NCAT, in common with a Court, has a general common law obligation to adhere to the principle of open justice. That principle generally requires publication of hearing fixtures, the conduct of hearings in public, and the publication of judgements made in proceedings: see ss 3(f) and 49(1) of the NCAT Act.

44. The principle of open justice is derived from the values of transparency, integrity and legality which are hallmarks of the of the Australian justice system and which are critical to the maintenance of public confidence in it: John Fairfax & Sons Limited v Police Tribunal of NSW (19860 5 NSWLR 465 at [476]-[477]; Commissioner of the Australian Federal Police v Zhao 92015) 316 ALR 378 at [44]; Russell v Russell (1976) 134 CLR 495; Hogan v Hinch (2011) 243 CLR 506 at [20]. In this respect it is a principal means by which object 3(g) of the NCAT Act is to be achieved.

45. That is no less the case because the principle of open justice operates subject to exceptions and limitations: John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR at [476]-[477]; State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61]. Or because s 64(1) of the NCAT Act modifies the common law to permit non-publication orders to be made where it is desirable to do so: CYL v YZA [2017] NSWCATAP at [102]; MRM v PR [2020] NSWCATCD 5 at [19]; Dezfouli.

46. The applicant’s contention that NCAT requires her consent to publicise the fact that she has instituted legal proceedings before it, and to publish judgements made in those proceedings, is also misconceived. NCAT does not operate subject to the direction or control of any party to a proceeding before it. It is independent: s 3(a) of the NCAT Act.

47. The Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) requires NSW public sector agencies to safeguard in specified ways personal information collected and held by those agencies, including by not disclosing it without a person’s consent or in accordance with law. NCAT is a NSW public sector agency. However, the provisions of the PPIP Act do not apply to the exercise of NCAT’s judicial functions. In this respect, s 6 of the PPIP Act provides:

1. Courts, tribunals and royal commissions not affected

2. Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.

   …

3. In this section, “judicial functions” of a court or Tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it …

   48. A similar exemption applies under the Privacy Act 1988 (Cth) in relation to the judicial functions of the Federal Courts: s 7 of that Act.

   49. The applicant’s contention that publication of the decision could somehow constitute defamation of her is equally misconceived. Under s 33 of the Defamation Act 2005 (NSW) the defence of absolute privilege attaches to a matter that is published to or by NCAT under the NCAT Act, including matter that is published in an official report of a decision or of the reasons for decision of the Tribunal.

   50. For completeness, I note that s 70 of the NCAT Act prescribes a civil penalty offence in relation to the improper disclosure of information obtained in exercising a function under that Act. However, publication of a decision containing information obtained in the public hearing of an application is incapable of attracting the operation of that section because this is a disclosure in connection with the execution of the NCAT Act: s 70(b).

Does the decision contain confidential information that may make it desirable that a non-publication order be made?

51. It may be accepted that paragraphs 8 to 10 of the decision do contain personal information about the applicant. However no great sensitivity attaches to most of this information such that it is of a confidential nature.

52. The fact that the applicant is an applicant for social housing and has had various dealings with the agency in that respect is not a matter of great sensitivity. It may be that an associated inference may be drawn that the applicant has limited financial means but if so, that is also not a matter of great sensitivity. There are thousands of social housing recipients and applicants in NSW. Whatever may be the applicant’s subjective sensitivity surrounding this, objectively, those statuses are not reasonably a source of serious embarrassment. Many hundreds of applications are made by and in respect of social housing tenants to NCAT’s Consumer and Commercial Division each year, and many decisions arising from those applications are published on Caselaw. The names of the tenant party to those applications are not anonymised and those decisions are not subject to non-publication orders except perhaps in rare circumstances (I am not aware of such a case).

53. The information in the decision related to the applicant’s attempts to obtain other social assistance is expressed in very general terms and so expressed is not a matter of great sensitivity

54. The fact that the applicant purportedly made requests to the agency for internal review of its decision to refuse to accept a change of circumstances form from her without a current medical assessment is not information of great sensitivity which would render it confidential information. I accept that this conduct concerns the personal affairs of the applicant, and that its public exposure may occasion the applicant a degree of embarrassment. But this conduct was the essence of the applicant’s administrative review application, and a degree of exposure and potential embarrassment is an ordinary incident of litigation. It is not information about the applicant that is of sufficient sensitivity to be characterised confidential for the purposes of s 64(1).

55. It may be accepted that the reference to the applicant’s homelessness has a higher calibre of sensitivity. Homelessness is an extreme form of social disadvantage that is typically associated with aggravating factors. I accept that the public exposure of this information could lead to serious embarrassment. I am satisfied on this basis that this information could constitute confidential information for the purposes of s 64(1).

56. However, while this information could constitute confidential information, I am not satisfied it does in the circumstances of this case. That is because this information has been the subject of submission during the Tribunal’s public hearing of the application, and it exists on the public record of that hearing. In this respect the applicant’s submission that the hearing of her Administrative review application occurred “in private” is incorrect. It was a public hearing conducted in accordance with s 49(1) of the NCAT Act, albeit without “an audience” in the sense that it was only the applicant and representatives of the agency who attended. No order was made pursuant to s 49(2) of the NCAT Act that the hearing be conducted wholly or partly in private because of the confidential nature of evidence or matter or for any other reason. No application for such an order was made. The fact that the substantive hearing was conducted in public weighs against a non-publication order being made at this late stage in the proceedings. The public hearing of the application cannot be undone: Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227 at [22].

Is there any other reason why it is desirable to make a non-publication order in relation to the decision?

57. I do not ascertain any other reason why a non-publication order should be made on the material before me. To the extent that this issue is engaged by the applicant’s various submissions I rely on what I said at paragraphs [33] and [42]-[50] above.

If the answer to either (a) or (b) or both is “yes” should the discretion conferred by s 64(1) be exercised in favour of making a non-publication order?

58. For the reasons set out above, the applicant has not discharged her evidentiary or practical onus of establishing that there are good grounds for a non-publication order to be made. It is therefore strictly unnecessary for me to consider the exercise of discretion.

58. However, if I am wrong in relation to the conclusions I have reached as to whether the decision does contain confidential personal information, I would nevertheless not have made a non-publication order in any form.

59. This is a case in which the principle of open justice must prevail over the applicant’s asserted and actual private interests in the protection of her privacy. This is manifestly in the public interest.

60. The applicant conducted her case in the substantive proceedings in a scandalous manner. As can be ascertained from the excerpts quoted above and my summary of the applicant’s submissions, that scandalous conduct has continued in the context of her Application for miscellaneous matters. Wild allegations are made about agency staff, NCAT staff, and this Tribunal. Those allegations include malfeasance and corruption. Having regard to this, it is essential that the applicant’s administrative review application is dealt with wholly ‘in public’ having regard to objects 3(f) and (g) of the NCAT Act in particular. Nothing about the Tribunal’s process in dealing with that application should be made unavailable to public scrutiny.

61. Additionally, as set out above, in her submissions the applicant expresses an intention to publish some modified version of the Tribunal’s decision which incorporates her critique and rebuttal of it. It is even more important in these circumstances that there be a certified complete version of the decision on the public record.

62. The agency submits that it is usual in privacy proceedings for a non-publication order, in the form of a pseudonym order, to be made. While I agree that this is not unusual, there must nevertheless be good grounds for the making of such an order. There is nothing automatic about the nature of the proceeding that obviates this. Ultimately, in this case, the personal information in contention was address information related to an allocation zone (Byron Bay region vrs inner Sydney) and whether the agency was obliged to amend that address information at the request of the applicant. General address information of this kind could not be considered confidential or sensitive such that it would justify any form of non-publication order, including a pseudonym order.

63. Even if I am wrong in that conclusion, I would not exercise the discretion to make a non-publication order in this case even to the limited extent of a pseudonym order. The applicant has sought to conduct a self-righteous and scandalous crusade before the Tribunal. There is no public interest in the identity of a person who conducts herself in this way being protected by a pseudonym order. Any embarrassment that is occasioned the applicant by the disposition of proceedings is in the interests of justice, not contrary to it.

Orders

65. For the foregoing reasons:

1. The applicant’s Application for miscellaneous matters filed on 22 June 2023 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 July 2023