MDM v PR

[2020] NSWCATCD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

MDM v PR [2020] NSWCATCD 5

Hearing dates:

6 December 2019

Date of orders:

11 March 2020

Decision date:

11 March 2020

Jurisdiction:

Consumer and Commercial Division

Before:

K Rosser, Principal Member

Decision:

1. The application is dismissed because it is withdrawn.

2. An order dispensing with a hearing of the application for suppression orders is made under s 50(2) of the Civil and Administrative Tribunal Act 2013.

3. The publication of the parties’ names is restricted from publication except to the parties.

4. The publication of the documents which have been received in evidence by the Tribunal, evidence given before the Tribunal at the hearing on 6 December 2019, including all recordings, whether written, electronic or oral, of that hearing be restricted from publication except to the parties.

5. By consent of the parties, the content of the affidavit of 28 November 2019 filed in these proceedings is restricted for publication and is to be stored by the Tribunal in a sealed envelope marked “confidential”.

6. By consent of the parties, these orders shall not prevent the identification of any party in the proceedings or the communication of any pleading, transcript or recording of evidence or other document in the proceedings to: i.the employer of one of the parties and correspondence that amounts to a complaint. ii. any body that is responsible for disciplining members of the legal profession in a State or Territory.

7. These reasons for decision are not to be published otherwise than to the parties without appropriate redactions.

Catchwords:

SUPRESSION ORDER – Anonymisation of parties’ names – Restrictions on publication

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Russell v Russell (1976) 134 CLR 495

Reinhard v Welker [2011] NSWCA 403

CYL v YZA [2017] NSWCATAP

Texts Cited:

Nil

Category:

Principal judgment

Parties:

MDM (Applicant)
PR (First Respondent)
TT (Second Respondent)
GW (Third Respondent)

Representation:

Applicant (Self represented)
Jane Crittenden Lawyer (Respondents)

File Number(s):

SC 19/49726

Publication restriction:

Nil

reasons for decisioN

Background

1. By application filed on 7 November 2011 MDM sought orders pursuant to s 238 of the Strata Schemes Management Act 2015 that the respondents be removed as members of the strata committee. The applicant filed substantive and interim applications, seeking urgent orders. The interim application was heard by Principal Member Simon on 6 December and was dismissed by orders made on 10 December 2019.

2. On 11 December 2019 the applicant through his solicitor withdrew the application SC 19/49726. An order has accordingly been made that the application is dismissed because it is withdrawn.

3. The applicant sought orders pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (suppression orders), continuing the suppression orders made by Principal Member Simon.

4. In particular, the applicant has applied to the Tribunal for an order prohibiting the disclosure of his name as well as the publication of the applicant’s name and the subject matter of the application. It is the applicant’s position that any such disclosure would be sufficient to enable any person who desires to harm the applicant becoming aware of his address, thereby creating a possibility of physical harm or death to the applicant and his family.

5. The respondents oppose the application, other than the redaction of the Strata Plan number and strata scheme address, on the basis that MDM’s reasons for the application are not strong enough to displace the presumption of open justice.

6. A suppression order would involve giving the applicant a pseudonym in any written reasons for decision and prohibiting anyone from disclosing his name or any information which may lead to his identification in connection with these proceedings.

7. I have decided to make a suppression order because I am satisfied that it is, on balance, desirable and in the best interest of the applicant to remove any chance of having his address, and that of his family, identified to persons who may plan to harm the applicant, however remote that possibility may be.

8. I have weighed several considerations in reaching this decision including the reasons applicant has put forward for wanting the order, the possibility of harm to the applicant and his family versus the presumption that hearings should be held in public and parties’ names should be disclosed and the fact that the applicant is withdrawing the application. These are the reasons for the continuation of the suppression order made and published to the parties on 6 December 2020.

9. I am satisfied that it was appropriate to determine the application on the basis of the parties’ written submissions. Neither party sought a hearing of the application. An order dispensing with a hearing has therefore been made under s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).

10. The applicant also applied for an order prohibiting the publication of certain affidavit evidence. This is not opposed and I make that order by consent.

The applicant’s submissions - 17 January 2020

11. The matter was set down for hearing of an interim application on 3 December 2019. The applicant appeared represented by counsel for the hearing of the interim application, seeking removal of certain individuals from the strata committee. The Tribunal dismissed the application for interim orders and made the following orders under s 64 of the NCAT Act:

In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013 and until further order of the Tribunal, the names of the parties are not to be disclosed and the parties are to be known as follows in any published hearing lists:

i.   The applicant is to be referred to as ‘MDM’

ii.   The first respondent is to be referred to as ‘PR’

iii.   The second respondent is to be referred to as ‘TT’

iv.   The third respondent is to be referred to as ‘GW’

In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication of the following material is restricted from publication until further order of the Tribunal, except to the parties:

i. the documents which have been received in evidence by the Tribunal on the file.

ii. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 6 December 2019, including all recordings, whether written, electronic or oral of that hearing.

In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication of the affidavit of the applicant dated 28 November 2019 and, in an envelope marked confidential, is restricted for publication until further order of the Tribunal, except to the applicant.

12. The following is a summarised version of the applicant’s written submissions dated 17 January 2020. Due to the volume of the submissions presented by both parties it is not possible to repeat all of the written material relied upon by the parties. The Tribunal has provided a summarized version of the written material, but all documents and submissions have been considered.

13. The applicant is a judicial officer who commenced proceedings before the Tribunal seeking the removal of the respondents from the strata committee. Following the filing of the strata schemes application, the applicant filed an affidavit that contained evidence with respect to the applicant, his employer, and the risk to the applicant’s life including actual threats made against the applicant’s life. Orders were sought for the suppression of the applicant’s name and orders preventing publication. When the proceedings came before the Tribunal on 9 December 2019 the Tribunal determined to make non-publication and confidentiality orders as set out in paragraph 7 above.

14. It is the applicant’s position that the identity of the parties should be restricted from publication and that any documents which have been received in evidence by the Tribunal and any part of evidence given before the Tribunal and submissions made to the Tribunal should be restricted from publication permanently pursuant to section 64 (1) of the Act.

15. The applicant acknowledges that the High Court articulated 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: Russell v Russell (1976) 134 CLR 495, 520.

16. It is the applicant’s position that any suppression order must include any affidavit evidence filed on his behalf. In particular the applicant seeks the suppression order of 6 December be continued in respect of affidavit evidence filed 28 November 2019. The evidence discloses matters:

1. Revealing national security processes in particular the source of referral of matters to the Australian Federal police for investigation in relation to terrorism.

2. Revealing the security processes of the [applicant’s place of employment];

3. That have the potential to compromise ongoing criminal investigations;

4. That have the potential to compromise current proceedings before the applicant in court; and the identification of persons appearing in court.

17. It is clear from the submissions of the respondent that this order is not opposed: See submissions by the respondent filed 22 January 2020 paragraph 22. I therefore make orders, by consent of the parties, that the content of the affidavit of 28 November 2019 is restricted for publication until further order of the Tribunal.

The respondent’s submissions – 22 January 2020

18. The respondent relies on written submissions filed on 22 January 2020 with attached material. It is the respondent’s position that any published decision and reasons of the Tribunal should not have the applicant’s name anonymised, but should have the strata plan number, address of the property and the names of the three respondents anonymised because it is the disclosure of the Strata plan number, and address of the strata scheme and the names of the three respondents that would enable a member of the public to ascertain the applicant’s address.

19. The respondents submit that there is no other basis on which the Tribunal would exercise its discretion under section 64(1) of the Act to suppress the name of the applicant. The respondents acknowledge as expressed by the Appeal Panel in CYL v YZA [2017] NSWCATAP at [102], that the Tribunal’s power to make an order under section 64 (1) is ‘less constrained than the position at common law’.

20. It is submitted that the sole basis of the applicant’s request for non-disclosure seems to be a concern for his safety and the safety of his family from physical threat by parties who have or may in future appear before him. The respondents acknowledge the need for protecting the applicant from risk of physical harm but contend that this can be achieved by anonymising the respondent’s name, the strata plan number and the address of the property in any decision published by the Tribunal. There is no need to anonymise the applicant’s name as his address would not be disclosed if the strata plan number and address and respondents names are anonymised.

21. It is submitted that as the applicant commenced the proceedings and made allegations of gross misconduct against the respondents, being allegations which are refuted, but which the respondents will not now have an opportunity to have determined, the interests of open justice and scrutiny of the allegations would weigh against any non-disclosure of the Tribunal’s interim orders except in the manner referred to above.

22. It is submitted that the applicant should not be afforded anonymity in relation to the allegations he has made, and the respondents should be entitled, as they propose to do to take the applicant’s conduct in these proceedings and in relation to other matters up with his employer. Confidential order in the terms proposed by the applicant would preclude them from doing so.

23. The respondents contend that a confidentiality order in the terms proposed by the applicant would be inconsistent with the principles expressed by Bathurst CJ and McColl JA in Reinhard v Welker [2011] NSWCA 403 at [26] to [27]. That case concerns an application for a suppression order under the court suppression and non-publication orders act 2010 (NSW). The Court of Appeal said:

“the principle of legality favours a construction of legislation such as the CSPO Act which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common-law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle: Hogan v Hinch ([5], [27] per French CJ; see also Raybos Australia Pty Ltd (1985] to NSW LR 47 [at 55] per Kirby P.

The meaning of “necessary”

the operative condition for making a suppression order under section 8 of the CSPO Act is that it be necessary to do so, which is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice… ‘Suggests Parliament was not dealing with trivialities’”.: Hogan V Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan V Australian Crime Commission were made in relation to a legislative scheme which, while it required to the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd the District Court of NSW (at [21]).

24. The relevant word used in the Civil and Administrative Tribunal Act is “desirable”. It is submitted that the ordinary meaning of that word is “being useful or advantageous”, “worth doing”, “advisable”. The respondents submit that the Tribunal should be satisfied that it is useful or advantageous to deviate from the ordinary principles of open and transparent justice before it would make a confidentiality order. It is submitted that the Tribunal would not be so satisfied of the desirability of making such an order in circumstances where nondisclosure of the Strata Plan number, address and respondents names is sufficient to preclude the disclosure of the applicant’s home address.

The applicant’s submissions in reply – filed 4 February 2020

25. The applicant relies on reply submissions filed on 4 February 2020.

26. In answer to the respondent submissions and under a heading “Applicant’s Amended Position” the applicant seeks the following additional orders:

These orders shall not prevent the identification of any party in the proceedings or the communication of any pleading, transcript or recording of evidence or other document in the proceedings to:

i the employer of one of the parties and correspondence that amounts to a complaint.

ii any body that is responsible for disciplining members of the legal profession in a State or Territory

27. It is the applicant’s consent position that as a way forward that both protects the applicant and his family’s safety while also allowing the respondents a right to “take up” the applicant’s conduct with his employer outside of the proceedings the applicant agrees the Tribunal should make the order as set out in [26] above (see reply submissions page 9). Accordingly, the Tribunal makes such an order.

28. The applicant submits that the respondents have misconstrued the basis of the applicant’s concerns. The applicant’s submissions in reply reiterate that his concerns are as follows:

1. He fears that his wife and two daughters will be harmed or killed.

2. Concerns that the internal security processes will be made public.

3. Concerns around matters related to national security particularly around the referral of matters involving terrorist activity to the police for investigation will be made public.

4. That current criminal investigations will be compromised.

5. That XXX’s role as [Director of Security in the applicant’s workplace] will be compromised through disclosure of his letter of 15 January 2020.

6. Concerns that where suspected terrorists become aware that the [Director of Security in the applicant’s workplace] has referred them for investigation and prosecution to the Australian Federal Police that the [applicant’s workplace, XXX] and the applicant will then be made a target of a terrorist reprisal attack.

29. It is submitted that the evidence of XXX is highly relevant to the determination of the application as he is responsible for the protection of the Judges of [the applicant’s workplace].

30. The Tribunal should give significant weight to the comments made by the [Director of Security in the applicant’s workplace] where he sets out: “I am aware of the several serious and credible threats made against your Honour and that you are currently presiding over matters where issues of National Security related to terrorism have arisen.”

31. It is further submitted that the respondents’ objection to the applicant’s name being anonymised rests in the respondent’s desire to take up the applicant’s conduct in these proceedings and in relation to other matters with the applicant’s employer. It is submitted that it is unclear why the respondents have thus far refrained from taking up matters with the applicant’s employer. Should the respondents choose to complain about the conduct of the applicant to the appropriate body, these are not matters for consideration by the Tribunal. In summary, the applicant does not suggest “that objectively he be treated any differently than any other applicant before NCAT because he is a judicial officer.” The applicant submits that those matters that are subjective to his particular circumstances would cause the Tribunal to make orders pursuant to section 64(1) of the NCAT Act.

32. The Tribunal has considered the remainder of the submissions.

The respondent’s submissions dated 10 February 2020

33. The respondents in their material filed on 10 February 2020 wanted to be heard in relation to proposed amended orders proposed by the applicant. Insofar as necessary the respondents are granted leave to rely upon their further submissions dated 10 February 2020.

34. It is the respondents’ submission that there is no basis on which the Tribunal would find it desirable to anonymise the applicant’s name by using the initials MDM in any published decision concerning the proceedings. The three respondents do not oppose their full names being disclosed in any published decision of the Tribunal. Their proposal to anonymise their names was made in order to prevent a person being able to conduct a search of property held in their names in order to ascertain the applicant’s residential address. However, if the applicant is opposed to their names being anonymised in any published decision of the Tribunal they withdraw their request for their names to be anonymised and consent to the publication of their names in full

35. It is submitted that the disclosure of the applicant’s name in any published decision of the Tribunal will not increase any threat to the safety of the applicant or his family. It is submitted that the applicant’s name is published on a regular basis in court lists for the [applicant’s workplace] and in judgments issued by the [applicant’s workplace].

36. The respondents submit that the applicant has not established that it would be desirable for his name to be excluded from publication in circumstances where doing so is not necessary to prevent his address being disclosed to the public, and where his address is already known to his employer.

37. The respondents by their submissions of 10 February therefore propose the following amended orders:

1. The names of the parties are not to be disclosed in any published hearing lists, and are to be anonymised as follows in any hearing list:

1. the applicant is to be referred to as “MDM”

2. the 1^st respondent is to be referred to as “PR”

3. the 2^nd respondent is to be referred to as “TT”

4. the 3^rd respondent is to be referred to as “GW”.

2. The names of the respondents and the name and address of Strata Plan are not to be disclosed in any published decision of the Tribunal and are to be anonymised as follows:

1. The first respondent is to be referred to as “PR”

2. The second respondent is to be referred to as “TT”; and

3. The third respondent is to be referred to as “GW”.

4. The Owners – Strata Plan No. XX is to be referred to as “SP XX”.

3. The affidavit of the applicant affirmed on 28 November 2019 and the annexures are not to be disclosed to any person other than the applicant and the legal representatives of the parties, and is to be stored by the Tribunal in a sealed envelope marked ‘confidential’.

Applicant’s submissions dated 18 February 2020

38. In a letter dated 18 February 2020 the applicant clarifies that he is not opposed to any order that will permit or not prevent the identification of any party in the proceedings or the communication of any pleading, transcript or recording of evidence or other document in the proceedings to the employer of one of the parties in correspondence that amounts to a complaint or to anybody that is responsible for the disciplining of members of the legal profession in a State or Territory.

39. I have duly noted the applicant’s position and accordingly order 6 above is made by consent of the parties.

Legislation

40. Section 64 the NCAT Act is set out in full for convenience:

64 Tribunal may restrict disclosures concerning proceedings

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

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

(b) an order prohibiting or restricting the publication or broadcast of any report of 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.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

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

Consideration

41. In the initial written reasons for decision of 10 December 2019, granting interim suppression orders, the Tribunal identified a number of interests that warranted the preservation of the confidentiality of parties and documents. The particular interests that were sought to be protected were those established by the Act, namely,

1. an order prohibiting or restricting the disclosure of the name of any person, in particular the applicant;

2. an order prohibiting or restricting the publication of evidence given before the Tribunal, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal;

3. 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 particular the affidavit of 28 November 2019.

42. The orders were drafted in a way that preserved the anonymity of the parties whilst allowing the parties to provide written submissions on the issue of the suppression order before coming to a final concluded view whether the identity of the parties and the material before the Tribunal should be anonymised.

43. In my view, the issues identified by the applicant support the making of a suppression order on the bases specified in s 64(1) (a) to (d) of the NCAT Act. Having regard to the evidence and the submissions filed subsequently by both parties, I am of the view that the orders should continue and that the breadth of the orders is necessary to protect the anonymity of the applicant. I note that the parties reached a consent position in respect of proposed orders 2, 5 and 6 and the orders are made accordingly.

44. In respect of order one, whether the name of the applicant should be anonymised in all materials, (and not only in hearing lists as proposed by the respondents) it is necessary to consider whether that order is necessary. Having reviewed all the evidence, I consider that the order remains warranted. In particular I have had regard to the material filed by XXX. His letter of 15 January 2020 states as follows:

There are serious risks of physical harm to judges and their family were matters concerning their private lives and address become public knowledge. [redacted].

…

I am aware of the several serious and credible threats made against your honour and that you are currently presiding over matters were issues of National Security related to terrorism have arisen. As we have discussed, the seriousness of the matters in which you preside and the risk of harm being occasioned to you and your family should not be underestimated.

Best practice would dictate that suppressing the details of all parties is necessary in circumstances such as these when there are concerns regarding your address becoming known, and also concerns that the publication of the other parties’ names would allow information to be obtained from a Land and Property Information purchaser’s index search that would provide their address details and in turn, by the nature of the matter, Your Honours’ street address.

45. [Redacted] Insofar as necessary, I therefore am satisfied that the letter of XXX should be given considerable weight, and in particular his opinion that best practice would dictate that suppressing the details of all parties is necessary to preserve the anonymity of an officer of the Court.

46. On balance I consider that the test required by s 64 before a suppression order may be made by the Tribunal is comparable to the Court Suppression and Non-Publication Orders Act 2010 (the Suppression Act). Section 6 of the Suppression Act requires taking into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. It is clear that in considering whether a suppression order should be made pursuant to s 64 the Tribunal must consider both the applicant’s concerns and the public interest in open justice.

47. That said, the respondents conceded that the Tribunal’s power to make an order under s 64(1) is ‘less constrained than the position at common law’. The Tribunal need only be satisfied that it is “desirable” to make the order by reason of the confidential nature of any evidence or matter or “for any other reason”.

48. Because the [Director of Security in the applicant’s workplace] has raised both general and specific threats in relation to the applicant, I am comfortably satisfied that it is “desirable” that his identity and the identity of the respondents be suppressed to prevent the applicant’s address being exposed. I am not satisfied that the respondents have raised any prejudice that is occasioned by the making of the orders, real or perceived, to the proper administration of justice or to the respondents.

49. For these reasons I make the above orders.

Note: Prior to publication, these reasons for decision were redacted in accordance with order 7 and minor amendments have been made to the version published to the parties in order to correct typographical and other obvious errors.

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: 07 October 2021