Pittorino v Commissioner of Police

[2021] NSWCATAD 350

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pittorino v Commissioner of Police [2021] NSWCATAD 350

Hearing dates:

27 October 2021

Date of orders:

22 November 2021

Decision date:

22 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Dunn, Senior Member

Decision:

1. On or before 23 November 2021, the Respondent lodge with the Tribunal under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and serve on the Applicant, a copy of the document which was lodged with the Tribunal on 28 October 2021 on a confidential basis marked with proposed redactions, redacted in accordance with the redactions proposed (the redacted document).

2. Pursuant to s 59 of the ADR Act the Respondent is not required to lodge copies of the documents specified in the Confidential Statement provided to the Tribunal in support of the application, other than the redacted document.

3. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Statement and the Confidential Submissions or matters contained in the Confidential Statement and the Confidential Submissions is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

4. Pursuant to s 64(1)(c) of the NCAT Act the publication of the Confidential Statement and the Confidential Submissions or matters contained in the Confidential Statement and the Confidential Submissions is prohibited.

5.Pursuant to s 64(1)(b) of the NCAT Act the publication of the transcript and record of that part of the hearing of this application that was conducted in private is prohibited.

6.Pursuant to s 64(1)(d) the disclosure of the transcript and record of that part of the hearing of this application that was conducted in private is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

7.Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the documents specified in the Confidential Statement, other than the redacted document, and the aspects of the redacted document which are redacted (Confidential Material) or matters contained in the Confidential Material is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal, until further order.

8.Pursuant to s 64(1)(c) of the NCAT Act the publication of the Confidential Material is prohibited, until further order.

9.Pursuant to ss 64(1)(b) and 64(1)(d) of the NCAT Act, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or disclosed to the Applicant or the public.

10.The proceedings be listed for directions on 30 November 2021 at 10.30am at John Maddison Tower, Level 10, 86-90 Goulburn Street Sydney, NSW.

Catchwords:

LICENSING - application for firearms licence – confidentiality application

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) – ss 53(9), 59

Civil and Administrative Tribunal Act 2013 (NSW) – ss 49(2), 64(1)(b), (c) and (d)

Firearms Act 1996 (NSW) – s 11

Cases Cited:

Brennan v State of New South Wales [2006] NSWSC 167

Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61

CYL v YZA [2017] NSWCATAP 105

Fisher v NSW Police [2002] NSWADT 267

Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158

Hassall v Commissioner of Police [2021] NSWCATAD 101

Himo v Commissioner of Police [2021] NSWCATAD 191

Lidby v Commissioner of Police [2021] NSWCATAD 122

Registrar of Community Housing [2019] NSWCATAD 61

Simring v Commissioner of Police [2009] NSWSC 270

Sobh v Commissioner of Police [2021] NSWCATAD 260

State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69

Zreika v Commissioner of Police [2020] NSWCATAD 202

Category:

Procedural rulings

Parties:

Robert Bartolo Pittorino (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant: self-represented
Maddocks Lawyers (Respondent)

File Number(s):

2021/226550

Publication restriction:

1. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Statement and the Confidential Submissions or matters contained in the Confidential Statement and the Confidential Submissions is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

2. Pursuant to s 64(1)(c) of the NCAT Act the publication of the Confidential Statement and the Confidential Submissions or matters contained in the Confidential Statement and the Confidential Submissions is prohibited.

3.Pursuant to s 64(1)(b) of the NCAT Act the publication of the transcript and record of that part of the hearing of this application that was conducted in private is prohibited.

4.Pursuant to s 64(1)(d) the disclosure of the transcript and record of that part of the hearing of this application that was conducted in private is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

5.Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the documents specified in the Confidential Statement, other than the redacted document, and the aspects of the redacted document which are redacted (Confidential Material) or matters contained in the Confidential Material is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal, until further order.

6. Pursuant to s 64(1)(c) of the NCAT Act the publication of the Confidential Material is prohibited, until further order.

7.Pursuant to ss 64(1)(b) and 64(1)(d) of the NCAT Act, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or disclosed to the Applicant or the public..

REASONS FOR DECISION

Background

1. The Applicant lodged an application to the Tribunal on 9 August 2021 seeking a review of the decision of the Respondent to refuse his application for a Category AB Firearms Licence. The Respondent refused that application under s 11(7) of the Firearms Act 1996 (NSW) on the basis that the Respondent considers that the issue of a licence to the Applicant would be contrary to the public interest.

2. The Applicant was notified of that decision on 21 June 2021. On 22 June 2021 the Applicant lodged an application for internal review of that decision. The Applicant was not notified of the outcome of the internal review decision within 21 days. As such the internal review was taken to be finalised on or about 13 July 2021 under s 53(9)(b) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

3. This is an application by the Respondent seeking confidentiality orders in respect of certain documents specified in the confidential statement of Acting Senior Intelligence Analyst Deakin Yates (Mr Yates) dated 14 October 2021 (Confidential Statement) provided to the Tribunal in accordance with the orders of the Tribunal made on 21 September 2021.

4. The application was originally made in respect of all of the documents specified in the Confidential Statement. However, at the hearing of the application, the Respondent’s solicitor indicated that the application was no longer pressed in respect of one document, other than in respect of certain aspects of that document it proposed to redact. On 28 October 2021 the Respondent filed with the Tribunal on a confidential basis a version of that document with the redactions proposed and it is now proposed that the document, as redacted, will be lodged under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and be made available to the Applicant (the redacted document).

5. The confidential material in respect of which the application is made therefore comprises the documents specified in the Confidential Statement, other than the redacted document, and the aspects of the redacted document it is proposed be redacted (Confidential Material).

6. The Respondent seeks the following orders:

1. pursuant to s 59 of the ADR Act, the Respondent not be required to lodge copies of the documents specified in the Confidential Statement other than the redacted document;

2. pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) the publication of the Confidential Material and the Confidential Statement or matters contained in the Confidential Material and the Confidential Statement be prohibited;

3. pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Material and the Confidential Statement or matters contained in the Confidential Material and Confidential Statement be restricted to the Respondent, the legal representatives for the Respondent and the Tribunal; and

4. pursuant to ss 64(1)(b) and (c) of the NCAT Act, the publication and reporting of the hearing of this application, including the evidence given during the hearing, be prohibited.

7. In support of the application the Respondent filed an open statement of Mr Yates dated 14 October 2021, together with open submissions dated 15 October 2021 which explains that the Confidential Material comprises documents which relate to the Applicant and documents which relate to other persons the Respondent considers to be close associates of the Applicant.

8. When the matter came before the Tribunal on 27 October 2021 the Applicant confirmed that he had received a copy of the open statement of Mr Yates and the open submissions and was invited to make submissions on the Respondent’s application. The Applicant indicated that he was unable to make submissions because he was unaware of the contents of the documents in respect of which the confidentiality orders are sought. He indicated that it will be his submission that what other people may or may not have done is not relevant to the question as to whether he should hold a firearms licence.

9. I then made an order pursuant to s 49(2) of the NCAT Act that the balance of the hearing in respect of the Respondent's application be conducted in private in the absence of the Applicant, by reason of the confidential nature of the documents to be considered by the Tribunal.

Relevant Legislation

10. Section 58(1) of the ADR Act provides that an administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must lodge with the Tribunal a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

11. Section 58(5) of the ADR Act provides that the Tribunal is to grant reasonable access to the Applicant in the proceedings to any copy of a document lodged under s 58 by an administrator.

12. Section 59 of the ADR Act provides that an administrator may apply to the Tribunal for an order that the administrator not be required to lodge a copy of a document under s 58.

13. On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if, relevantly, it considers that, if an application were made under s 64 of the NCAT Act, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.

14. Section 64 of the NCAT Act provides:

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:

…

(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.

15. Accordingly, in order to determine whether it is appropriate to make an order under s 59 of the ADR Act, the Tribunal must consider whether, if an application were made under section 64 of the NCAT Act, it would be appropriate to make such an order.

The evidence

16. The Respondent relied on the open statement Mr Yates dated 14 October 2021.

17. Mr Yates has been acting in the position of Senior Intelligence in the NSW Police Force (NSWPF) since August 2021, and is currently working in the Compliance and Intelligence Unit in the Firearms Registry. As a requirement of that role, he has completed a bronze level intelligence certification training with the NSWPF. His substantive position is a Senior Adjudicator with the NSWPF. Prior to this role he was a Senior Intelligence Analyst in the Australian Defence Force (ADF) from 2018 to November 2020. As a requirement of that role, he completed six months of intensive intelligence courses for the ADF.

18. Mr Yates explains that the Confidential Material the subject of the Respondent’s application comprises intelligence reports and Computerised Operational Policing System (COPS) event records held by the NSWPF in relation to the Applicant and close associates of the Applicant.

19. Mr Yates further explains that:

1. COPS is an electronic database which is used as a record keeping system to capture, record and store operational information and intelligence on an organisation wide basis. He explains that it comprises a number of sub-databases including “Events” and “Intelligence”. The Intelligence sub-database system is used to create, update and enquire on all information linked to an information report;

2. an information report is the method by which information that is, or could be, of interest to Police is recorded. Such information might be derived from a number of different types of sources including confidential sources or informants. It might also be based on observations or reports from a member of the public anonymously or confidentially to Police including through Crimestoppers;

3. once on the COPS database, the information is used to identify, assess and evaluate the law enforcement environment including the detection and prevention of crime;

4. the COPS database is a secure and confidential database that can only be accessed by law enforcement personnel with appropriate security clearance.

20. Mr Yates states that he has reviewed the Confidential Material and considers that disclosure of the material would or could:

1. reveal a confidential source of information to Police;

2. alert the Applicant to sensitive information that NSWPF officers have gathered about him and his associates;

3. reveal personal and private information of third parties;

4. reveal specific information, the disclosure of which could identify confidential sources of information to law enforcement and place identified persons at risk of harm;

5. expose the confidential source to a risk of harm if it becomes known that they supplied information to police (from which information their identity may be capable of being known);

6. expose police methodology; and/or

7. undermine the community policing model which encourages (and relies on) the community to report criminal activity to the police anonymously and in confidence.

21. Mr Yates states that the Confidential Material is accessible only by law enforcement personnel with clearance to access it.

22. In his view, disclosure of the Confidential Material would also allow a picture to emerge showing what matters are known to the NSWPF about the activities of persons of interest known to police and connected to the applicant, and from which inferences could be drawn as to what matters are therefore not known to the NSWPF. While it is possible that the Applicant or others may suspect or know some of the information, disclosure of the Confidential Material may confirm any such suspicions.

23. Further, he says that law enforcement agencies such as NSWPF rely heavily on assistance from persons who provide confidential sources of information. Such confidential information is widely regarded as an important and useful form of intelligence. If the identity of any individuals providing confidential assistance is disclosed, or such individuals were suspected, rightly or wrongly, of being confidential sources, they may be subjected to acts of retribution. Those who may have supplied information to the police may in the future be deterred from doing so.

24. The Respondent also relied upon a Confidential Statement of Mr Yates dated 14 October 2021 which annexes the Confidential Material. Mr Yates did not give any oral evidence and no other oral evidence was given before me in respect of the application. The Respondent also relied on Confidential Submissions which were filed by the Respondent in relation to the application (Confidential Submissions).

25. [NOT FOR PUBLICATION]

26. [NOT FOR PUBLICATION]

27. [NOT FOR PUBLICATION]

28. [NOT FOR PUBLICATION]

29. [NOT FOR PUBLICATION]

30. [NOT FOR PUBLICATION]

31. [NOT FOR PUBLICATION]

32. [NOT FOR PUBLICATION]

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

35. [NOT FOR PUBLICATION]

Consideration

36. In order to determine whether it is appropriate to make an order under s 59 of the ADR Act that the Respondent not be required to lodge a copy of a document, the Tribunal must consider whether, if an application were made under section 64 of the NCAT Act, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the relevant document.

37. As the Tribunal noted in Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at 26:

“The starting point in deciding whether an order under s 64(1) should be made is, of course, the presumption set out in s 49 that proceedings are to be conducted in public. That provision is in conformity with the rules of procedural fairness and in ensuring that a party knows the case it has to meet.”

38. In considering whether to make an order under s 64 of the NCAT Act, however, the Tribunal must consider whether it is “desirable” to make an order by reason of the “confidential nature of any evidence or matter or for any other reason”. The Tribunal’s power to make confidentiality orders is less constrained than the position at common law: CYL v YZA [2017] NSWCATAP 105 at [102].

39. The relevant authorities including Grant v Commissioner of Police [2020] NSWCATAD 158 and State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69 have been summarised by the Tribunal in a large number of matters recently including Lidby v Commissioner of Police [2021] NSWCATAD 122, Himo v Commissioner of Police [2021] NSWCATAD 191 and Sobh v Commissioner of Police [2021] NSWCATAD 260.

40. In Grant the Tribunal summarised the principles relevant to making orders of the nature sought by the Respondent as follows (footnotes omitted):

18. Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that "[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise" (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, "the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing" (CYL v YZA [2017] NSWCATAP 105 at [94]).

19. The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (NCAT Act, s 38(2)). Section 64(1) (d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable " should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)).

20. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d):

Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.

41. The Appeal Panel examined the relevant principles at length in Dezfouli (when examining the equivalent provisions in the Administrative Decisions Tribunal Act 1997 (NSW)) and stated at [50] – [53] and [81] – [82] that:

50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is ‘really necessary to secure the proper administration of justice in proceedings before it’. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act.

52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person – most commonly a witness – involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym.

53 In such cases, the courts have applied a criterion of ‘necessity’, such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally – i.e., in future proceedings as well as in the proceedings currently being heard. ….

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (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.

82 In view of Ms Johnson’s submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition….”

(emphasis added)

42. For the following reasons I consider that the evidence is sufficient to satisfy me that the circumstances of this case are “special” such that, if the Confidential Material were to be admitted into evidence, it would be appropriate to make an order under s 64 (1) (c) of the NCAT Act prohibiting or restricting the publication of that material.

43. Mr Yates’ open statement explains in general terms the confidential and sensitive nature of the Confidential Material, which can only be accessed by law enforcement personnel who hold the necessary clearance to access it. The Confidential Material has been collated and maintained by NSWPF to assist in monitoring and investigation of criminal activity and those persons who participate in unlawful conduct. Mr Yates explains that it is necessary that such intelligence holdings remain confidential and not known to those who are the subject of it.

44. I accept that disclosure of the Confidential Material would or could expose police methodology, reveal confidential sources of information, reveal specific information the disclosure of which could identify confidential sources of information to police and potentially undermine the community policing model (which relies on the community to report criminal information to police anonymously and in confidence) or reveal personal and private information of third parties.

45. The Tribunal has recognised that there is significant public interest in protecting police investigative techniques: see for example Brennan v State of New South Wales [2006] NSWSC 167, the other authorities referred to in Lidby at [39].

46. [NOT FOR PUBLICATION]

47. It is also recognised that there is significant public interest in protecting the confidentiality of police sources and not disclosing information concerning informants: see for example Fisher v NSW Police [2002] NSWADT 267 at [34], Simring v Commissioner of Police [2009] NSWSC 270 at [69] and Zreika v Commissioner of Police [2020] NSWCATAD 202 at [32] and Lidby.

48. [NOT FOR PUBLICATION]

49. Further some of the information in the Confidential Material, as well as revealing police intelligence and methodologies, relates to sensitive personal and private information of third parties: Himo, Hassall v Commissioner of Police [2021] NSWCATAD 101.

50. [NOT FOR PUBLICATION]

Conclusion

51. Accordingly, I consider that it is appropriate to make an order under s 59 of the ADR Act that the Respondent not be required to lodge a copy of the documents which comprise the Confidential Material.

52. It is also appropriate to make confidentiality orders in respect of the material relating to the Respondent’s application. I consider that it is appropriate to make orders prohibiting the publication of the Confidential Statement and restricting the disclosure of that statement to the Respondent, the Respondent’s legal representatives and the Tribunal. While the Respondent has not sought such an order, I similarly consider such orders are appropriate to be made in respect of the Confidential Submissions. The Confidential Statement was evidence before me in support of the application and the Confidential Submissions were lodged with the Tribunal, in accordance with directions made by the Tribunal, in support of the Respondent’s application. If documents of this nature were to be published or made available to the Applicant, it may deter administrators from making such applications. It is also appropriate to prohibit the publication and to restrict the disclosure of the transcript and record of that part of the hearing of the application heard in private.

53. However, in so far as the orders sought by the Respondent in respect of the Confidential Material are concerned, in my view they are framed too broadly and it would not be appropriate to make final orders in those terms at this time. Sections 64 (1)(c) and (d) apply to documents lodged with the Tribunal as well as evidence given before the Tribunal or documents received into evidence by the Tribunal. The Confidential Material has been lodged with the Tribunal on a confidential basis, but it remains for the Tribunal to decide whether it will be received into evidence in the substantive proceedings.

54. Given that, as the Tribunal noted in Grant at [24], there may be some circumstances in which s 64(1)(d) of the NCAT Act implicitly permits a denial of procedural fairness, it remains for the Tribunal in the substantive proceedings to determine whether to admit into evidence all or part of the Confidential Material, the weight to be given to it and whether, in all of the circumstances an order should be made prohibiting the publication of that material and/or restricting the disclosure of that material.

55. I note that the Respondent’s solicitor has indicated to the Tribunal that, to the extent that the Respondent seeks to rely upon the Applicant’s association with other persons, the names of those persons will be identified in the written submissions to be filed in the substantive proceedings.

56. [NOT FOR PUBLICATION]

57. However, it will ultimately be a matter for the Tribunal in the substantive proceedings to determine whether, in all of the circumstances, it is desirable to make orders in the terms sought in respect of any of the Confidential Material which is received in evidence by the Tribunal.

58. In the meantime, it is appropriate to make orders under ss 64(1)(c) and (d) in respect of the Confidential Material which has been lodged with the Tribunal, pending any order made in respect of that material at the hearing of the substantive proceedings.

Orders

59. The Tribunal orders that:

1. On or before 23 November 2021, the Respondent lodge with the Tribunal under s 58 of the ADR Act and serve on the Applicant, a copy of the document which was lodged with the Tribunal on 28 October 2021 on a confidential basis marked with proposed redactions, redacted in accordance with the redactions proposed (the redacted document).

2. Pursuant to s 59 of the ADR Act the Respondent is not required to lodge copies of the documents specified in the Confidential Statement provided to the Tribunal in support of the application, other than the redacted document.

3. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Statement and the Confidential Submissions in support of the application or matters contained in the Confidential Statement and the Confidential Submissions is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

4. Pursuant to s 64(1) (c) of the NCAT Act the publication of the Confidential Statement and the Confidential Submissions or matters contained in the Confidential Statement and the Confidential Submissions is prohibited.

5. Pursuant to s 64(1)(b) of the NCAT Act the publication of the transcript and record of that part of the hearing of this application that was conducted in private is prohibited.

6. Pursuant to s 64(1)(d) the disclosure of the transcript and record of that part of the hearing of this application that was conducted in private is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

7. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the documents specified in the Confidential Statement, other than the redacted document, and the aspects of the redacted document which are redacted (Confidential Material) or matters contained in the Confidential Material is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal, until further order.

8. Pursuant to s 64(1)(c) of the NCAT Act the publication of the Confidential Material is prohibited, until further order.

9. Pursuant to ss 64(1)(b) and 64(1)(d) of the NCAT Act, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or disclosed to the Applicant or the public.

10. The proceedings be listed for directions on 30 November 2021 at 10.30am at John Maddison Tower, Level 10, 86-90 Goulburn Street Sydney, NSW.

**********

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: 22 November 2021