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New South Wales |
Case Name: | Ritson v Commissioner of Police (No 2) |
Medium Neutral Citation: | [2022] NSWCATAD 89 |
Hearing Date(s): | On the papers |
Date of Orders: | 14 March 2022 |
Decision Date: | 14 March 2022 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | P French, Senior Member |
Decision: | (1) This application is heard and determined together with the agency’s revocation application in application no. 2020/00141477. |
Catchwords: | ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – application under s 52(2) of the Administrative Decisions Review Act 1997 for an order requiring the agency to provide the applicant with an adequate statement of reasons for an administratively reviewable decision pursuant to section 49 of that Act |
Legislation Cited: | Administrative Decisions Review Act 1997 |
Cases Cited: | Commissioner of Police (NSW) v Ritson [2020] FCCA 1803 |
Texts Cited: | NCAT, Administrative and Equal Opportunity Division Guideline, Occupational Division Guideline, Confidentiality, privacy and publication, August 2017 |
Category: | Procedural rulings |
Parties: | Brendan Ritson (Applicant) |
Representation: | Brendan Ritson (Self-represented) |
File Number(s): | 2020/00178009 |
Publication Restriction: | Publication of this judgment, other than to the parties, is prohibited before 28 March 2022. |
REASONS FOR DECISION
Introduction
The substantive application before the Tribunal was an application by Brendon Ritson (the applicant) under section 52(2) of the Administrative Decisions Review Act 1997 (ADR Act) for an order that would require the Commissioner of Police (the agency) to provide him with an adequate statement of reasons for an administratively reviewable decision under s 49 of that Act. The application arose from an internal review the agency had conducted under s 53 of the Privacy and Personal Information Act 1998 (PPIP Act) on the application of the applicant in relation to conduct of the agency that the applicant contended was contrary to s 8(2) of the PPIP Act, namely, that an address at which he had been served with a Creditor’s Petition by the agency had been collected by the agency by unlawful means. The applicant contended that the internal review decision the agency issued to him on 5 May 2020 did not meet the requirements of s 49(3) of the ADR Act. This application was made to the Tribunal on 15 June 2020 (the substantive application).
The substantive application first came before the Tribunal, differently constituted, for a Case Conference on 30 June 2020. Among other orders made at the conclusion of that Case Conference was Order 1, which is a non-publication order purportedly made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) (the non-publication order) that directs:
1. The publication or broadcast of the name of Brendan Ritson [(pseudonym redacted)] is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: 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.
In effect, the non-publication order incorporates two distinct elements: a “pseudonym order” and a broader non-publication order. A close reading of s 64 leads to the conclusion that the pseudonym order is founded upon s 64(1)(a), but the non-publication order must otherwise be founded on s 64(1)(c) because 64(1)(a) does not provide power to regulate the publication of matters contained in documents before the Tribunal (it provides power to regulate the ‘disclosure’ of a person’s name), whereas s 64(1)(c) does contain such a power. Nevertheless, the order has taken effect according to its terms.
To provide some context for this order, I note that it is the usual practice in privacy proceedings before the Administrative and Equal Opportunity Division for the Divisional Registrar to assign an applicant a pseudonym on receipt of an application which remains in force until the application is first listed before the Tribunal. At the first listing, the Tribunal considers if an order ought to be made pursuant to s 64 to restrict the disclosure of information in the proceedings (including by assigning the applicant a pseudonym) and if so, in what terms.
The policy reason behind making such an order is the protection of the applicant’s identity so that their personal information is not revealed or their privacy compromised in the course of the proceedings: [citation redacted]; see further NCAT, Administrative and Equal Opportunity Division Guideline, Confidentiality, privacy and publication, August 2017.
However, the making of such an order is at the discretion of the Tribunal, and that discretion must be exercised judicially, having regard to established principle. Non-publication orders are not mandated in privacy proceedings by the PPIP Act or otherwise. In this regard, s 6 of the PPIP Act relevantly provides that nothing in that Act affects the manner in which the Tribunal exercises its judicial functions, which are defined to mean such functions as relate to the hearing and determination of proceedings.
The Senior Member who made the non-publication order did not record any written reasons for making this order. It is not apparent from the material before me whether the order was made in response to an application for such an order by the applicant or by the Tribunal of its own motion. Certainly, no written application for such an order was filed by the applicant before the order was made, but he may have made the application orally during the Case Conference. I also note that neither party has filed a transcript of the proceedings on that date. In summary, there is nothing before me, other than the contentions of the parties, to indicate why that order was made.
On 24 August 2020 the applicant sought to withdraw the substantive application, which was after the close of evidence and while the Tribunal was deliberating on the papers. This was opposed by the agency on the basis that it sought its costs of that proceeding. On 2 September 2020 Senior Member Gracie notified the parties that in light of this development he would cease consideration of the matter on the papers and the preparation of his reasons. He issued directions to the parties for the filing and exchange of submissions in relation to the withdrawal and costs.
In a decision published on [date redacted] Senior Member Gracie dismissed the application pursuant to s 55(1)(a) of the NCAT Act on the basis that it was withdrawn, and determined the agency’s application for costs substantially in its favour, awarding it a lump sum of $5000.00: [citation redacted]. That costs decision was the subject of an unsuccessful appeal by the applicant which was determined in a Principal Judgment published on [date redacted]: [citation redacted]. The agency’s costs application in relation to that appeal was determined in a Costs Decision published on [date redacted]: [citation redacted].
In the context of the application that is before the Tribunal for determination now, the applicant relies upon orders 7 and 4 respectively of the Appeal Panel’s Principal Judgment and Costs Decision, which are in the following terms:
7. The order made in the proceedings at first instance pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication or the broadcast of the name of the Applicant [(pseudonym redacted)] continues to apply to the appeal proceedings).
4. Orders previously made regarding the anonymisation of appellant continue to apply.
By an Application for Miscellaneous Matters filed on 23 September 2020 the agency applied for an order pursuant to s 64(3) of the NCAT Act to revoke the non-publication order made on 30 June 2020. It is this application that is before me for determination (the revocation application). Although it is the agency that is the applicant, and Mr Ritson who is the respondent, to the revocation application for the sake of simplicity I shall continue to refer to Mr Ritson as ‘the applicant’ and the Commissioner for Police as ‘the agency’ in these reasons in accordance with their status in the substantive proceedings.
Procedural history
The revocation application was first listed before Senior Member Gracie at a Case Conference on 12 October 2020. The Senior Member declined to deal with the application at that time because it did not come within the scope of the orders he made on 2 September 2020. In this respect he stated as follows:
…
In response to the matters now raised by the applicant, I confirm the following:
1. As my initial orders made clear, I propose to deal with the costs application by the respondent before making any order for the withdrawal and dismissal of the proceedings.
2. The respondent’s request for an application to vacate the earlier pseudonym order does not come within the scope of those orders and was made after notice of the applicant’s intention to withdraw. I do not propose to deal with that application in my decision on costs or without further notice to the parties.
3. My orders with respect to the costs application were not contingent on the outcome of any other matter in the Tribunal. I am only concerned with the costs of the present proceedings and will deal with any evidence served by the parties in support of their respective positions without regard to the outcome of another proceeding at some time in the future.
The respondent (sic) seeks to withdraw his application. The respondent seeks its costs. That is all I will deal with in my decision.
At paragraph [11] and [12] of his judgment in [citation redacted] Senior Member Gracie states the following with respect to the revocation application:
[excerpt from reasons redacted]
The revocation application was not listed before the Tribunal for determination after finalisation of the substantive application or the costs appeal. On 23 November 2021 a separate revocation application filed by the agency in related proceedings between the parties (case number 2020/00141477) came before the Tribunal for a Case Conference. At that Case Conference the agency agitated what it considered the unfinalized revocation application in the present proceedings requesting its determination. In response, the Tribunal made the following notation on the orders it made that day in the related proceedings:
10. The Tribunal notes:
…
(2) The respondent states that a similar order is sought in 2020/178009 which has now been finalised. If it seeks an order that determination of the revocation issue in that matter be determined together with these proceedings it is to make that application, copied to the applicant, for a timetable in the same terms above, by 26 November 2021.
As a consequence of that notation, on 24 November 2021 the agency made a further Application for Miscellaneous matters, which in short summary, requested the Tribunal to hear and determine its application for an order revoking a non-publication order in this matter together with its revocation application in case number 2020/00141477.
That application resulted in both revocation applications being listed before the Tribunal, differently constituted, for a Case Conference on 14 December 2021. At that listing, the Tribunal made the following notation:
The Tribunal notes that the respondent is of the view that the revocation application in matter 20/00178009 remains undetermined and should be dealt with along with the application for revocation in [case number 2020/00141477]. The submissions of the parties are to address the effect of paragraph 12 of the reasons for decision in matter 2020/00178009 dated 8 December 2020
Time for the parties to comply with the procedural directions for the filing and exchange of evidence made in case number 2020/00141477 on 23 November 2021 were extended at this case conference in relation to both applications.
Evidence and submissions
The parties have submitted the following material in relation to the present revocation application which I have considered in determining its outcome:
Agency
(a)Application for Miscellaneous Matters, dated 23 September 2020,
(b)Affidavit of Tom Alexander Allchurch, dated 23 September 2020,
(c)“Submissions of Respondent on Applications to Revoke Pseudonym”, dated 8 December 2021,
(d)Affidavit of Tram Nguyen, dated 8 December 2021, with annexure A,
(e)“Reply Submissions of Respondent on Applications to Revoke Pseudonym”, dated 30 December 2021,
(f)Affidavit of Tram Nguyen affirmed on 30 December 2021, with annexures A to E,
(g)Letter of objection to the Applicant’s Supplementary Submissions, dated 12 January 2022.
Applicant
(a)“Applicant’s Submissions”, dated 28 December 2021.
(b)“Applicant’s Supplementary Submissions”, with two annexures, dated 11 January 2022.
By its letter dated 12 January 2022 the agency objected to the filing of the Applicant’s Supplementary Submissions on the basis that the procedural directions did not provide for that submission to be made and that the applicant had not sought leave to file these submissions. It was submitted that the applicant is an experienced litigator and knew, or ought to have known, of his obligation to obtain leave before he could re-open his case. Nevertheless, the letter goes on to respond to these submissions.
I have determined to accept the applicant’s Supplementary Submissions into evidence despite them being filed without leave. The Tribunal has an obligation to take such measures as are reasonably practicable to ensure that parties to a proceeding have a reasonable opportunity to be heard and have their submissions considered: ss 38(5)(c) of the NCAT Act. While that obligation is not unlimited (Mesiha v Murrell [2017] NSWCATAP 1), it is reasonably practicable to read these 5 pages in this case. The Tribunal may inform itself in such manner as it thinks fit subject to the rules of natural justice (or procedural fairness): 38(2) of the NCAT Act. In this case the agency has taken an opportunity to reply to the substance of the applicant’s submissions, as well as to objecting to their tender, and this reply can also be admitted into evidence and also considered. There is therefore no unfairness arising from the Tribunal informing itself in this manner.
Dispensing with a hearing
Section 50(1) of the NCAT Act provides that a hearing is required for proceedings in the Tribunal except, relevantly, if the Tribunal makes an order under that section dispensing with a hearing (s 50(1)(c)). 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 other documents or material lodged with or provided to the Tribunal: s 50(2). However, the Tribunal may not make an order dispensing with a hearing unless it has first afforded the parties an opportunity to make submissions about the proposed order, and taken such submissions into account: s 50(3).
At a Case Conference conducted in case number 2020/000141477 on 23 November 2021, the Tribunal raised with the parties the question whether a hearing of that revocation application was required or could be dispensed with. Procedural direction 4 issued at the conclusion of that Case Conference directed the parties to address this issue in their submissions. By operation of the orders made in that and the present application on 14 December 2021, I am thus satisfied that both parties have been provided with an opportunity to make submissions about a proposed order dispensing with a hearing in relation to both revocation applications.
The Agency has not indicated any view in response to Order 4 in any of its submissions. It may thus be taken not to have indicated a view that a hearing is required. In his submissions filed on 28 December 2021 the applicant indicates at [17] that he does not oppose this application being determined on the papers or together with the revocation application made in case no. 2020/00141477. I have considered the response of both parties to the proposed order.
Having regard to the issue to be determined, which is of narrow compass, the materials and submissions filed and exchanged by the parties, and the high degree of joinder of the parties’ opposing submissions, I am satisfied that the issue for determination can be adequately dealt in the absence of the parties by considering the written material they have filed. I therefore dispense with a hearing of the application.
Can the revocation application be determined?
Two issues arise given the procedural history of this application set out above and the applicant’s contentions. First, has the revocation application been previously determined, such that it is no longer before the Tribunal? Second, if it has not been determined, is it maintainable in circumstances where the substantive application has been dismissed on the basis that it was withdrawn.
The applicant submits that the final sentence of paragraph 12 of Senior Member Gracie’s decision of [date redacted] indicates that the revocation application was dismissed. He contends that the agency failed to appeal from that decision, and that the application having been determined to finality, cannot be re-agitated now.
The agency contends that its revocation application has never been determined and that, in paragraph 12, Senior Member Gracie merely confirms his decision not to deal with that application in conjunction with the agency’s costs application, as he had indicated in the directions he made on 12 October 2020. The agency also submits that Senior Member Gracie made no order dismissing its revocation application in his decision on [date redacted] and that, apart from in paragraph 12 which appears in a section called “background”, there is no other reference to the revocation application in the decision, which indicates that it was not determined.
I am satisfied that the revocation application has not been determined by the Tribunal. That is not the meaning to be attributed to the last sentence of paragraph 12 of Senior Member Gracie’s decision on [date redacted]. The Senior Member is merely recounting the decision he made on 12 October 2020 not to deal with the revocation application in conjunction with the agency’s costs application. That is put beyond doubt by the absence of any order dismissing the revocation application.
I am also satisfied that the revocation application remains maintainable by the agency notwithstanding that the substantive proceedings have been dismissed. The applicant had indicated an intention to withdraw the application before the revocation application was made (24 August 2020) but the proceedings remained on foot until they were dismissed on 8 December 2020. The revocation application was thus made before the dismissal of the proceedings (on 23 September 2020). Even if it had not been, that would not prevent the application being made. No temporal limit is imposed on the exercise of discretion conferred by s 64(3). It is thus capable of being exercised while a proceeding is on foot, or after it has been finalised.
Should the revocation applications be heard together?
As noted above, the applicant does not oppose the agency’s application for this revocation application to be determined in conjunction with its revocation application in case number 2020/000141477. I am also satisfied that there is sufficient commonality in subject matter between both applications to make this appropriate. Nevertheless, there are some important differences in the issues to be determined between the applications that make it appropriate for me to issue separate decisions, notwithstanding that the reasons in relation to the ultimate issues will otherwise be practically identical.
Material facts
I consider the following to be the material facts on the basis of which the revocation application is to be determined.
The substantive application concerns conduct of the agency in relation to an address for the applicant (the address information). The applicant contends that this address information was obtained by the agency by unlawful means contrary to section 8(2) of the PIPA Act.
The applicant’s complaint about the agency’s conduct arises from an affidavit dated 26 November 2019 filed by a solicitor acting for the agency on a Creditor’s Petition brought against the applicant under the Bankruptcy Act 1966 (Cth) which was then before the Federal Circuit Court of Australia: Commissioner for Police New South Wales Police Force v Brendan Ritson SYG2114/2019 (the Federal Circuit Court proceedings). That affidavit was given in support of an application for substituted service of the Creditor’s Petition on the applicant at the address in issue. The affidavit sets out the address information.
On 4 December 2019 Registrar Morgan made orders in those proceedings for substituted service of the Creditor’s Petition on the applicant at two addresses, including the address in issue in the proceedings before the Tribunal. The address is set out in full at Order 5(b) of the Court’s orders. The Orders of the Court are accessible to the public through the Commonwealth Law Portal.
Final judgment in the Federal Circuit Court proceedings was given in a decision published on 12 August 2021: Commissioner of Police (NSW) v Ritson (No.5) [2021] FCCA 1835. There are also four earlier published judgments on interlocutory issues in those proceedings: Commissioner of Police (NSW) v Ritson [2020] FCCA 1803; Commissioner of Police (NSW) v Ritson (No. 2) [2020] FCCA 3035; Commissioner of Police (NSW) v Ritson (No.3) [2020] FCCA 3512; and, Commissioner of Police (NSW) v Ritson (No.4) [2021] FCCA 333.
Additionally, there three published decisions from appeal proceedings brought by the applicant in the Federal Court against decisions made in the Federal Circuit Court proceedings: Ritson v Commissioner of Police, New South Wales Police Force (No.2) [2021] FCA 93; Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 5; Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 1315.
The Federal Circuit Court Proceedings are not subject to any suppression or non-publication order made under the former Part 6A of the Federal Circuit Court of Australia Act 1999, or the current Part 7 of the Federal Circuit and Family Court of Australia Act 2021. Nor are any of the proceedings in the Federal Court subject to suppression or non-publication orders made under Part VAA of the Federal Court Act 1976.
Information concerning all of proceedings involving the parties in the Federal Courts is publicly available on the Commonwealth Law Portal. All judgments entered in those proceedings are publicly available on Each of the judgments referred to above sets out in detail the background and subject matter of the proceedings, being the circumstances that give rise to the Creditor’s Petition.
On 22 September 2020 an article appeared in the Daily Telegraph at page 11 of that day’s edition under the heading “Long arm of the lawsuit – Former cop & NSW Police at loggerheads in court”. This article reports in some detail the substance of the proceedings between the parties before the Federal Circuit Court, being the agency’s Creditor’s Petition, earlier proceedings between the parties that gave rise to the debt, the applicant’s history of litigation in several jurisdictions, and background work place incidents that occurred before the applicant ceased employment as a Police Officer with the agency in 2011.
Contentions of the parties
Agency
The Agency contends that the non-publication order made in these proceedings is no longer desirable and ought to be revoked. It contends that the non-publication order is incompatible with the common law presumption in favour of open justice which is enshrined in ss 3(f) and 49 of the NCAT Act. It is submitted that this presumption should not readily be displaced and that the power in s 64(1) of the NCAT Act therefore ought to be exercised sparingly. It submits that at the time the non-publication order was made the applicant had only expressed a generalised concern about his privacy and that this was not sufficient to justify the making of the order at that time or to continue the non-publication order now. It is submitted that the applicant has not provided any persuasive evidence to substantiate any prejudice he would suffer if his name were known in these proceedings that provides a proper basis for the displacement of the presumption in favour of open justice.
The agency contends that the non-publication order serves no practical purpose because the whole of the circumstances that give rise to the substantive application have been publicly disclosed in connection with the applicant’s name in proceedings between the parties in the Federal Circuit Court and Federal Court concerning its Creditors Petition, and in the Daily Telegraph article published on 22 September 2020. In this respect it is submitted that the non-publication order cannot protect the applicant’s privacy in relation to these matters, even if that was desirable, because they have already been fully publicly disclosed. For similar reasons, it is submitted that the applicant cannot suffer any additional embarrassment or damage to his reputation if his name were known in connection with the substantive application because any such embarrassment and reputation damage has already resulted from the proceedings between the parties in the Federal Courts. The agency contends that, in any event, potential embarrassment and reputation damage are not a sufficient basis upon which a non-publication order may be made or continued.
Additionally, the agency contends that the non-publication order is prejudicial to its reasonable interests. First, it is contended that the non-publication order potentially exposes it to unmeritorious contempt proceedings that may be initiated by the applicant in relation to its alleged non-compliance with the order. Second, the agency contends that the non-publication order will inhibit its capacity to enforce any costs order that may ultimately be made in the proceedings.
The agency submits that the Tribunal must determine if the non-publication order continues to be desirable in the context of the present case without being bound by similar orders that have been made in several other administrative review proceedings involving the parties, where the applicant has been assigned the same pseudonym. It is submitted that the existence of these other orders cannot be a reason for not revoking the non-publication order in this case.
Applicant
The applicant submits that the agency’s application ought to be dismissed on the basis that it is an abuse of process because it is an attempt to “circumvent” an appeal against the non-publication order, and the orders 7 and 4 of the orders of the Appeal Panel (set out at paragraph 10 above). He contends that revocation of the order would result in his personal information being revealed and his privacy compromised.
The applicant submits that the agency bears the onus of establishing that the non-publication order was not correctly made and that this requires it to identify the reasons why the order was made and to show that these reasons were deficient in some way. He contends that the agency has failed to do so. In these respects he is critical of the agency for failing to request the Tribunal to provide written reasons for the non-publication order and for failing to pursue an appeal against that order if it was disputed.
The applicant contends that he bears no onus of establishing the grounds on which the non-publication order was made or in justifying its continuance. In this respect he submits that the agency “cannot rely on an absence of evidence from the applicant” to support its revocation application. However, he does appear to say that the order was made in response to his expression to the Tribunal at the time of “legitimate concerns about his privacy” and that this was a sufficient reason for the order to be made then, and for it to be continued now.
The applicant contends that the agency’s application is motivated by some malignant “ulterior purpose” which it has not disclosed to the Tribunal which is related to disseminating information about his involvement in the proceedings. In this connection, the applicant appears to accept that personal information concerning his address has already been publicly revealed in the course of, and as a result of, the Federal Circuit Court proceedings in which the parties are involved, but submits that this is not the only personal information that may be disclosed in the course of this proceeding. He submits that the agency “may seek to elicit other personal information … during cross-examination … or that [he] may need to explain his evidence by disclosing additional personal information.”
The applicant submits that if the Tribunal does determine to revoke the non-publication order it ought to suspend the operation of its revocation order by 28 days to enable him to consider his position.
Agency in reply
In reply, the agency rejects the applicant’s contention that its revocation application is an abuse of process. It submits that its application is properly made pursuant to s 64(3) of the NCAT Act based on a challenge to the desirability of the non-publication order continuing, and that such an application can be made at any time in the proceeding. It submits that it is not prevented from making such an application because it did not lodge an appeal against the non-publication order, or because it did not request written reasons for that order. It submits that orders 7 and 4 of the Appeal do no more than continue the order made at first instance on 30 June 2020, and that that first instance order remains amenable to a revocation application. The agency rejects the applicant’s contentions that it bears any onus of establishing why the non-publication order was made, or that any adverse inference can be drawn from it not doing so.
The agency submits that the only onus it bears in relation to the revocation application is to place material before the Tribunal that is capable of persuading it that the non-publication order is no longer desirable. It contends that it has done so by providing references to, and evidence of, the publication and public availability of the applicant’s personal information that is relevant to the issues to be determined in the proceedings. The agency submits that the applicant bears the onus of placing material before the Tribunal that is capable of persuading it that it is desirable for the non-publication order to continue and that a generalised concern about a loss of privacy is insufficient to discharge that onus.
In response to the applicant’s claim that personal information may be adduced in evidence at the final hearing and that this justifies continuation of the non-publication order, the agency submits that the only issue for determination at the final hearing is whether the applicant’s address information was obtained by the agency by unlawful means contrary to s 8(2) of the PPIP Act, which is an issue of narrow ambit. It submits that all of the directly relevant and surrounding circumstances related to that issue have been fully disclosed in the proceedings between the parties in the Federal Courts and by the Daily Telegraph.
Additionally, the agency submits that should other sensitive personal information emerge at the final hearing, the applicant can apply for a non-publication order in relation to that specific information, or in the alternative, the Tribunal can draft its orders and reasons so as not to publicly disclose this information. It submits that the mere theoretical possibility that undisclosed sensitive information could emerge at the final hearing is not sufficient for the Tribunal to conclude that the non-publication order remains desirable.
The agency denies that its revocation application is motivated by any ulterior purpose. It submits that it is bound by the PPIP Act to protect the applicant’s personal information, and that it has clearly set out the basis for the revocation application. It contends that there is no basis upon which the Tribunal could draw an inference that the revocation application is motivated by some improper purpose.
The applicable law
The objects of the NCAT Act relevantly provide:
3 Objects of Act
The objects of this Act are –
…
(c) to ensure that the Tribunal is accessible and responsive to the needs of all its users, 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.
Section 49 of the NCAT Act concerns the manner in which hearings before the Tribunal are to be conducted. It provides:
49. Hearings to be open to public
(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.
(2) 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.
The Tribunal’s power to restrict disclosures concerning proceedings before it is found in section 64 of the NCAT Act, which relevantly 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:
(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.
…
(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.
Subsection 64(3) does not state the circumstances in which the Tribunal may vary or revoke an order made under s 64(1). However, it has been held that the section is to be read in conjunction with s 64(1) such that the Tribunal may do so of its own motion or on the application of one or more parties, and that the s 64(3) considerations are the same as those set out in s 64(1); that is, the order may be varied or revoked if it is no longer desirable having regard to whether there is any evidence or other matter of a confidential nature in the proceedings or any other reason justifying its continuance: EJK v Council of the Law Society of New South Wales [2020] NSWCATOD 109 at [60].
In DHL 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 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 summarises the relevant principles to be applied:
6. 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 bread 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.
7. 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.
8. 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.
…
10. … 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.
11. 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.
Consideration
The Tribunal’s s 64(3) discretion to revoke a non-publication order is engaged if the Tribunal is ‘satisfied’ that such an order is no longer ‘desirable’. A state of satisfaction is one of persuasion attained on a rational basis. To express the test in the negative, the Tribunal must be content as to the non-existence or insufficient existence of confidential evidence or any other matter or reason that would justify the continuation of the non-publication order, such that it is no longer needed.
The temporal focus for the revocation application is the date of its determination, but this also involves consideration of the conduct of the proceeding to date and its likely future trajectory. That is; in determining the application the Tribunal must consider if any confidential evidence or other matter or reason exists in the proceedings as they have been conducted up to that point, and if there is a reasonable likelihood that this would crystalize over the future course of the proceeding.
Determination of an application under s 64(3) is not by way of an appeal from the original decision making the order. It is not concerned with the correctness or otherwise of the original decision. It is a fresh consideration of the desirability of the non-publication order as the proceedings stand on the date the revocation application is determined. Any reasons why the original non-publication order was made would certainly be relevant considerations, but the Tribunal is not bound by those previous reasons. It follows from this that the Tribunal is not inhibited from reconsidering the desirability of the non-publication order by the absence of any reasons or any uncertainty as to why the original non-publication order was made.
Nor is the Tribunal prevented in any way by orders 7 and 4 of the Appeal Panel from considering the revocation application. As the agency submits, those orders merely continued in force the first instance non-publication order made on 30 June 2020. The Appeal decisions did not consider the merits of the non-publication order. It was not the subject of the Appeal. The non-publication order thus remains amenable to the agency’s revocation application.
The applicant and agency have approached the matter on the basis that it is the other that bears the onus of proof of establishing that continuation of the non-publication order remains desirable, or that it is no longer desirable, respectively. Although the application is made under the NCAT Act, these are administrative review proceedings where neither party bears a strict onus of proof. I think the better view is that there must be a sufficient basis to be found in the course of the proceedings and in the evidence and submissions filed by both parties for the Tribunal to be satisfied that a non-publication continues or does not continue to be desirable. That position is consistent with the Tribunal’s power to make, vary or revoke a non-publication order of its own motion, absent any application by a party.
Nevertheless, where the applicant, as the beneficiary of the non-publication order, contends for its continuation over the opposition of the agency, he must establish good grounds for its continuation (Dezfouli at [81]) in all of the circumstances and on the material before the Tribunal. In other words, there is a practical onus that the applicant must discharge in this case.
The applicant contends, in effect, that the disclosure of his name (which is the subject of the non-publication order) in connection with the subject matter of these proceedings (which are not in any other way subject to non-publication orders) would compromise his privacy. The subject matter of the proceedings is the agency’s conduct in relation to how it obtained the applicant’s address information and whether this was in contravention of s 8(2) of the PPIP Act.
A person’s name is potentially ‘personal information’ within the meaning of s 4 of the PPIP Act because it is information from which their identity is apparent, but it is not, per se, sensitive or confidential information. However, its connection with sensitive subject matter may make it so, even if the subject matter itself is not confidential: DLH v Nationwide News at [30]. The applicant’s name will not be personal information for the purposes of the PPIP Act if it is information about him that is contained in a publicly available publication: s 4(3)(b) of the PPIP Act.
In this case the address information on which the proceedings turn has already been disclosed in connection with the applicant’s name in the orders made by the Federal Circuit Court on 4 December 2019. Those orders remain publicly available on the Commonwealth Law Portal. The applicant’s name in connection with the address information therefore cannot be considered personal information. It is already available in a published order of the Federal Circuit Court.
The address information is connected to the agency’s service of the Creditor’s Petition on the applicant. All of those surrounding circumstances are reported in the various published decisions of the Federal Courts in relation to the Creditors Petition, and they have also been reported in considerable detail in the Daily Telegraph on 22 September 2020. The applicant’s name in connection with these surrounding circumstances therefore cannot be considered personal information or confidential information in relation to the Creditor’s Petition and its surrounding circumstances. It has been subject to extensive publication in relation to those circumstances.
In case number 2020/000141477, the applicant has been afforded the opportunity on 4 occasions to file evidence concerning the means by which the agency obtained his address information. He has not done so. There is nothing in evidence and submissions before the Tribunal in relation to the manner in which the address information was collected that discloses any confidential matter in relation to the applicant. By the directions made in case number 2020/000141477 in relation to the conduct of the substantive application to hearing, and by the directions made for the filing of evidence and submissions in relation to both revocation applications specifically, the applicant has had the opportunity to discharge his practical onus of establishing that the non-publication order remains desirable. He has not done so.
There is no basis upon which it is open to the Tribunal to draw an inference that the agency’s revocation application is motivated by some form of malignant collateral purpose, nor is there any basis in the proceedings as they have been conducted to date that would permit the Tribunal to infer that the agency intends to engage in some form of attack on the applicant’s privacy at the final hearing. This is baseless speculation by the applicant. It does not provide a basis for the Tribunal to conclude that the non-publication order remains desirable.
It follows from these reasons that I cannot be satisfied that the non-publication order remains desirable because of the confidential nature of any evidence or matter that is before the Tribunal in these proceedings. Nothing of a confidential nature is to be found in the subject matter of the proceedings in connection with the applicant’s name.
That leaves for consideration whether there is any other reason why the non-publication order remains desirable. There is one matter which requires some attention. The applicant has made a number of applications to the Tribunal in which the agency has been the respondent over several years. It appears that in each case that he has done so the Tribunal has made a non-publication order by virtue of which he has been assigned the same pseudonym. There are published decisions of the Tribunal in relation to those matters which use this pseudonym. As a consequence, if the non-publication order is revoked in this matter, thus potentially revealing the applicant’s actual name in connection with the pseudonym he has been assigned, it would potentially frustrate the non-publication orders that have been made in each other proceeding.
As I have noted above, the agency has made a revocation application in 2020/000141477 which I have determined in conjunction with the present application. I concluded in relation to that application that the non-publication order ought to be revoked for reasons I have published separately. The subject matter of those proceedings therefore does not have any implication for the revocation on the non-publication order made in this proceeding. However, there appear to be a number of other concluded matters in which a non-publication order remains in force using the same pseudonym the applicant has been assigned in these proceedings.
I therefore conclude that the multiple use of the pseudonym including in matters where non-publication orders remain in force is potentially an ‘other reason’ within the meaning of s 64(1) why it may remain desirable for a non-disclosure order to remain in force in this application. The second stage of the analysis described by Hennessy LCM in DHL at [11] is therefore reached. The Tribunal must determine if the non-publication order remains desirable for this reason having regard to other relevant considerations, in particular the principle of open justice.
In its submissions, the agency has referred to the use of the same pseudonym for the applicant in other matters. It argues that this cannot justify the continuation of the non-publication order in this case. The applicant has not made any submission on this point.
It must be accepted for the reasons given by the Appeal Panel in Dezfouli at [61] that there is a strong presumption in favour of open justice even in proceedings brought in this Tribunal which by operation of s 64 of the NCAT is empowered to take a more flexible, less stringent approach to the issue to ensure that it is accessible and responsive to the needs of all its users (Object 3(c) of the NCAT Act. These are proceedings brought under the PPIP Act. As a matter of general principle, a strict application of the principle of open justice in such proceedings has the potential to be self-defeating – it may result in the revelation of the personal information the proceedings have been instituted to protect. For this reason, this is the type of proceeding where it will often be desirable for a non-publication order to be made. However, as s 6 of the PPIP Act makes clear, that Act does not affect the manner in which the Tribunal must exercise its judicial functions, including with respect to the principle of open justice.
Consequently, the general character of the proceeding is not a sufficient reason, without more, to justify a non-publication order. There must good grounds for such an order apparent in the particular case. The only potentially good ground I have found is the prospect of the applicant’s identity being disclosed in other proceedings in which the parties have been involved. However, the applicant, who bears the practical onus of establishing good grounds for the continuation of the non-publication order, has not argued this as an issue in response to the revocation application. He has not identified any confidential information or matter in the record of other proceedings that would be revealed if his pseudonym were to be revoked in this case.
In legal proceedings parties always face a risk of embarrassment and reputation damage. That is an unfortunate but necessary incident of open justice for the reasons explained in DHL at [7]. There is nothing in any of the materials and submissions before me that would suggest that revelation of the applicant’s name in these or any other proceedings in which he has been involved in this Tribunal has the potential to cause him any additional embarrassment or reputation damage to that which may have resulted from the proceedings between the parties in the Federal Courts, and as a result of the Daily Telegraph article concerning them. Even if I were to be wrong in that conclusion any further embarrassment or reputation damage that may be visited upon the applicant by the revocation of the non-publication order in this case would not be a sufficient reason to continue the order in all of the circumstances of this case.
Should the revocation order be suspended?
The applicant submits that if the Tribunal determines to revoke the non-publication order it ought to suspend operation of the revocation order by 28 days to enable him to consider his position, presumably with respect to whether he might appeal the decision.
It must be accepted that if the applicant’s pseudonym is revoked it will immediately reveal his name which may not be undone by any successful appeal from the decision. This circumstance weighs heavily in favour of suspension of the order to enable the applicant a reasonable period within which to institute an appeal if he determines to take that course. A 14-day period from the date of these orders is sufficient time for him to do so. Any further period of suspension on the operation of the order can be considered in the context of any appeal that is filed.
Order
For the foregoing reasons:
(1)This application is heard and determined together with the agency’s revocation application in application no. 2020/00141477.
(2)The non-publication order made in this proceeding (2020/00178009) on 30 June 2020 is revoked.
(3)The operation of order 1 is suspended until 28 March 2022.
(4)Publication of this judgment, other than to the parties, is prohibited before 28 March 2022.
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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
Amendments
23 August 2022 - Case details relating to other decisions redacted
- AGLC
- Ritson v Commissioner of Police (No. 2) [2022] NSWCATAD 89
- Case
- [2022] NSWCATAD 89
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the Commissioner was legally obligated to furnish the applicant with a statement of reasons, and if so, whether the non-publication order that was in place should be revoked. The applicant argued that the statutory provisions required the Commissioner to provide reasons, and that the non-publication order hindered his ability to effectively pursue his rights. The Commissioner contended that the statutory provisions did not mandate the provision of reasons and that the non-publication order was appropriate to protect the interests of the parties involved.
The court found that the statutory provisions did indeed require the Commissioner to provide a statement of reasons. However, it also acknowledged the importance of the non-publication order in maintaining the privacy and protection of the parties. To balance these considerations, the court decided to revoke the non-publication order but suspended its operation until a later date to allow the applicant to consider his position and potentially seek further legal remedies. The court also prohibited the publication of this judgment, other than to the parties, until the suspension period ended.
In conclusion, the court ordered the revocation of the non-publication order but suspended its operation until 28 March 2022. Additionally, the court prohibited the publication of this judgment to all but the parties involved until the same date. This decision aimed to balance the applicant's right to a statement of reasons with the need to protect the privacy and interests of the parties involved.
Orders
Orders of the court
(1) This application is heard and determined together with the agency’s revocation application in application no. 2020/00141477.
(2) The non-publication order made in this proceeding (2020/00178009) on 30 June 2020 is revoked.
(3) The operation of order 2 is suspended until 28 March 2022.
(4) Publication of this judgment, other than to the parties, is prohibited before 28 March 2022.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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