SYRL and Australian Securities & Investments Commission
[2024] AATA 2636
•23 July 2024
SYRL and Australian Securities & Investments Commission [2024] AATA 2636 (23 July 2024)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s):2024/3220
Re:SYRL
APPLICANT
AndAustralian Securities & Investments Commission
RESPONDENT
DECISION
Tribunal:Senior Member D Benk
Date:23 July 2024
Place:Sydney
The application for a confidentiality order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
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Senior Member D Benk
Catchwords
CONFIDENTIALITY ORDER – application for confidentiality order –– section 35 Administrative Appeals Tribunal Act 1975 – consideration given to openness, open justice, maintaining public confidence – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 35, 41
Cases
Daly and Australian Securities and Investments Commission [2020] AATA 1516
Australian Securities and Investments Commission v Administrative Appeal Tribunal
(2009) 181 FCR 130
Devasahayam and Comcare [2010] AATA 784
Flood & Secretary, Department of Social Security (1994) 33 ALD 182
Re Lawrance and CRS Australia (2004) 85 ALD 238
Modini and Tax Agents’ Board of Queensland [2005] AATA 1200
Modini v Tax Agents Board of Queensland [2005] FCA 570
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
REASONS FOR DECISION
Senior Member D Benk
23 July 2024
INTRODUCTION
The matter has history before the Tribunal. On 3 June 2024, the Tribunal made interim conditional stay orders pertaining to a decision made by the Respondent which sought to disqualify the Applicant from managing corporations for a period of 18 months. Reasons were published under a pseudonym.[1]
[1] SYRL and ASIC [2024] AATA 1370
The matter was again listed on 19 June 2024 to determine the issue of stay and confidentiality orders. In the interim, the respondent refrained from issuing its standard media release and agreed not to do so until the Tribunal determined the application for confidentiality orders sought by the Applicant.
On 19 June 2024, the parties came to an agreement with regards to the continuance of the Stay subject to conditions pursuant to s 41 of the Administrative Appeals Tribunal Act (the Act). Orders in accordance with that agreement have been made separately. Despite being by consent, the terms are in my view appropriate given the history of this matter, which has been previously recorded and which in the interests of brevity will not be repeated here.
Both parties made further submissions with regards to the issue of confidentiality, the last being received on 10 July 2024.
The only issue that I am required to determine is whether it is appropriate to grant confidentiality orders with reference to s 35 of the Administrative Appeals Tribunal Act 1975. The orders sought are opposed by the respondent. Multiple affidavits are amongst the exhibits and were considered along with the oral submissions.
RELIEF SOUGHT
Relief sought includes:
(a)That the applicant be described by a pseudonym ”for the purposes of protecting her identity”;
(b)That the hearing take place in private (a closed hearing);
(c)That the publication or disclosure of evidence or other documents before the Tribunal be “restricted to the parties and their representatives and witnesses, the Tribunal and staff, and Auscript staff”;
(d)That pursuant to s35(4) of the Act, the Affidavit of Jim Lyons sworn on 22 April 2024 be kept confidential and access be permitted to it only by Tribunal order.
APPLICANT’S CONTENTIONS
The applicant maintains confidentiality orders are necessary to curtail the conduct of a Mr Christopher Baker who for several years now has engaged in behaviour best labelled as harassment and intimidation directed at her and her representatives including a campaign of harassment via channels such as Facebook with a view to encouraging the general public to lodge complaints against her and her various companies. The applicant is concerned if the relief sought is refused, she and her legal representatives will again be the subject of harassment and intimidation with excerpts from any transcripts from any review hearing being published online as they have in other proceedings. In support of the claim, a number of screen shots of communications between Mr Baker and Mr Lyons were tendered.
The applicant maintains the interference and intimidation by Mr Baker when he becomes aware of legal proceedings, curtails the ability of her legal representatives to fulfill their duty without fear, thereby possibly impacting on the administration of justice stating that legal representatives should not be subject to harassment and intimidation when performing their professional roles.
Further, the applicant submits unless there is an order preventing the respondent from doing so, it will issue a media release notifying the public of its decision which is likely to be picked up by journalists and be harmful to her reputation, resulting in a high probability she will lose her “current role as a property coach” and be unable to work or earn an income.
RESPONDENT’S CONTENTIONS
The Affidavits of Mr Lyons relate to abusive and threatening emails allegedly authored by Christopher David Baker who according to the evidence before the Tribunal has for many years (even prior to these proceedings) engaged in behaviour that has been threatening and intimidating to both the applicant and her legal advisors. Whilst this behaviour is unsettling, the respondent submits it is not a cogent reason to depart from the ordinary requirement of a public hearing and indeed whilst this behaviour was evident in proceedings before NCAT, no such confidentiality orders were made (that is assuming they were sought).
Regarding the request to be described by a pseudonym, the respondent submits that the discretion should not be enlivened. The applicant’s affidavit dated 22 May 2024 contends that the primary grounds for her request for a confidentiality order is because “legal representatives and other [sic] associated with me may be the subject to harassment and vilification and my reputation and my unrelated business will suffer”, which the respondent submits are not cogent grounds for the relief sought.
The respondent submits that supressing the name of counsel or legal representatives is futile particularly as they are already on formal records publicly available arising out of other proceedings some of which are concurrent (both NCAT and the Federal Court of Australia).
The claims about reputation are of no consequence and should not be considered a cogent reason for a confidentiality order as publicity is part and parcel of participation in an occupation that is subject to a regulatory regime. In any event, the application is futile as the applicant’s conduct has already been the subject of media articles and scrutiny.
LEGISLATION
Section 2A of the AAT Act provides as follows:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Section 35 of the AAT Act relevantly provides that:
Public hearing
(1)Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2)The Tribunal may, by order:
(a) direct that a hearing or part of a hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
Orders for non-publication or non-disclosure
(3)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i)a party to or witness in a proceeding before the Tribunal; or
(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a).
(4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i)information that comprises evidence or information about evidence;
(ii)information lodged with or otherwise given to the Tribunal.
(5)In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
CONSIDERATION
As indicated above, subsection 35(3) of the AAT Act gives the Tribunal power to make directions prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party or witness in a proceeding. To this end, the Tribunal may allocate a pseudonym to a party or witness and use this instead of their name.
Further, subsection 35(5) of the AAT Act makes plain that in considering whether to grant a confidentiality order under subsection 35(3) the Tribunal is to take as the basis of its consideration that ‘it is desirable’ that hearings of proceedings before the Tribunal be held in public and that evidence given before the Tribunal and the contents of documents received in evidence should be made available to the public.
It is clear from the terms of section 35 of the AAT Act that the Tribunal must generally conduct a proceeding on the basis of openness, in the interests of maintaining public confidence in the fairness and integrity of that proceeding, and that the Tribunal should only depart from this approach if it is satisfied that there are proper and cogent reasons for doing so. This has been the subject of much authority as outlined below.
In Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33 (Pochi), President Brennan said (at pp. 55-56):
Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal’s powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases – that is to say, where “the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public” cannot be applied.
In Australian Securities and Investments Commission v Administrative Appeal Tribunal (2009) 181 FCR 130 (ASIC v AAT) at [75], the Full Federal Court of Australia, in the joint judgment of Downes and Jagot JJ, said the following with respect to an application under section 35 of the AAT Act:
Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.
When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order. (underlining is emphasis added)
At [54] of ASIC v AAT, Downes and Jagot JJ observed as follows in relation to the issue of openness and transparency:
Moreover, information is the key to effective trading in any market. It takes the place of regulation in ensuring fairness. A market which is not fully informed is not operating properly. Is not an investor who is about to deposit funds with a person providing financial services entitled to know that a banning order has been made against the person? If the order has been stayed on substantial grounds the person is also entitled to know that. The informed investor may continue with the proposal. If the investor does not, then that is just an example of the operation of the market place. The critical matter is that the market is fully informed. If the banning order is not disclosed, but subsequently upheld, is not the investor entitled to complain that all the circumstances should have been made public? (underlining is emphasis added)
The Full Court further held at [79] that the allocation of a pseudonym as a method of identification is not ‘freestanding’ and is an ‘exception to the norm’, established by section 35 of the AAT Act, that the hearing of a proceeding, including the evidence given before the Tribunal and the contents of documents received in evidence, shall be public. The Court further noted that ‘this power also is one to be exercised sparingly’.
In Re Lawrance and CRS Australia (2004) 85 ALD 238, it was held that ‘possible embarrassment’ was not a sufficient reason for the making of an order to suppress the publication of the applicant’s name. The Tribunal also came to the same conclusion in Devasahayam and Comcare [2010] AATA 784, where the applicant applied for a confidentiality order to prevent publication of her name because she was concerned that publication might affect her prospects of finding a new job. The Tribunal found that the applicant’s reasons were more concerned with ‘avoiding possible personal embarrassment’ than with ‘preventing injustice or other serious disadvantage to her’.
In Modini and Tax Agents’ Board of Queensland [2005] AATA 1200 at [87]-[91] (Modini), the Tribunal relevantly stated that:
The applicant argued that publication of the previous decision of the AAT together with reference to her name and the decision in the matter in the loose leaf service marketed by CCH Australia, has been unfair and that she has been disadvantaged and/or her reputation has been harmed. In considering whether the Tribunal should prohibit or restrict publication of this case or whether it should order that publication or disclosure of the evidence in this matter should be prohibited or restricted, the Tribunal must commence with the principle that it is desirable that all such hearings should be held in public. An inevitable consequence of that principle is that it is desirable that the evidence given to the Tribunal and any document lodged should be available, not only to the parties, but also to the public. However, the Tribunal is required to give due regard to the application by Ms Modini to restrict publication of her name or the evidence, and particularly whether publication or disclosure of the evidence should be prohibited. The policy which is relevant to the Tribunal’s consideration in section 35(2) was outlined by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 at 270 as follows:
"...calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it."
His Honour in Re Pochi at 273 further indicated that those powers, while not intended to be "dormant" would be expected to be exercised "sparingly". In that case, His Honour also said in relation to the exercise of the discretion about confidentiality orders:
"There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest..." .
There is therefore a public interest which must be protected and "...the public interest is best served by allowing publication of .... full reasons for decision without deletion" (re Flood & Secretary, Department of Social Security (1994) 33 ALD 182 at 186. In exercising a discretion, this always involves a balancing of interests, that is, the public interest and transparency in decision making on the one hand and the private interests of the applicant. On the other, the discretion will be exercised more commonly where there is an interest in the Tribunal being able to acquire information which a party might not otherwise provide, for example, the provision on criminal intelligence information which might otherwise prejudice ongoing police investigations. That type of situation does not arise in this case. The Tribunal will also give consideration to prohibiting disclosure of an applicant’s name where severe embarrassment or disadvantage is likely to result from such disclosure.
In the present case, it would appear that the applicant is particularly concerned about suffering embarrassment about her name appearing in the public records. While the Tribunal sees no issue of great importance in the suppression of the applicant’s name, the respondent argues that a confidentially order should not be made as her name and the subject matter is already available in the public domain. In that regard, the respondent refers to the decision of Keifel J in the Federal Court of Australia in Modini v Tax Agents Board of Queensland [2005] FCA 570. Also, there is authority that information already publicly available in a decision of the Federal Court does not prejudice the applicant (Dibb and Commissioner of Taxation [2005] AATA 475). It is also the case that the applicant had not sought a private hearing and therefore the Tribunal’s practice of suppressing an applicant’s name as a consequence of a private hearing is not a strong one.
In the circumstances, the applicant’s request for suppression of her name is rejected.
In Daly and Australian Securities and Investments Commission [2020] AATA 1516 at [17], [18] Deputy President McCabe stated that:
The Tribunal will look carefully at requests to suppress news of a reviewable decision even where the Tribunal is otherwise prepared to issue a stay under s 41(2). The reasons for that caution are obvious enough. The Tribunal’s review mechanism is intended to operate in a transparent way. But the Tribunal is also conscious that others who continue to deal with an applicant will be understandably angry if they later discover they were kept in the dark about a reviewable decision that might have influenced their choices as consumers of the applicant’s services.
While the Tribunal will consider the reputational damage and economic loss that an applicant might experience if the reviewable decision is published while the review proceeds, it might not give those concerns much weight. Requests for suppression orders – for that is what they are, in substance – will be scrutinised very carefully where the reviewable decision in question relates to a person’s right to participate in a regulated occupation. Participation in a regulated occupation brings many benefits, including (in many cases) economic advantages that accrue to licence holders. Those economic advantages flow from the establishment of barriers to entry that incidentally reduce competition between the favoured few. The licence necessarily carries with it a requirement that the licensee conform to the rules and participate in regulatory processes according to law. Most of those regulatory regimes – including the one established in Chapter 7 of the Corporations Act 2001 (the Corporations Act) – place a premium on transparency. It follows that a risk of bad publicity accompanying adverse regulatory action will often be regarded as an incident of a licensee’s participation in a regulated occupation.
I will now proceed to assess the application with reference to these authorities and submissions.
I have reviewed the screenshots and without doubt the behaviour of Mr Baker can best be described as confronting and intimidating. I do however note the applicant has defended multiple other proceedings including before NCAT and the Federal Court in which there appears to have been no legal impediment or restriction in Mr Baker attending or accessing information available publicly about either matter and I find there has been no persuasive reason advanced as to why these proceedings should be any different.
Whilst I consider the communications of Mr Baker to be a nuisance and offensive, I could not satisfy myself on the basis of the evidence before me that there was any risk to the safety to the applicant or those associated with the management of her litigation. The Affidavits refer to police assistance being sought sporadically but it is unclear what the outcome was and certainly there is no evidence of a constant petition that would ordinarily arise in circumstances where an individual feared for their safety or those they are connected to. It is the responsibility of our legal system (through restraining orders) and our Police Forces to curtail behaviour that may be seen as intimidatory, harassment or even stalking and to protect the safety of citizens. The applicant suggests that this Tribunal could and should assist with this endeavour, thereby preventing the possibility of renewed contact with Mr Baker, but this argument is not persuasive. Firstly, such protections are not the role/powers of the Tribunal; secondly, the concerns held at this stage are speculative and there is no guarantee that the claimed “concerted campaign against the applicant and her legal advisors which has now extended for more than five and a half years” would abate by virtue of a confidentiality order in these proceedings and finally and perhaps more importantly, it would impede open justice, which is the cornerstone of our legal system promoting transparency, efficiency and scrutiny. In any event, at any final review hearing, should disruption ensue in relation to the presence of Mr Baker, I could consider a further application.
On balance, the Tribunal is not satisfied the relief sought in paragraph 6 above should be granted as I find the submissions and contentions of the applicant do not displace the factors set out in subsection 35(5) of the AAT Act; the Tribunal’s objectives in section 2A of the AAT Act and established authorities discussed above because:
i.Such orders would hinder ‘open justice’ which is the paramount consideration in assessing whether such orders are to be made and which is an indispensable feature of our legal system. The reason for the principle of open justice is that, if the proceedings are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, submissions and reasons for judgment, then public administration of justice will be enhanced and confidence in the integrity and independence of the Tribunal will be maintained. Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable.
ii.Departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Tribunal upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type. In these circumstances, the submissions fall short in establishing the confidentiality orders and relief sought generally would secure the proper administration of justice. I acknowledge the argument that legal representation may be curtailed or impeded by virtue of Mr Baker’s threats, but this can be mitigated through an approach on the police service.
iii.It is a trite statement that one of the consequences of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. There is much authority supporting the proposition that those grounds have rarely if ever been regarded as a reason of itself for the suppression of evidence or the use of a pseudonym. Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle of open justice.
iv.Furthermore, there must be some material before the Tribunal upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type. Whilst there have been submissions made, none were compelling to bypass the foundation of open justice for the reasons discussed above.
v.Finally, it is relevant to mention here that there is nothing inherently confidential about the respondent’s reviewable decision. It is the decision of a public regulator and in the ordinary course of events is published openly. The applicant has not referred to any other reason as to why this should not take place apart from those above which I have already determined to be not persuasive nor proper grounds to grant the relief sought.
DECISION
The application for a confidentiality order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Benk
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Associate
Dated: 23 July 2024
Date(s) of hearing: 19 June 2024 Date final submissions received: 10 July 2024 Counsel for the Applicant: B May Counsel for the Respondent: R Graycar Solicitors for the Respondent: Australian Securities and Investments Commission
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