Birtles v Sdrolias

NCAT Consumer and Commercial|2022-11-03

Notation

These reasons were originally published to the parties on the Tribunal's case management system on 3 November 2022. Subsequently, the Head of Division considered that it was appropriate that the reasons be published on NSW Caselaw.
In the course of preparing the reasons for publication on Caselaw, minor typographical and grammatical corrections have been made to the original text pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Background

This is a miscellaneous application made by the respondents in matter RT 22/16143.
In matter RT 22/16143, the applicant sought orders against the respondents. Those orders were an order for possession where a tenancy agreement had been terminated and the occupants had not vacated the premises; an order for the payment of unpaid rent and an order for compensation. All these orders were sought pursuant to the provisions of the Residential Tenancies Act 2010 (NSW).
After a directions hearing on 10 May 2022, the matter was heard at a final hearing on 6 July 2022. In summary, the Tribunal dismissed the application, finding it had no jurisdiction to make the orders sought. In short, the Tribunal was not satisfied that there was any agreement for the payment of rent. A three-page written decision was published that day (Decision).

Request for Sound Recording

On 22 July 2022, Mr Sdrolias requested a copy of the sound recordings of the hearings on 10 May and 6 July 2022.
It appears that the respondents were provided with a copy of the sound recordings, as on 3 August 2022 the respondents filed an "Application for Miscellaneous Matters" seeking an order to distribute and use the sound recordings "where necessary to plead our case in light of procedural fairness".
The ground stated for that application were: "The need to distribute in order to find appropriate resolution to how the conduct of hearing was commenced and finalised in its entirety with all evidence produced accordingly".
Following the filing of that application, the Head of Division Deputy President Harrowell issued the following orders on 10 August 2022: "Orders: 1. [Mr and Mrs Sdrolias] are to file and serve a copy of their application for miscellaneous matters on [Mr Birtles] by 15 August 2022. 2. On or before 22 August 2022 [Mr and Mrs Sdrolias] are to file and serve any evidence and submissions in support of their application under the Court Security Act 2005 (NSW) to distribute a sound recording of proceedings before the Tribunal. 3. Submissions are to include whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 4. On or before 5 September 2022 [Mr and Mrs Sdrolias are] to file and serve any submissions in reply. Reasons: The respondents have applied for permission to distribute and use a sound recording of proceedings before the Tribunal. An Application for miscellaneous matters dated 3 August 2022 has been filed. Under the Court Security Act 2005 (NSW), a party to proceedings may not transmit or distribute a sound recording of proceedings before the Tribunal. However, the Tribunal may grant permission to do so. These directions are to facilitate a determination of the application. In this regard the parties' attention is drawn to decision of the Tribunal in Kenny v Trip A Deal Pty Ltd [2021] NSWCATCD 60".
Subsequent to those orders, on 22 August 2022 the respondents filed a bundle of documents consisting of submissions; a copy of a transcript of an interview between the respondents, Deannah Birtles and a Constable Maxwell dated 7 July 2022; a COPS report dated 9 August 2022 relating to an occurrence on the property the subject of proceedings RT 22/16143 on 7 July 2022; a copy of the reasons for decision in proceedings RT 22/16143 of 6 July 2022 and a copy of the directions made on 10 May 2022 and a notice of contested hearing by telephone dated 11 May 2022.
No submissions were provided by the applicant, although the Tribunal notes that he made his own application for a sound recording on 1 September 2022.

Summary of the Submissions of the Respondents

The submissions cover a wide area of topics which include the following: 1. the Member's conduct of the hearing on 7 July 2022; 2. "unauthorised" persons attending the hearing; 3. there being "a breach of distribution to a third party in relation to this recording by someone's own recording"; 4. the COPS report "points to Orders the NSW Police Force actioned without appropriate written Orders as outlined within their summary. It would seem as though the Police actioned a residential lock out on the say so of a private citizen, without appropriate documentation". The submissions go on to state that other aspects of the COPS Report are inaccurate; 5. "the audio, legal technology will satisfy our needs and expectations and be used for legal education. It will give us the opportunity to listen to it with a lawyer for greater clarity regarding questions of fact or law. I believe this audio and permission to copy will be an example of improvement of justice and this will assist us because we believe our situation has been unjust".
In addition to those matters, as noted above the respondents stated in their application that they wished to distribute the sound recordings: 1 "where necessary to plead our case in light of procedural fairness". 2 "to find appropriate resolution to how the conduct of hearing was commenced and finalised in its entirety with all evidence produced accordingly".
To make sense of the respondents' narrative, it is necessary to refer briefly to the contents of the transcript and COPS report.
The transcript records a conversation between Constable Maxwell, the respondents and Ms Deannah Birtles, who is the sister of the applicant. It is tolerably clear that the respondents were inside the property, and Constable Maxwell and Ms Deannah Birtles, on the outside. The Constable indicates that he was holding a copy of the Decision, noting that it provided that the respondents had no agreement to live in the property. Mr Sdrolias claimed he was entitled to live in the property as long as he liked. The constable explained that the respondents were trespassing and gave them 10 minutes to pack up their belongings.
The COPS Report continues: "The occupants became heated with police with verbal arguments. A short time later this was settled quickly with verbal communications with officers. Occupants had removed as much property as they could for the time being and organised a time and date to civilly remove the rest of their property from the dwelling to suit the current property owner. Event is created for the record as the occupants were removed and told not to return. If sighted on the property or inside the dwelling, police will be notified and will take legal action for trespass".

Preliminary Matter for Consideration

There is one preliminary matter. Order (3) of the orders of 10 August 2022 was that submissions were to include whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
No party opposed the matter being determined "on the papers" and without a hearing. As I am satisfied that the application can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal, I will make an order dispensing with a hearing.
I turn now to the substantive application. Before I do, as noted, order (2) of 1 August 2022 directed the respondents' attention to the Court Security Act 2005 (NSW). For convenience I will refer to this Act as the CS Act. Also relevant is the NCAT Act.
It is appropriate to summarise the principal relevant provisions of the NCAT Act, the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) and the CS Act.

NCAT Act

Division 6 (Information Disclosure) of Pt 4 (Practice and Procedure) of the NCAT Act deals with the order making powers of the Tribunal in respect to disclosure of information provided in the course of proceedings.
Section 64 permits the Tribunal, including the Consumer and Commercial Division, to make orders restricting the disclosure, publication or broadcasting of various information relating to proceedings.
Section 67 protects privileged documents.

NCAT Rules

Otherwise, in relation to documents filed in proceedings, r 42 of the NCAT Rules provides for parties to inspect documents on the Tribunal's file and permits a Registrar to grant access to non-parties of certain documents.

CS Act

The CS Act regulates the recording and publication of proceedings before the Tribunal. Sections 9, 9A and 9B are set out in full at the conclusion of these reasons in Attachment A. I note that s 9B(1) of the CS Act (1) provides that a person must not transmit or distribute a recording of sounds or images (or both) of court proceedings, including part of a recording, by any means. The maximum penalty for doing so is 200 penalty units or imprisonment for 12 months, or both.

Consideration of Request to Distribute Sound Recordings

As specified in ss 9, 9A and 9B of the CS Act, a person may not record, transmit or distribute a recording of sounds or images (or both) of Tribunal proceedings.
These restrictions do not apply where the recording, transmission or distribution has been expressly approved or permitted by a judicial officer: ss 9(2)(a), 9A(2)(b) and 9B(2)(a) of the CS Act. A judicial officer includes a Member of the Tribunal: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [65].
This issue was considered by the Tribunal in Kenny v Trip A Deal Pty Ltd [2021] NSWCATCD 60, which authority the Tribunal drew the parties' attention to in the orders of 10 August 2021.
In Kenny, the Tribunal noted that "the starting point is that there is a statutory prohibition on recording, transmitting or distributing the sound recording proceedings, and that objects of the CS Act include "to provide for the secure and orderly operation of courts": s 3(a) of the CS Act. The Tribunal then noted there were a number of considerations to take into account when considering an application to publish or distribute a sound recording. These were: 1. the principle of open justice, being a principle recognised in s 3 of the NCAT Act and operating in respect of such proceedings in the Tribunal. Guidance as to the approach to be taken and how the principle of open justice might apply in determining a request for permission under the CS Act is found in the decision of the Court of Appeal in John Fairfax Publications Pty Ltd v Ryde Local Council [2005] NSWCA 101; (2005) 62 NSWLR 512. The principle of open justice is to allow the scrutiny of the decision-making process and the court or tribunal entrusted to perform that role. It is not a principle to be deployed so as to permit an aggrieved party to make use of evidence given in proceedings in a collateral attack on a party outside the hearing; 2. the second consideration relates to reporting of proceedings. In John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 Toohey J said (citations omitted), quoting with approval McHugh JA in the Police Tribunal Case: 12. ... The right to publish a report of court proceedings is an important common law right that is "vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice". 1. a third consideration is that once permission is given, the information is no longer subject to restriction or control by the court or tribunal under the CS Act. In this regard, there is no general or implied power to make orders that apply to all members of the public outside the confines of the proceedings: Attorney General v Leveller Magazine Ltd and Ors [1979] ACT 440 per Viscount Dilhorne at 456. Further, any condition that might be imposed under s 58 of the NCAT Act to control use once permission is given could not bind the public at large; 2. a fourth consideration is the purpose or purposes for which permission is sought, the possibility for misuse of information by the person who might be granted permission or others to who the information might be transmitted or published; and whether the harm or possible detriment to the person whose information might be recorded, transmitted or published.
Finally, in Kenny the Tribunal observed that because ss 9, 9A and 9B impose a general prohibition, the burden to establish such a grant is appropriate is on the applicant seeking permission to record, transmit or distribute a sound recording of proceedings in the Tribunal.

Consideration

The various reasons for the application are set out above. I will consider each reason in turn.

The Member's conduct of the hearing on 7 July 2022

If the respondents wish to challenge the conduct of the hearing, this would ordinarily be done by way of an internal appeal to the Appeal Panel of the Tribunal. A sound recording and a transcript of the sound recording is ordinarily directed to be filed in support of an appeal, and I have never understood there to be a need for an application under the CS Act. However, that may be because the direction of the Appeal Panel to file the recording and the transcript constitutes an approval to transmit or distribute a recording for the purposes of s 9B(2)(a) and/or (b) of the CA Act.

"unauthorised persons" attending the hearing

Again, this is a challenge to the conduct of the hearing, which challenge would ordinarily be made by way of appeal. I note in passing that, consistent with the principle of open justice, hearings of the Tribunal are open public hearings which generally any person may attend. In any event, this factor does not warrant an order under the CS Act.

Distribution to a third party

The third reason advanced by the respondents is there being "a breach of distribution to a third party in relation to this recording by someone's own recording". As the Tribunal noted in Kenny, it would not be permissible to use a sound recording for some collateral purpose. This factor does not warrant an order under the CS Act.

Orders the NSW Police Force actioned without appropriate written orders

The fourth reason advanced is that the COPS report "points to Orders the NSW Police Force actioned without appropriate written Orders as outlined within their summary. It would seem as though the Police actioned a residential lock out on the say so of a private citizen, without appropriate documentation". The submissions go on to state that other aspects of the COPS Report are inaccurate. I repeat my observations immediately above. It is not clear how the sound recording could be used by the respondents. On the basis of this submission, this does not appear to be an appropriate reason to allow a distribution or transmission of the sound recording.

Legal education

The fifth reason advanced is that: "the audio, legal technology will satisfy our needs and expectations and be used for legal education. It will give us the opportunity to listen to it with a lawyer for greater clarity regarding questions of fact or law. I believe this audio and permission to copy will be an example of improvement of justice and this will assist us because we believe our situation has been unjust".
It is not clear whether the respondents are referring to their own education or that of the wider public. I have observed above the leave under the CS Act is not required to rely on a sound recording or a transcript of that recording in an appeal (although I observed that may be because of operation and effect of the Appeal Panel directions ordering the sound recording and transcript to be filed).
However, in my view that principle would extend to receiving legal advice from a legal practitioner about the content of a sound recording.

Where necessary to plead our case in light of procedural fairness

Again, I see no barrier to the respondents obtaining legal advice about the contents of the sound recording from a legal representative for the purposes of commencing an appeal or other legal proceedings.

To find appropriate resolution to how the conduct of hearing was commenced and finalised in its entirety with all evidence produced accordingly".

It is not entirely clear, what the respondents mean by an "appropriate resolution". If they mean to appeal, I repeat my remarks above.

Summary

The normal meaning of "distribute" is to "to divide something among several or many people": Cambridge Online Dictionary.
The normal meaning of transmit is "to broadcast something, or to send out or carry signals or messages using radio, television, etc.
The respondents must not distribute or transmit the sound recordings, and I do not give them permission to do so. I see no substance in any of the reasons advanced individually, or even if taken cumulatively, to warrant an order under the CS Act to allow the respondents to transmit or distribute the sound recordings.
However, I would not have thought that the CS Act would operate to prevent them from obtaining legal advice on the contents of the sound recording from a qualified legal practitioner. The listening to the sound recording by a lawyer for the purposes of obtaining legal advice would not appear to be an act of distribution or transmission.
That said, that is a matter on which they may consider obtaining legal advice before the recording in question is shared with a legal practitioner.

Orders

The following orders are made: 1. A hearing is dispensed with. 2. The application for miscellaneous relief is dismissed.

Sections 9, 9A and 9B of the Court Security Act 2005 (NSW) 9 Use of recording devices in court premises (1) A person must not use a recording device to record sound or images (or both) in court premises. Maximum penalty - 200 penalty units or imprisonment for 12 months (or both). Note - This subsection only prohibits the use of a recording device to record sound or images (or both) and not any other use of the device. For example, this subsection would not prohibit a person from using a mobile phone with recording capabilities to make a telephone call, but would prohibit the use of the phone to record court proceedings. (2) Subsection (1) does not apply with respect to any of the following - (a) the use of a recording device that has been expressly permitted by a judicial officer, (b) the use by a lawyer of a recording device to record the lawyer's own voice in a part of court premises other than a room where a court is sitting, (c) the use of a recording device by a person for the purpose of transcribing court proceedings for the court, (d) the use of a recording device by a journalist while exercising a right referred to in section 6 (2), (e) the use of such recording devices in such other kinds of circumstances as may be prescribed by the regulations. 9A Prohibition on unauthorised transmission of court proceedings from courtroom (1) A person must not use any device to transmit sounds or images (or both) from a room or other place where a court is sitting, or to transmit information that forms part of the proceedings of a court from a room or other place where that court is sitting, in any of the following ways - (a) by transmitting the sounds, images or information to any person or place outside that room or other place, (b) by posting entries containing the sounds, images or information on social media sites or any other website, (c) by otherwise broadcasting or publishing the sounds, images or information by means of the Internet, (d) by otherwise making the sounds, images or information accessible to any person outside that room or other place, whether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both). Maximum penalty - 200 penalty units or imprisonment for 12 months (or both). (2) Subsection (1) does not apply to any of the following - (a) a device being used for a purpose other than a purpose referred to in subsection (1), (b) the transmission of sounds, images or information by an audio link, audio visual link, closed-circuit link or other technology that enables communication between the room or other place where the court is sitting and another place and that has been expressly permitted by a judicial officer, (c) any other transmission of sounds, images or information that has been expressly approved by a judicial officer, (d) the transmission of sounds, images or information for the purpose of transcribing court proceedings for the court at a place outside the room or other place where the court is sitting, (e) the use by a prosecutor of a tablet computer or other similar device to transmit sounds, images or information only to another prosecutor who either is not a witness in the relevant court proceedings or, if he or she is such a witness, who has already given evidence in those proceedings, (f) the transmission of sounds, images or information in any circumstances that may be prescribed by the regulations. 9B Prohibition on unauthorised distribution of court recording (1) A person must not transmit or distribute a recording of sounds or images (or both) of court proceedings, including part of a recording, by any means. Maximum penalty - 200 penalty units or imprisonment for 12 months, or both. (2) Subsection (1) does not apply unless the person knows or suspects, or ought reasonably to know or suspect, that none of the following apply - (a) the transmission or distribution of the recording has been expressly approved by a judicial officer, (b) the transmission or distribution of the recording is for the purpose of transcribing court proceedings for the court, (c) the transmission or distribution of the recording occurred in any other circumstances prescribed by the regulations. 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 28 November 2022 - * section 63 amended to paragraph 44 29 September 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2023

Under the Court Security Act 2005(NSW)

NCAT Act, the Civil and Administrative Tribunal Rules 2014(NSW)

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Judgment (21 paragraphs)

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