Kenny v Trip A Deal Pty Ltd

Relevant law and applicable principles

1. It is convenient to set out the statutory provisions applicable to the Tribunal concerning the release and/or publication of material the subject of the documentary request and the sound recording request and the relevant principles applicable to determining such applications.

Legislation

1. Division 6 Information disclosure of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) deals with the order making powers of the Tribunal in respect to disclosure of information provided in the course of proceedings.
2. 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 64(1) provides: If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
3. Section 67 protects privileged documents. This section provides: 67 Privileged documents (1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995 - (a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence, (b) section 10 (Parliamentary privilege preserved), (c) Part 3.10 (Privileges) of Chapter 3. (2) In this section - disclosure of a document includes the following - (a) the provision of copies of the document, (b) the granting of access to the document, (c) the disclosure of the contents of the document. document includes a part of a document. NSW court has the same meaning as in the Evidence Act 1995.
4. Otherwise, in relation to documents filed in proceedings, r 42 of the Civil and Administrative Tribunal Rules 2014 (NSW) (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.
5. The Court Security Act 2005 (NSW) (CS Act) regulates the recording and publication of proceedings before the Tribunal. Sections 9, 9A and 9B provide: 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.
6. Under the CS Act court includes the Tribunal: s 4 definition of "court".

Documentary request

1. In relation to the documentary request, this appears to be an application for permission to publish documents lodged with the Tribunal, not a request to access documents filed with the Tribunal in the proceedings.
2. In regard to inspecting documents filed with the Tribunal, a party does not need leave to inspect documents in the Registry relating to the proceedings, save for those about which the Tribunal has made non-disclosure orders under s 64 of the NCAT Act or which are otherwise confidential to the party providing them (for example where a document is privileged). Subject to payment of any applicable fee, the Registrar may permit a party to inspect the Tribunal file: r 42(1) Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
3. A person who is not a party may inspect "public access documents" upon application to the Registrar where proceedings are finally determined and any relevant fee is paid: r 42(2) of the Rules.
4. Rule 42(8) states: public access document means any of the following - (a) an originating document or reply, (b) a statement, affidavit or document admitted into evidence in proceedings held in public, (c) a transcript (if available) of proceedings held in public, (d) a record (other than a sound recording) of any order made or other decision given in proceedings, (e) a record of the reasons given for a decision made in proceedings.
5. The rights granted to a party to access a document filed in proceedings do not include a statutory right permitting that party to broadcast or republish documents received from the other party. On the other hand, absent an order for non-disclosure or non-publication or broadcast, the NCAT Act does not expressly prohibit such disclosure or broadcasting of documents received by one party during the course of proceedings in the Consumer and Commercial Division: cf s 65 Publication of names or identification of persons involved in certain proceedings, which applies to proceedings in the Guardianship Division, decisions under the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) and such other classes of proceedings as may be prescribed by the regulations.
6. However, in my view, the ability to broadcast or publish documents received from an opposing party in proceedings or to which access is granted following issue of a summons to a non-party is regulated by the common law. In this regard documents provide in proceedings, including proceedings before the Tribunal, are subject to what has been referred to as an "implied undertaking not to disclose contents of documents filed in court until received in evidence".
7. The nature of the implied undertaking was considered by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. There the plurality, Hayne, Heydon and Crennan JJ, said at [95]-[98] (citations omitted): The extent of the "implied undertaking" 95 Before turning to the appellants' submissions in relation to the extent and enforceability of the "implied undertaking", it is desirable to set out some background legal principles which were not in controversy. 96 Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories[68], documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin. 97 It is common to speak of the relevant obligation as flowing from an "implied undertaking". 98 It may be noted that the general law protection is often buttressed by protection from rules of court. Thus until 15 August 2005, the New South Wales Supreme Court Rules 1970, Pt 65 r 7, prevented strangers to litigation from having access to documents or things on the court file without the leave of the Court: see also Practice Note No 97. From 1 March 2006, Practice Note SC Gen 2 prescribed procedures in relation to access to Supreme Court files. The most important paragraphs are: "6. Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7. Access will normally be granted to non-parties in respect of: . pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; . documents that record what was said or done in open court; . material that was admitted into evidence; and . information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist."
8. As noted by the plurality at [96], documents cannot be used "for any purpose other than that for which it was given unless it is received into evidence". It follows that documentary evidence that has not been received into evidence may not be disclosed, published or broadcast outside the proceedings, at least not without an order from the Tribunal relieving a party from any implied undertaking imposed by the general law.
9. On the other hand, subject to any order made by the Tribunal under s 64 of the NCAT Act, documents which have been received into evidence in an open hearing in proceedings in the Consumer and Commercial Division are, at that point, no longer subject to the implied undertaking. No permission is required from the Tribunal in connection with publication of these documents. Of course, the permissibility of such publication remains subject to other considerations including the law of defamation and copyright issues.

Sound recording request

1. 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.
2. 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) o the CS Act. A judicial officer includes a Member of the Tribunal: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [65].
3. A determination about whether permission should be granted involves the exercise of discretion. The CS Act is silent on the circumstances to be taken into account in determining whether permission should be granted. There is no direct authority to which I have been referred concerning the approach to be taken by the Tribunal in deciding whether to grant permission under the CS Act.
4. The starting point is that there is a statutory prohibition on recording, transmitting or distributing the sound recording proceedings. The objects of the CS Act include "to provide for the secure and orderly operation of courts": s3(a) of the CS Act.
5. In this regard it can be accepted that relevant considerations include issues of general security and the need to prevent people inappropriately photographing witnesses or recording proceedings. This might include protecting against inappropriate use through social media and other publication platforms. So much seems clear from the objects of the CS Act and the Second Reading Speech on the introduction of the CS Act (per The Hon Eric Roozendaal, Parliamentary Secretary - 2 March 2005) and on the amendment of the CS Act in 2020 (per Mark Speakman- Attorney General and Minister for the Prevention of Domestic Violence-16 September 2020).
6. The principle of open justice is relevant in determining whether permission should be granted. The principle is recognised in s 3 of the NCAT Act and operates in respect of such proceedings in the Tribunal.
7. 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 (John Fairfax). The case concerned a request by a journalist for access to documents filed in criminal proceedings in the Local Court, presumably for the purpose of publishing a story in relation to the subject matter of those proceedings which involved a Magistrate, Patricia O'Shane.
8. There, the Court explained that the principle of open justice is just that, a principle. There is no common law right to obtain access to a document filed in proceedings that is held as part of a court record. At [29]-[31] Spigelman CJ, with whom Mason P and Beazley JA (as she then was) agreed, said: 29 Neither the Claimants, nor the public at large, have a right of access to court documents. The "principle of open justice" is a principle, it is not a freestanding right. It does not create some form of Freedom of Information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right. 30 A principle, as Professor Ronald Dworkin has stated: "… states a reason that argues in one direction but does not necessitate a particular decision … There may be other principles or policies arguing in the other direction … If so, our principle may not prevail, but that does not mean that it is not a principle of our legal system, because in the next case, when these contravening considerations are absent or less weighty, the principle may be decisive." (R Dworkin, Taking Rights Seriously (1977) at 26) 31 There is no common law right to obtain access to a document filed in proceedings and held as part of a court record. (See R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289 at 305-307; Dobson v Hastings [1992] Ch 394 at 401-402; Smith v Harris [1996] 2 VR 335 at 347-350; R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Unreported, Supreme Court of Tasmania, Slicer J, 19 November 1998); Titelius v Public Service Appeal Board (1999) 21 WAR 201 at [74]-[88], [99]; Note "The Common Law Right to Inspect and Copy Judicial Records: In Camera or On Camera" (1982) 16 Georgia L Rev 659.)
9. Spigelman CJ then explained the principle of open justice and its purpose in the following terms (at [60]-[64]): 60 The principle of open justice is a fundamental axiom of the Australian legal system. It informs and energises numerous areas of the law as I have sought to show elsewhere. (See Spigelman "Seen to be Done: The Principle of Open Justice" (2000) 74 ALJ 290, 378.) It is appropriate for the court to have regard to the principle when determining applications for access under any express or implied power to grant access. In this regard it is, however, pertinent to recognise that the principle has purposes related to the operation of the legal system. Its purposes do not extend to encompass issues of freedom of speech and freedom of the press. 61 The purpose of the principle of open justice was well stated by Jeremy Bentham who said: "Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial." (Quoted in Garth Nettheim, "The Principle of Open Justice" (1986) 8 U Tas L R 25, 28 from Bowring (ed), Works of Jeremy Bentham (1843) Vol 4 at 316-317.) 62 To similar effect are the observations of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450: "If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice." 63 Finally, Sir Harry Gibbs observed in Russell v Russell (1976) 134 CLR 495 at 520: " … [T]he proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts." 64 Many similar observations could be quoted.
10. His Honour continued at [69]: The underlying principle is as stated by Byrne J in Smith v Harris [1996] 2 VR 335 at 350: "… [T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself."
11. As can been seen from the above, 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. As Lonergan J said in Application of Fairfax Media Publications Pty Ltd; NSW Crime Commission v Yucel [2017] NSWSC 1779 at [16]: The policy to which I need to have regard is the requirement that the judicial process be open to public scrutiny, but only to the extent necessary for the public to scrutinise the judicial process itself: John Fairfax Publications per Spigelman CJ at [29]-[31]. The principle of open justice needs to be balanced against other principles of justice which protect the interests of the parties to litigation.
12. 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.
13. A second consideration to a request for permission relates to reporting of proceedings. In John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 (Police Tribunal Case) McHugh JA said at 481: I think that the right to publish a fair and accurate report of court proceedings is a common law right of sufficient significance to fall within this preferred category. The importance which the common law has attached to a fair and accurate report of court proceedings is illustrated by the rule that its publication is not a contempt of court even though it is likely to prejudice the fair trial of pending proceedings: R v Evening News; Ex parte Hobbs [1925] 2 KB 158; Re Consolidated Press Ltd; Ex parte Terrill (1937) SR (NSW) 225; 54 WN 106. It is also illustrated by the rule that a fair and accurate report of court proceedings made in good faith is not an actionable defamation. Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice.
14. Similarly, in Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 (Esso) 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". Thus even a statutory power to exclude the public from proceedings will not necessarily abrogate this common law right. Furthermore, when information given in court proceedings is protected, it is not the publication per se that is objectionable, rather it is the contempt of court resulting from disobedience of the non-publication order. Only publications which interfere with the due administration of justice will of themselves amount to a contempt of court. And even when the guiding concern is the "due administration of justice" rather than the private rights and interests of parties, there is still some recognition that the privacy of hearings and the non-publication of matters raised at trial to a large extent go together. Thus when a witness reveals his or her identity at an open court hearing, a previous non-publication direction may be taken to have been effectively abandoned.
15. 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.
16. As to other considerations, in my view they include: 1. The purpose or purposes for which permission is sought; 2. 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; 3. The harm or possible detriment to the person whose information might be recorded, transmitted or published;
17. Finally, 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.

Determination of the present application

1. The applicants seek permission to publish documents and the sound recording.

Documentary request

1. Particular documents for which permission is sought were not identified other than by reference to the general description of "all material submitted by both parties in these cases".
2. As I indicated above, documents that have been received into evidence (at least in a hearing open to the public) are no longer subject to the implied undertaking. No orders have been made under s 64 of the NCAT Act in relation to such documents.
3. Consequently, permission is unnecessary for this category of documents.
4. As to documents filed by the respondent that have not been received into evidence, these continue to be subject to the implied undertaking. That is, in so far as the applicants have received documents from the respondent during the course of these proceedings which have not been received into evidence, the applicants are not permitted to use such documents for any other purpose outside the proceedings, including publication to third parties.
5. The Tribunal, in appropriate circumstances, has power to release a party from the implied undertaking: per Brennan J (as he then was) in Esso at [7].
6. However, in the present case no documents have been identified which might be the subject of the implied undertaking. No application has been made in respect of specific documents. It is otherwise inappropriate to make a general order releasing the implied undertaking. Further, even if such documents had been identified, for the reasons identified below in connection with permission to publish or transmit the sound recording, I am not satisfied that the implied undertaking should be released.
7. The documentary request is therefore dismissed.

Sound recording request

1. As stated in the applicants' written submissions, the extent of the proposed publication is to: 1. Members of the "TripACon TripADeal" Facebook group who are described as "fellow victims of the respondent"; 2. Members of the "Travel Industry Issues-the need for change for Australians" Facebook group who are described as "like-minded people seeking to increase protections for Australian travellers"; and 3. Unnamed Media outlets for the purpose of "long form (sic) exposure of the issue to further the case for legislative change in the industry".
2. The applicants' representative, Mr Kenny, made the following submissions in support of the application: 1. He and the other applicants were obtaining no financial benefit from this request; 2. There is a problem with consumer laws which requires rectification; 3. People who are affected will be scared about going to court and the risk of costs. The information, particularly the sound recording, will inform parties about how hearings are conducted and what it is like in the Tribunal; 4. Presently, due to the COVID-19 pandemic, members of the public cannot attend hearings and observe the process. Publication of the sound recording will permit those interested to listen in to the hearing process; 5. Access to the sound recording may assist possible claimants; and 6. It is reasonable to make exceptions in the pandemic.
3. In reply, the respondent made the following submissions: 1. There is no public benefit to release of the sound recording and other information. In originally dismissing the proceedings at first instance, the Tribunal provided an 11 page decision which is sufficient for interested parties to understand the legal principles and their application. This is sufficient to meet any goal of education. 2. Open justice is provided by a party being permitted to "dial in" to a hearing even if they cannot attend. Non-parties can contact the Tribunal and request access to a particular hearing event; 3. The release of the sound recording and documents for the identified purposes will occur in circumstances where those receiving the information will be under no obligations regulating how that material might be used. There might be misreporting and/or third parties might misconstrue what happened at the hearing. It might be different in circumstances involving members of relevant media organisations who might be subject to some professional code. However that is not the position here. 4. There is a risk that any electronic copy might be "cut up" and used to attack the respondent and its reputation; 5. There is a risk that the respondent's representatives would be subject to vilification; 6. There is no reason why Crown copyright should be released.
4. In support of its submission concerning possible misuse and vilification, reliance was placed on a document containing extracts of comments made on the "TripACon" Facebook page. Those comments included: … founder, managing director of tripAdeal and phoneAflight and general all round scumbag. … … PhoneAFlight something he's concocted since the Coronavirus pandemic. … … Our collective voice is what they should fear the most.
5. In my opinion, the present request is not one for which permission would be justified by reference to the principle of open justice.
6. Consistent with John Fairfax, there is no right arising from this principle requiring the grant of permission.
7. Insofar as non-parties wish to listen in to proceedings heard by telephone or through an audio visual link (AVL) during the pandemic, a request can be made to the Registrar and, in appropriate circumstances, access can be given. Relevant considerations about granting access to a telephone/AVL hearing might include technology limitations, how many people seek to attend and the orderly functioning of the business of the Tribunal in the difficult circumstances created by the pandemic. In this regard, the primary consideration is the just, quick and cheap resolution of the real issues in dispute and the interests of the parties to that dispute.
8. It can be accepted that the absence of face-to-face hearings may reduce the ability for the public to easily observe the hearing process, a situation created by the pandemic. However, in my opinion, the open justice principle is not infringed. This is because attendance by non-parties is still permissible, albeit with some inconvenience to that encountered if attending a hearing in person. Further, the fact sound recordings are available for the purpose of the appeals maintains a capacity for reasonable scrutiny of the Tribunal processes and its Members in the circumstances arising from the pandemic.
9. As to the educative benefits in releasing the sound recording, the applicants have not identified why the sound recording in question would provide benefits of the type asserted, other than in the most general way, namely by permitting non-parties to listen in to what occurred in the particular case.
10. Subject to the constraints outlined above, a non-party may, by arrangement, listen in or observe by AVL proceedings in the Tribunal in order to gain an understanding of what is involved. Consequently the asserted need is not made out.
11. Further, general information is already provided by the Tribunal to those who wish to make a claim including how to lodge an application and participate in a hearing.
12. In addition, the Tribunal has a positive obligation to the parties under s 38(5) of the NCAT Act: … to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
13. By performing these obligations the Tribunal can assist parties who do not understand the procedures of the Tribunal to effectively engage in proceedings before it.
14. Consequently, these matters of public interest do not warrant the grant of permission in the present case.
15. As to the particular purposes identified by the applicants, I am not satisfied permission should be granted for these reasons either.
16. First, I do not accept that granting permission to publish or transmit the content of the sound recording through these web sites is necessary for the purpose of law reform or for the purpose of fair reporting of proceedings in the Tribunal. No parts of the sound recording were placed in evidence before me to demonstrate why permission should be granted or how that material might be remotely relevant to advocating for law reform.
17. Secondly, the applicants were unsuccessful in their claim. It was dismissed. Reasons for decision were given. An appeal was settled with consent orders on terms that the settlement remain confidential. Again, these facts provide no support for permission now being granted to allow publication or transmission of the sound recording.
18. Thirdly, the release of the sound recording for the purposes disclosed would permit uncontrolled distribution of its content by those receiving the information who are not constrained by any conditions that might be imposed by the Tribunal as to its use.
19. I accept the respondent's submission, based on the Facebook website content, that the sound recording may be used for improper purposes by those in the user groups identified. In particular, the use of expressions such as "scumbag" to describe those associated with the respondent by certain content providers of the "TripACon" group suggest that those persons might use the sound recording to vilify or inappropriately criticise the respondent.
20. Consequently, it is reasonable to conclude on the evidence provided that recipients might use the information for purposes unconnected with the proceedings, unconnected with the principle of open justice and in a manner that might cause damage to the respondent or those associated with it.
21. It follows that I am not satisfied that permission to publish or transmit the sound recording should be given and I decline to do so.

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 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: 01 September 2021