Ross v The Qimmy Adam Agency Pty Ltd [2025] NSWCATAD 290;

1. Ms Ross states that the application has been prompted by an unfavourable reference given by the agency to another agency with whom she had made an application to be joined as a co-tenant to an existing tenancy agreement. She states that the giving of the reference is retaliatory. It appears from Ms Ross's statements that she believes the retaliatory action was taken because she had previously made an application against the landlord of the premises to the Tribunal in the Consumer and Commercial Division seeking compensation for damage to a motor vehicle and non-economic loss. It is not clear from the application for interim orders whether she believes the retaliatory reference was given because she had made a compliant to ADNSW.

Procedural history and application for confidentiality orders

1. As noted above, the application for interim orders was made on 2 October 2025. On the same day directions were made for the filing and serving of evidence and submissions and the application was listed for hearing on 7 October 2025. Both parties filed material in accordance with the directions and appeared at the hearing. The hearing proceeded over an audio visual link and no application for confidentiality or other orders was sought or made prior to the conclusion of the hearing.
2. On 14 October 2025 I forwarded my decision on the application for interim orders to the Tribunal Registry for publication. On 15 October 2025 the parties were informed by the Registry that the decision would be published to Caselaw at 10:00 am on 16 October 2025. Ms Ross then made an application for orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting disclosure of her name and any identifying details.
3. Publication of the decision was deferred pending the outcome of the application for confidentiality orders. The agency was directed to provide any submissions in response to the application for confidentiality orders and Ms Ross was given an opportunity to provide reply submissions. The parties were also advised that, insofar as the material relied upon by Ms Ross in the application for confidentiality orders may be relevant to the making of the interim order under s 105 of the Anti-Discrimination Act but is not material previously provided to the Tribunal in response to earlier orders concerning the filing of evidence and submissions, that material will not be taken into account by the Tribunal in the application for interim orders. This was because the hearing in relation to the interim orders had proceeded on the basis of the material filed and no provision was made for the filing of additional material.
4. The agency filed submissions in relation to the confidentiality orders but nothing further has been received from Ms Ross. The parties were also given an opportunity to make submissions as to whether the Tribunal should dispense with a hearing pursuant to s 50(2) of the NCAT Act in relation to the application for confidentiality orders. The agency consented to this course but no response has been received from Ms Ross. I am, however, satisfied that the application for confidentiality orders can be adequately determined in the absence of the parties and a hearing dispensed with.
5. The starting point for the consideration of the issues raised in the application for confidentiality orders is s 49 of the NCAT Act. That section provides that hearings of the Tribunal are to be conducted in public unless the Tribunal orders otherwise. The presumption therefore is that proceedings of the Tribunal will be public. Sub-section 49(2), however, qualifies that presumption by providing that a hearing may be conducted wholly or partly in private 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.
6. Division 6 of Part 4 of the NCAT Act is titled "Information disclosure" and contains a number of provisions which prevent or limit the disclosure by the Tribunal of certain categories of information. Central to this application is s 64(1)(a) which provides:

(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)

1. Section 64(4) provides that 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.
2. The Tribunal is bound by the principles of procedural fairness and open justice. However, various legislative provisions, including ss 49(2) and 64 of the NCAT Act, modify or limit the content of those principles. The Tribunal is permitted to make confidentiality orders over material if it is satisfied it is desirable to do so. What is "desirable" must be determined in accordance with consistent standards and values, including open justice principles: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61]; Metleg v Commissioner of Police [2021] NSWCATAD 358 at [38]- [39]; Grant v Commissioner of Police [2020] NSWCATAD 158 at [24].
3. In her application for the orders Ms Ross refers to "evidence" including "documentation" and "medical records" concerning her disability, mental health and personal circumstances. The application for interim orders focussed on alleged conduct by the agency in providing an unfavourable reference which Ms Ross claimed was retaliatory. The matters Ms Ross raises and which she states should not be disclosed are not included in any of the material previously filed with the Tribunal by either party in relation to the application for interim orders. Indeed, no medical evidence was filed by Ms Ross and the only reference to her disability was a statement made by her at the hearing that she suffers from PTSD. There is no reference to the circumstances which may have caused PTSD.
4. I am not satisfied that any material filed or evidence given in relation to the application for interim orders is of a confidential nature to warrant the making of an order under s 64(1)(a) of the NCAT Act. In order for Ms Ross to establish a complaint of disability discrimination she must have a disability as defined in s 4 of the Anti-Discrimination Act. I do not consider that a reference in the evidence and these reasons to PTSD, without anything more, means that it is desirable to make the order sought by Ms Ross.
5. The application for confidentiality orders is therefore refused.
6. What follows are my reasons for dismissing the application for interim orders taking into account the evidence provided in relation to that application.

1. The Tribunal has power to make an interim order under s 105(1) of the Anti-Discrimination Act:

The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order -

(a) to preserve the status quo between the parties to the complaint, or

(b) to preserve the rights of the parties to the complaint, or

(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,

pending determination of the matter the subject of the complaint.

1. It is difficult to determine the basis upon which the interim orders, as framed, are sought. It cannot be said that the orders would preserve the status quo between the parties. The only relationship between the parties is that of former tenant and former landlord's agent and there would be no change to that relationship. The orders also do nothing to preserve the rights of the parties to the complaint. Those rights are unchanged for both Ms Ross and the agency.
2. It is possible that the orders sought could be relevant to s 105(c) - returning the parties to the complaint to the circumstances they were in before the contravention of the Act pending determination of the matter the subject of the complaint. Those circumstances would likely be that there existed a tenancy agreement between Ms Ross and the landlord which was managed by the agency. It is difficult to see how the orders sought would return Ms Ross and the landlord to those circumstances.
3. There is also another fundamental problem with Ms Ross's application for interim orders.
4. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 at [18]- [19] the Appeal Panel considered the principles to be applied in determining whether or not to make an order under s 105. The Appeal Panel said:

In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as:

. . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.

1. In Dhillon at [13], the Appeal Panel observed that interim orders should do the minimum necessary to do justice between the parties as typically, such orders are made pending a final determination of the proceedings. At [19] the Appeal Panel noted that the power conferred on the Tribunal under s 105 is not "at large", but rather the power is limited to the making of orders relating to or affecting the statutory rights of the parties under the Anti-Discrimination Act.
2. While each of the principles in s 105(1)(a), (b) and (c) are expressed in the alternative, the Appeal Panel in Dhillon held at [12] that the principles applicable to interlocutory injunctions provide useful guidance. Those principles are, firstly whether the applicant has a prima facie case and, secondly, to consider the balance of convenience, that is, whether the inconvenience or injury which Ms Ross would be likely to suffer if the application were refused outweighs or is outweighed by the injury which the agency would suffer if the application were granted.: see Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46.

Is there a prima facie case and where does the balance of convenience lie?

1. The phrase "prima facie case" does not mean that Ms Ross must show that it is more probable than not that, at final hearing should the matter proceed that far, she will succeed. It is sufficient that she show a sufficient likelihood of success to justify in the circumstances the making of the order pending the determination of the complaint. The High Court has emphasised that there is no inflexible rule as to the extent to which the legal merits of a case must be examined before determining whether to make an interim order: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. It depends on the nature of the dispute.
2. The fundamental problem with Ms Ross's application for interim orders is that she has provided no evidence of what her complaint of discrimination and victimisation entails. Accepting that she has a disability, I simply do not know what conduct of the agency is complained about in her complaint to ADNSW.
3. Ms Ross refers to a statement in a decision dated 16 September 2024 of the Tribunal in relation to her claim against the landlord for non-economic loss where the Member refers to harassment of Ms Ross by the agent. However, I don't know whether the incident referred to forms part of Ms Ross's discrimination complaint and I certainly don't know what other allegations form the basis of her complaint. There is also no indication in the Tribunal's decision that any harassment was on the basis of Mr Ross's disability.
4. I also note that Ms Ross advised at the hearing that the only conduct complained of in the application for interim orders and which forms the basis of that application (and which is denied by the agency) is not conduct that forms part of her complaint to ADNSW.
5. Ms Ross's complaint to ADNSW includes a complaint of victimisation. Section 50 of the Anti-Discrimination Act provides:

50 Victimisation

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

1. As stated by Deputy President Hennessy ADCJ in Najmitdinov v Woolworths Group Ltd [2019] NSWCATAD 51 at [9]:

There are three elements of s.50(1). First, the applicant must have been subjected to a detriment. Secondly, the applicant must have done one of the things listed in s.50(1)(a)-(d) or the discriminator knows or suspects that the person has done or intends to do any of those things. Thirdly, the detriment must be "on the ground" that the applicant has done, or intends to do, one of those things.

1. The agency states the reference in question was given before it became aware of Ms Ross's complaint to ADNSW of discrimination and victimisation. Ms Ross states that in a hearing before the Tribunal on 4 July 2025 in relation to her application for compensation she referred to a complaint to ADNSW. Other than this statement which was not made in any of the material submitted by Ms Ross in support of her application for interim orders, there is no other evidence before me to either substantiate that the agency knew or suspected that Ms Ross had done or intended to do any of the things in s 50(1)(a)-(d). I am therefore unable to determine if a claim of victimisation might be made out.
2. As I am unable to make any assessment of the merits of Ms Ross's complaint, I am unable to determine whether she has a prima facie case. Similarly, I cannot determine where the balance of convenience lies. There is no evidence that any actions of the agency have or would interfere with the investigation of Ms Ross's complaints being undertaken by ADNSW or would likely impact any subsequent determination by the Tribunal of her complaint. In these circumstances the application must be dismissed.

1. The agency seeks its costs of the application for interim orders. It also asks that any order for costs be made on an indemnity basis.
2. Under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") the usual rule is that each party bears its own costs. However, a costs order can be made if "special circumstances" are established.
3. In determining whether there are special circumstances warranting an award of costs, s 60(3) provides that the Tribunal may have regard to:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

1. The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with the applicant for the costs order: Styles v Wollondilly Shire Council [2017] NSWCATAP 108 at [5].
2. Special circumstances are those that are out of the ordinary, and they do not have to be extraordinary or exceptional: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81. In Kaye v The Owners - Strata Plan No 4350 [2022] NSWSC 1386 at [70], Basten AJA said that the term "special circumstances" in s 60 of the NCAT Act is "not a term of art":

"[70] ...Its scope and operation will depend heavily on the context in which it appears. A particular circumstance which appears to be special in one case may not be so in another. It is not a phrase which readily gives rise to appellate explication."

1. Where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. The Tribunal must further be satisfied that they are circumstances "warranting an award of costs": Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [108]. Under s 60(4) of the NCAT the Tribunal is able to award indemnity costs.
2. The agency submits that special circumstances exist because:

(1) Ms Ross made the application for interim orders without any evidence and indeed made statements in direct contradiction to the reference that the agency had in fact provided to the other agent. On this basis, Ms Ross's claim has no tenable basis in fact or law pursuant to s 60(3)(c) of the NCAT Act.

(2) Ms Ross has conducted the proceedings in a way that has unnecessarily disadvantaged the agency pursuant to s 60(3)(a) of the NCAT Act. This submission is made on the basis that Ms Ross brought the application without notice to the agency and without giving it an opportunity to respond to her allegations in circumstances where the matters complained of by her in this application would have fallen away if she had provided the agency such an opportunity.

(3) The proceedings commenced by Ms Ross are frivolous, vexatious and otherwise misconceived and lacking in substance pursuant to s 60(3)(e). In addition to the matters in (1) the agency further notes that Ms Ross has a history of bringing exaggerated claims in this forum and further, has been noted by a Tribunal member to have credibility issues. The agency refers to a statement by the Member in the 16 September 2024 decision in relation to another aspect of that claim that Ms Ross's evidence was "dubious".

1. The agency submits that the unmeritorious and unfounded application by the Ms Ross represents an unwarranted resource and costs burden on the agency.
2. Ms Ross states that she was advised by an officer at ADNSW to make the application for interim orders.
3. The agency's submissions on costs are focussed on the veracity of Ms Ross's complaint about the reference the agency provided to another agent who had received a tenancy application from her. Neither the submissions on costs nor the submissions in relation to the application for interim orders made by the agency have grappled with the law and principles relating to the making of interim orders under s 105 of the Anti-discrimination Act. Ms Ross's application for interim orders has not succeeded for the reasons stated above, not because her characterisation of the reference was untenable. Indeed, I have made no assessment of whether the reference was justified.
4. Ms Ross is not legally represented and appears to have taken the advice of an officer of ADNSW to make the current application. The agency has misconstrued the application and has not assisted the Tribunal in coming to the decision to dismiss the application. Simply because an application fails is not a basis to find special circumstances warranting an award of costs, let alone an award on an indemnity basis.

(1) The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the application for confidentiality orders can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application for confidentiality orders is refused.

(3) The application for interim orders is dismissed.

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.