Southey v Australian Press Council

NCAT Administrative and Equal Opportunity|2022-10-07

REASONS FOR DECISION

Ms Southey brought discrimination claims against Australian Press Council (APC) in proceedings 2022/00230928, 2022/00230933 and 2022/00233496. The APC has made an interlocutory application that the proceedings before the Tribunal be summarily dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) on the basis that they are frivolous or vexations or otherwise misconceived or lacking in substance.
For the reasons that follow, we have decided to: 1. grant the application for summary dismissal as to proceedings in 2022/00230928 and 2022/0230933 concerning publications published in January 2019 involving Ms Amati. 2. dismiss the application for summary dismissal as to the proceeding in 2022/233496 concerning a publication published online on 9 December 2018 involving Mr Huntley.

The President's Reports

On 15 and 16 February 2021, the President of the Anti-Discrimination Board (ADB) received complaints from Ms Southey alleging transgender discrimination in the provisions of goods and services as to APC's conduct in regard to publications involving Ms Amati. The two complaints were consolidated pursuant to s90(2) of the Anti-Discrimination Act (NSW) (the AD Act).

Complaints about publications concerning Ms Amati

Complaints 2022/00230928 and 2022/0230933 concern publications in the Daily Mail and in the Australian newspaper in 2019 involving Ms Amati which referred to her transgender status. The publications were about the sentencing hearing in the NSW District Court in January 2019, after Ms Amati had been convicted of attempted murder as to her attacks with an axe on 3 people in a 7-Eleven store on 7 January 2017.
The article in the Daily Mail was headlined 'Life of privilege to triple attempted axe murderer. How highly intelligent transgender woman, 26, spiralled into depression before bludgeoning strangers in a 7 Eleven while high on drugs.' The article also referred to Ms Amati's transgender status in the body of the article and in the captions accompanying her photographs.
The article in the Australian newspaper makes no reference to transgender in the headline and refers to Ms Amati as a 26 year old transgender woman in the body of the article.
APC's response to Ms Southey's complaints was that the (ED) of the APC reviewed the complaints and found that there was no breach of the Standards of Principles. Secondly, that it dealt with Ms Southey's complaints in accordance with its complaint handling process.

Complaint about publication concerning Mr Huntley

Complaint in 2022/233496 involves an online article published on 9 December 2018 by Daily Mail Australia. The headline of the article was: 'Child killer Ian Huntley who murdered 10 year-olds Holly Wells and Jessica Chapman 'wants a sex change so he can move jails and start a new life as a woman named Nicola (and is even demanding stockings for Christmas).'
APC's response to Ms Southey's complaint on 29 May 2020 was that the ED of the APC decided not to proceed further with the complaint as it considered that the publication has 'sufficiently remedied the matter' by removing the article.

Interlocutory application for summary dismissal and joiner

On 30 August 2022 the APC made an application seeking that the proceedings be summarily dismissed or in the alternative are joined. Attached to the application is a document setting out grounds for the application.
The ground for the joiner of the proceedings is that the three separate complaints relate to decisions made by the ED of the APC, in considering complaints by Ms Southey pursuant to its complaint handling procedures. Secondly, that the factual matrix surrounding the decisions is substantially similar in each case as each complaint was declined at the same stage of the complaints handling procedure.
The ground for the dismissal is in reliance on findings made in Southey v Australian Press Council Inc [2021] NSWCATAD 329 (Southey) that: 1. The subject matter of the article originally complained about were about transgender issues [143] Southey; 2. That the APC did not deal with the complaint or treat Ms Southey in a discriminatory manner because of transgender issues [143] Southey.
Written submissions in support of the application were filed by APC on 7 September 2022 and Ms Southey made written submissions in reply on 5 October 2022.

Principles as to summary dismissal

Section s55(1)(b) of the CAT Act allows for a proceeding to be dismissed in whole or in part at any stage if the Tribunal is satisfied that the proceedings are misconceived or lacking in substance, or if the Tribunal considers that the proceedings are vexatious or frivolous.
In Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232; (2020) NSWLR 91 (Zonnevylle), McCallum JA with whom Macfarlan and Leeming JA agreed found that the Tribunal has broad power under s55(1) to 'deal with abuses of its processes'. [45]
The principles as to the Tribunal's power to dismiss proceedings under s55(1)(b) of the CAT Act and the similar provisions in s 102 of the AD Act are well known. A complaint or part of a complaint can be dismissed if it is 'so clearly untenable that it cannot possibly succeed.' General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.
Dismissing a complaint without an opportunity for an applicant to file any pleadings or evidence in support of the claim should only be used in exceptional circumstances and with extreme caution. Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24].
In a dismissal application, the applicant's case in the substantive proceedings is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act. Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order. Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].
In Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11] the Appeal Panel considered the predecessor to s102 of the AD Act and stated that: Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.
A complaint is misconceived or lacking in substance if it can be demonstrated that there exists no factual or legal basis for the allegations or that the allegations lack merit. Battenberg v The Union Club [ no 2] [2003] NSWADT 187 at [15].
Vexatious proceedings are those that persistently attempt to re-litigate a matter that has already been determined; Walton v Gardiner (1993) 177 CLR 378 at 383, [23], Zonnevylle at [46], or are instituted with the intention of annoying or embarrassing the person against whom they bought. Proceedings that are bought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise where they're so obviously untenable or manifestly groundless as to be utterly hopeless have also been found to be vexatious. Attorney General v Wentworth (1988) 14 NSWLR 481 at 491.
In Zonnevylle, the Court found that in considering whether to summarily dismiss an application, the history of previous proceedings is relevant. At [53] McCallum JA stated: The history of Mr Zonnevylle's proceedings similarly demonstrated a determination to persist in the pursuit of allegations previously found to have been baseless and to persist in wasting the Tribunal's time and resources by urging it to make findings it has no power to make. It enabled the Appeal Panel to assess whether Mr Zonnevylle persisted in those quests for want of a better understanding of the scope of the proceedings (as might have been inferred if it was his first appearance in the Tribunal) or whether (as suggested by the history) his persistence indicated vexatiousness. In my view, the history was plainly relevant and the Appeal Panel was, with respect, wrong to disregard that material.
The Tribunal, in deciding whether to exercise the power to summarily dismiss a complaint, or part of a complaint, must take the facts alleged to constitute discrimination and consider whether they reveal an arguable case. Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27];
In the present case, where Ms Southey has had no opportunity to file any pleadings or evidence, it is not for the Tribunal to consider how Ms Southey may plead her case or to conduct an assessment of the evidence that Ms Southey may lead at a final hearing. Forrester v AIMS Corporation and Ors [2004] VSC 506; (2004) 22 VAR 97 at [33]. Ms Southey made no indication at the summary dismissal hearing that she did not intend to rely on a Points of Claim or file further evidence.
We also take into account the guiding principle in s 36(1) of the CAT Act that applies to the Tribunal's practice and procedure which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

APC's submission on the summary dismissal

The basis for APC seeking summary dismissal of Ms Southey's complaints turns on the evidence considered and findings made in Southey. APC also submits that the Tribunal should make an inference that because Ms Southey did not proceed with an appeal against the order in Southey, she knows that the appeal was 'doomed'.
In Southey, the Tribunal dealt with 5 previous complaints reporting on Ms Amati: Southey [78]. These were dealt with by an adjudication committee and determined in Adjudication 1707. The Tribunal determined a direct discrimination complaint. At [123] the Tribunal found that for a direct discrimination complaint to be made out, Ms Southey needed to establish that; first, 'a complaint about a publication involving a transgender person was treated less favourably than a complaint about some other sort of matter' or attribute and secondly that the 'real reason for the complaint being treated less favourably than a complaint about a different sort of matter was treated was the transgender status of the complainant or the fact that the complaint was a complaint regarding an article about a transgender person.'
APC refers to previous complaints Ms Southey made to the ADB in regard to Ms Amati that were declined pursuant to s92(1) of the AD Act in 2020. None of the complaints were in evidence before the Tribunal.
APC also relies on the fact that Ms Southey has made a number of previous complaints to the ADB and is continuing to make complaints to the ADB in regard to APC's conduct.
At the hearing, APC referred to the decision in Turner v State Transit Authority & Anor [2004] NSWADT 89 and submitted that s38M(b) of the AD Act does not extend to the 'manner' in which services are provided and that in effect Ms Southey is complaining about the 'manner' in which the service was provided and not about the 'terms' in which the service was provided.
APC submits that the question for the Tribunal is not whether complaints made about publications concerning transgender people are to be compared to publications concerning people who do not have this attribute or have a different attribute but that the correct analysis is whether Ms Southey was treated less favourably than a hypothetical non-transgender person would have been treated.
The APC's submissions as to vexation are that in Southey, the Tribunal found that the manner in which Adjudication 1707 was dealt with was not discriminatory. It submits that the complaints about the publications concerning Ms Amati are substantially in the same terms as the publication determined in Adjudication 1707.

Ms Southey's submission on the summary dismissal

Ms Southey distinguishes the facts and law in the Southey decision from the facts in the complaints before the Tribunal that concern Ms Amati. First, the publications whilst all dealing with Ms Amati's crime are different as to the time period and publisher. Secondly, Mr Pender made the decision by himself while in Southey, the decision was made by the Adjudication Panel. Thirdly the APC's decision to 'discontinue' was different to the decision to 'adjudicate'.
Ms Southey submitted that Southey dealt with direct discrimination claim, while these claims concern allegations of indirect discrimination. On this basis, Ms Southey contends that the complaints in regard to Ms Amati are similar but not the same in fact or law.
Ms Southey also submitted that the decision in Southey was 'vulnerable' for a number of reasons that included factual findings made by the Tribunal and the submissions the Tribunal accepted.
On this basis, Ms Southey contends that APC's submissions that the complaints are an abuse of process, are hopeless, doomed to fail, not recognised in law have not been made out.
Ms Southey explained that when she made the complaints about the publications concerning Ms Amati in January 2019 the Southey matter was before the Tribunal. APC applied to have these complaints and other complaints made by Ms Southey stayed until the Southey decision in first instance and on appeal was resolved.
As to other complaints, Ms Southey submitted that as a Director of Rainbow Rights Watch she has made complaints about differences in reporting by the media and differences in decisions of the APC as to transgender status compared to other protected characteristics.
Ms Southey submits that the complaints are not vexatious. She submits that she fully intends to prosecute the complaints to finality. She rejects APC's submission that the purpose of her complaints is to 'vent frustration or to be seen to be actively advocating her cause' or that her purpose is to be 'annoying' or 'being seen to be actively advocating for her cause'.
Ms Southey submits that her sole objective is that complaints affecting transgender persons be treated equitably by the APC. She points to an application she made to have her name supressed (Southey v Australian Press Council [2020] NSWCATAD 177) which APC opposed as evidence that she is not making the complaints to bring attention to herself.
Ms Southey denies that she 'routinely' applies to the ADB if her complaints are declined by the APC.

Consideration

APC's principal proposition is that Ms Southey's complaints ought to be dismissed because similar complaints, dealt with by a similar complaint making process were dealt with and determined in Southey.
In Southey the Tribunal accepted Ms Kinross' evidence that indicated that considerable latitude is given by APC where a matter includes a report of what happened in open court. Secondly, the Tribunal found that Ms Amati was very open on her Facebook page about her transitioning which again gave considerable latitude to the publisher to include details about transitioning in the publication.
At paragraph [102] of the Southey decision, the Tribunal makes reference to a copy of the adjudication, which stated that APC considered that the article did not suggest that the woman's transgender status caused the alleged attack. Nor did it make any stereotypical generalisations about transgender people. The ACP accepted that the references to the woman's journey through transition was publicly and extensively referred to by the woman on her Facebook page.
Based on these factual findings, the Tribunal concluded that APC's conduct in determining Adjudication 1707 in regard to the publication about Ms Amati was not discriminatory. In Southey at [141], the Tribunal found that there was no differential treatment on the ground of transgender status in the adjudication of the complaint or the treatment accorded to Ms Southey in the result of the adjudication.
While the publication dealt with in Adjudication 1707 is different to the publications subject to the complaint before the Tribunal, they are also about Ms Amati in regard to the same criminal offence. Ms Southey's current complaint to APC about the publications in 2019 occurred after the Adjudication Panel made its decision in Adjudication 1707 dismissing the complaint. As such the allegations made by Ms Southey of discrimination were already effectively dealt with in Southey and if Ms Southey's complaint about Ms Amati was permitted to proceed to a final hearing, the Tribunal would be required to reconsider the evidence it already dealt with.
In Southey there was no reference to the complaint about Mr Huntley or why a decision may be made by APC to discontinue a complaint. Plainly, any decision made by APC would be made based on the particular circumstances surrounding the complaint and the content of the publication.

Turner v State Transit Authority & Anor [2004] NSWADT 89

In oral submissions at the summary dismissal hearing, APC raised a new submission that the decision in Turner v State Transit Authority & Anor [2004] NSWADT 89 is authority for the proposition that Ms Southey's complaints are not about the 'terms of the provision of the service' within the meaning of s38M(b) of the AD Act but are about the 'manner' in which the services were provided to her. As such the Tribunal has no jurisdiction to deal with then as the complaints are outside the scope of s38M(b). APC submitted that s38M of the AD Act does not intend to cover conduct such as the complaint making process because it does not contain a provision such as one in s24(c) of the Disability Discrimination Act 1992 (Cth) : (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
This submission was not identified in the grounds for the summary dismissal application or in the written submissions. Ms Southey has not had an opportunity to deal with issue in her written submissions. It is sufficient on this basis for the Tribunal to not consider this submission or to reject it, without reasons, however we make the following observations.
In Turner, Ms Turner was permitted to board a bus on terms which were no less favourable that for other passengers. Once Ms Turner was traveling on the bus, she approached the bus driver and confronted him, initiating an exchange of unpleasantries [70]. The Tribunal accepted Ms Turner's evidence that the bus driver called her a 'cross dresser' which constituted discrimination on the ground of s38B(1)(a) of the AD Act, however, the Tribunal found that the slur was not made in the terms of the provision of the service but in the manner in which the service was provided.
In paragraphs [66] to [67], the Tribunal reasoned that common commercial contracts, particularly for inexpensive goods and services such as using public transport contain express and implied terms.
As Ms Turner was permitted to board the bus without being subjected to harassment, she was provided with 'part of the service on terms which were no less favourable than for other passengers', the slur was a 'breach of the term of the contract by which she was already bound.' [70]. In [72] the Tribunal found: 72 Section 38M(b) prohibits service providers from placing special, discriminatory conditions on their provision of services to transgender persons. In short, it seems to us that the prohibition relates to the terms and conditions on which services are offered to transgender persons. They must be no less favourable than the terms and conditions offered to other persons, in this case potential users of public bus services. Critically, the terms on which a service is provided are, unless later varied by agreement, settled before the service is provided. What happens after that is a matter of performance of the contract. In other words, it relates to the manner in which the service is actually provided.
In [74] the Tribunal found that the 'argument' between the bus driver and Ms Turner 'did not relate to terms on which the service was provided' to her.
In The Australian Press Council Inc v Southey [2021] NSWCATAP 9 (APC Appeal), the Tribunal found that APC provided Ms Southey with a 'service' within the meaning of ss4 and 38M of the AD Act, when she made a complaint to the APC in regard to a publication. The Appeal Panel concluded that: …where a private organisation offers a complaints handling service to members of the public who are affected by its activities, this generally would come within the ordinary meaning of the word 'services'. …This is particularly so, given not only the ordinary meaning of the word 'services' but also in light of the well-established principle that such term should be given a broad and liberal interpretation.
APC's argument in Southey v The Australian Press Council [2020] NSWCATAD 177 that its complaint handling processes were not a 'service' it provided to Ms Southey was found to be tainted by a narrow and artificial argument. In our opinion the argument that the complaint handling processes are not 'in the terms on which Ms Southey is provided with the services' is likewise a false dichotomy.
If s38M(b) of the AD Act is limited to prohibiting a placement of a discriminatory condition on the provision of the complaint handling processes to transgender persons, a transgender person would be unable to make complaint to the Tribunal about a complaint being discontinued as occurred in this case. Such a strained interpretation would remove any practical utility that a member of the public might have about the complaint handling process.
APC made a similar argument before the Appeal Tribunal in its reply submissions. In obiter comments the Appeal Panel said at [110] - [112]: We now turn to the APC's reply submission that, if it were found to provide a service, that service would be limited to receiving and considering a complaint but not to delivering any particular outcome. That was not identified as a ground of appeal and Ms Southey has not had an opportunity to deal with the submission. That is sufficient reason to reject it. It is for the complainant to identify the relevant service. As Brennan CJ and McHugh J said in IW at [17], "it is necessary to identify with precision … what service or services the alleged discriminator provides." The Tribunal stated that Ms Southey "does not dispute the settled position that 'services' must be identified with 'sufficient precision to relate them to the facts of the case and the issues which arise for determination' (citations omitted) Ms Southey identified the service as being complaint handling. We consider that she has identified the service with sufficient precision and the APC did not contend otherwise on appeal. A complaint handling process includes the determination of a complaint or, to use the APC's language, the delivery of an outcome. As we see it, that is part of the benefit or service provided to persons such as Ms Southey.
First, it is clear that the Appeal Panel found that: 1. the whole of the complaint making process is part of the service APC provided to Ms Southey; 2. It is up to the applicant to define the service; and 3. The terms and conditions of the service provided to Ms Southey were found in s3(1)(a) of the APC's Constitution which includes: 'considering and dealing with complaints and concerns about material in newspapers, magazines, journals and other print and digital media'. As well as the terms of the complaint handling process policy and procedure published on its website, which includes a process pertaining to secondary complainants like Ms Southey.
Secondly, we reject APC's submission that s38M(b) of the AD Act is limited to 'contractual terms'. That may be the case where there is a commercial relationship as found in Turner but there is no such constriction when the service is provided to the public at large.
We also note in Rees N, Rice S and Allen D 'Australian anti-discrimination law 2nd ed at p469 [7.2.3.1], the authors state that: The reference to terms or conditions appears to imply discrimination in the elements of the contractual relationship between the parties, whereas the prohibition against discrimination in the manner in which services are provided clearly extends the prohibition against discrimination to both non commercial arrangements and to the non contractual elements of a commercial relationship.
This explanation about the difference between 'in the terms' and 'in the manner' of provision of goods and services is consistent with the reasoning in Turner. It is not applicable to APC because there is no commercial relationship between it and Ms Southey.

Complaints involving Ms Amati

Dealing first with APC's submission that Ms Southey's complaints involving Ms Amati are vexatious. The Tribunal finds that while Ms Southey's complaints contain similar factual matters to those litigated in Southey, they are not the same. We reject APC's submissions that the complaints were instituted with the intention of annoying or embarrassing APC or that the complaints are brought for some collateral purpose.
We are of the view that the complaints in regard to publications concerning Ms Amati are fundamentally legally flawed and in that sense may be described as 'misconceived' and 'lacking in substance' for the following reason.
The complaints in regard to publications involving Ms Amati before the Tribunal are not the same as the complaint dealt with in Adjudication 1707 but they cover the same factual circumstances. The factual circumstances were dealt with conclusively in Southey. Ms Southey abandoned her appeal against the decision in Southey.
No useful purpose would be served in permitting the complaints in regard to publications concerning Ms Amati to proceed. Despite some minor differences in fact and law, the complaints do not raise any serious questions of fact to be determined or any serious questions of credit that have not already been dealt with in Southey. In circumstances where it is not disputed that Mr Pender made the decision in the complaint currently before the Tribunal and that he was also involved in Adjudication 1707, there cannot be sufficient evidence to support each of the elements necessary to ground a claim of transgender discrimination and as such Ms Southey does not to have a prima facie case.
As Ms Southey sets out in her written submissions, she seeks to overturn the issues determined in Southey, such a course was open to Ms Southey by proceeding with an appeal against the decision. An attempt to disturb the facts in a decision through a new complaint is an abuse of the Tribunal's processes.
The issues to be determined at trial would include a number of critical issues determined in Southey, specifically why APC determined to not uphold Ms Southey's complaint. Specifically reference is made to paragraphs [137] to [138] of the Southey decision.
It is the Tribunal's function on a summary dismissal application to determine whether the triable issues have been raised. The issues raised by Ms Southey are the same or similar to the issues raised with and determined in Southey. The real controversy between the parties was the subject of the claims already dealt with by the Tribunal in Southey.
Ms Southey stated in the application to the ADB that: 'if the article had made such prominent references to an offenders race or sexual orientation, the APC would not have hesitated to refer the matter to an adjudication panel for examination. The handling of my complaint cannot be reconciled. With the press council's previous treatment of similar articles that over emphasise the race of an offender.'
However the APC did exactly that in Adjudication 1707. Adjudication 1707 occurred before APC determined to discontinue Ms Southey's complaints in regard to publications referring to Ms Amati in 2019.
It is plain and obvious that Ms Southey's claim in regard to APC's conduct of discontinuing her complaints in regard to Ms Southy is insurmountable because APC would rely on the same evidence it relied on in Southy, particularly the evidence set out in paragraphs [97]-[98] of the decision in Southy. The answer to the real question either of fact or law that the rights of the parties depends on was answered in Southey, which is, APC's decision to not uphold the complaint was based on facts including that Ms Amati's transgender status and associated facts such as hormone treatment was raised in court by her lawyer and that Ms Amati had a publicly accessible Facebook account on which she posted personal details which were included in the publications. On this basis APC determined that the publication did not breach its Principles, specifically Principle 6.
There cannot be any utility in permitting the complaints about publications in regard to Ms Amati to travel any further as the matter has already been determined to finality in Southey.
It is clearly untenable for Ms Southey to possibly succeed even with an extensive opportunity to rely on a Points of Claim, file evidence and make submissions. This is simply because APC's conduct in determining the publications in Adjudication 1707 was found to be lawful.
The Southey proceedings brought into question the honestly and credit of the APC witnesses as they would in these proceedings. The real question in the current proceedings in regard to the complaints involving Ms Southey is the same or substantially the same question that was dealt and determined in Southey.
The Tribunal has already determined APC's conduct in conducting an adjudication of the publications reporting on Ms Amati, to attempt to argue that APC's conduct of discontinuing Ms Southey's complaint in light of the Adjudication decision is hopeless and bound to fail. There is a fatal legal flaw in this case making it 'so clearly untenable that it cannot possibly succeed." General Steel Industries Inc v Commissioner for Railways (NSW) HCA 69; 112 CLR 125 at 130.

Complaint involving Mr Huntley

The facts and circumstances surrounding the complaint in regard to the publication about Mr Huntley have not been dealt with by the Tribunal previously.
We reject APC's submission that the publication involving Mr Huntley was in much the same terms as those publications that were the subject of Adjudication 1707. The submission seems to assume that the publication was 'much the same' because it was also in regard to a transgender person.
We also reject APC's submission that the manner in which it handled the complaint mirrors 'almost identically' the complaints dealt with in Adjudication 1707. There was no adjudication of the complaint in regard to the publication concerning Mr Huntley. In contrast to the process adopted in Southey, the complaint was discontinued by APC.
There is simply no evidence before the Tribunal about whether or not the same processes and procedures were adopted by the APC in handling the complaint in regard to Mr Huntley.
We do not accept APC's submission that simply because there is a number of complaints made by Ms Southey, her complaints are vexatious because they are brought with the intention to annoy or for a collateral purpose or to vent frustration or to advocate for herself or her cause.

Joinder application

As two proceedings have been summarily dismissed and one proceeding has not been dismissed, there is no utility in any joinder application.
However, both parties have made submissions about the fact that there are a number of complaints currently making their way through the ADB and that some are currently before the Tribunal.
Taking into account s36 of the CAT Act and the submissions made by both parties in support of the joinder application, there may be good reasons for a joinder application in regard to other complaints involving the parties. We leave these matters in the hands of the parties
The Tribunal makes the following orders: 1. The proceedings in 2022/00230928 and 2022/00230933 are dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 2. The remainder of the Australian Press Council's interlocutory application made on 30 August 2022 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. 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: 03 November 2022

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