Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Burns v Corbett [2015] NSWCATAD 188
• Hearing dates: 17 August 2015
• Date of orders: 09 September 2015
• Decision date: 09 September 2015
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: Wright J, President; Boland ADCJ, Deputy President

Decision

The application lodged on 30 April 2015 seeking the referral to the Supreme Court under s 73(5) of the alleged contempt by the respondent is dismissed.

• Catchwords: PROCEDURE – contempt – Civil and Administrative Tribunal Act 2013 (NSW), s 73 – referral to the Supreme Court under s 73(5) – principles – where there are concurrent enforcement proceedings in the Supreme Court – referral not ordered; PROCEDURE – judgments and orders – enforcement – legislative scheme for the enforcement of orders made under the Ant-Discrimination Act 1977 (NSW), s 108(2)
• Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), ss 70, 73 and 81; Anti-Discrimination Act 1977 (NSW), ss 49ZT, 93C, 94A, 108, 109, 110, 111, 112, 113, 114, 115 and 116; Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW); Civil and Administrative Tribunal Act 2013 (NSW), ss 3(g), 7, 32, 38, 53, 72, 73, 75, 76 and Sch 1, cll 3, 6, 7, 8, 9, 10, 11, 12, 13 and 14; Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 28(4), 32(3) and 35; District Court Act 1973 (NSW), ss 199 and 203; Supreme Court Act 1970 (NSW), s 69
• Cases Cited: Attorney General of New South Wales v World Best Holdings Limited [2005] NSWCA 261; 63 NSWLR 557; Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483; Burns v Corbett [2013] NSWADT 227; Burns v Radio 2UE Sydney Pty Ltd (No 2) [2005] NSWADT 24; Burns v Sunol (No 2) [2014] NSWCATAD 126; Cardinal Project Services Pty Ltd v Hanave Pty Ltd [2011] NSWCA 399; 81 NSWLR 716; Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294; Corbett v Burns [2014] NSWCATAP 42; Corbett v Burns [2015] NSWCATAP 172; Craig v South Australia (1995) 184 CLR 163; Falun Dafa Association of Victoria Inc. v Melbourne City Council [2004] VCAT 625; Gardiner v Aquasun Pty Ltd trading as Asher Coastwise Real Estate (No 3) [2006] NSWADT 196; Iberian Trust Limited v Founders Trust Limited [1932] 2 KB 87; Italiano v Carbone [2005] NSWCA 177; Jones v Dunkel (1959) 101 CLR 298; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243; Ma Bik Yung v Ko Chuen [2002] 2 HKLRD 1; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435; Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57; 204 CLR 82; Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459; Rumble v Liverpool Plains Shire Council [2015] NSWCA 125; State of New South Wales v Kable [2013] HCA 26; 252 CLR 118; Sunol v Collier [2012] NSWCA 14; 81 NSWLR 619; Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) [2006] NSWCA 185; 66 NSWLR 77; Witham v Holloway (1995) 183 CLR 525
• Category: Procedural and other rulings
• Parties: Garry Burns (Applicant); Therese Corbett (Respondent)
• Representation: Counsel: M Sier, solicitor (Applicant); R Balzola, solicitor (Respondent); Solicitors: K&L Gates (Applicant); Robert Balzola & Associates (Legal) (Respondent)
• File Number(s): 1510228

Table of contents

Introduction - paragraph 1

Proceedings in the ADT and First NCAT Appeal - paragraph 4

Supreme Court Proceedings - paragraph 20

Section 73 Application in the Tribunal and Supreme Court Proceedings - paragraph 40

Extension of Time to Appeal Application, the Section 73 Application and the Supreme Court Proceedings - paragraph 47

The Present Section 73 Application - paragraph 53

Relevant Legislative Provisions - paragraph 55

Requirements for Exercise of the Power under s 73(5) - paragraph 58

Is Contempt of the Tribunal Alleged? - paragraph 63

Has the Respondent been Afforded the Opportunity of Showing Why there should be No Referral? - paragraph 72

The Discretion to Refer under Section 73(5) - paragraph 75

The Legal Context - paragraph 77

The Purpose for which the Discretion was Conferred - paragraph 93

The Factual Circumstances - paragraph 94

The Parties’ Submissions on the Exercise of the Discretion

The Applicant’s Submissions - paragraph 101

The Respondent’s Submissions - paragraph 107

Discretion to Refer – Consideration - paragraph 120

Orders - paragraph 167

REASONS FOR DECISION

Introduction

1. This matter concerns an application by Mr Burns, the applicant, that the Tribunal refer the matter of an alleged contempt of the Tribunal by Ms Corbett, the respondent, to the Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) for determination.

2. For the reasons that follow, the Tribunal has decided to dismiss the application.

3. This application is made in proceedings between the applicant and the respondent in this Tribunal and its predecessor, the Administrative Decisions Tribunal (ADT). In addition, there are also related proceedings in the Supreme Court. In order to understand the somewhat complicated history of proceedings and the issues that arise in this application, it is appropriate to give a more detailed account than usual of what has occurred to date in the Tribunal and its predecessor and in the Supreme Court.

Proceedings in the ADT and First NCAT Appeal

4. The proceedings in the Tribunal arise out of the complaint dated 31 January 2013 lodged by the applicant with the Anti-Discrimination Board (the ADB), in which he alleged that the respondent had unlawfully vilified homosexual persons by comments which were initially published on 22 January 2013 on the front page of a Victorian newspaper, The Hamilton Spectator. Subsequently, the story was published more widely in other newspapers and on the internet. The respondent was the endorsed candidate of the Katter’s Australian Party for the federal electorate of Wannan. Hamilton is a town in regional Victoria about 4 hours’ drive from Melbourne and is in the federal electorate of Wannan.

5. By letter dated 23 April 2013, the President of the ADB referred the complaint to the ADT, apparently under s 93C of the Anti-Discrimination Act 1977 (NSW) (the AD Act), stating that, in his opinion, the complaint could not be resolved by conciliation and enclosing his report, under s 94A of the AD Act, relating to the complaint. The President of the ADB named both the respondent and Katter’s Australian Party as respondents.

6. The ADT conducted a case conference on 29 May 2013 at which neither the respondent nor Katter’s Australian Party appeared. Nonetheless, in the light of correspondence received from the Party’s executive, Katter’s Australian Party was removed as a respondent by order of the ADT. A number of case conferences were subsequently conducted at which the respondent did not appear despite the efforts made by the Registrar to contact her by mail informing her of the directions and orders made. The complaint was listed for hearing on 3 October 2013.

7. On 3 October 2013, the respondent did not appear at the hearing. There was, however, evidence that the correspondence sent by the Tribunal had been received by the respondent personally. On this basis, the ADT held that it was appropriate to proceed to hear and determine the complaint in her absence: Burns v Corbett [2013] NSWADT 227 at [14]. At that hearing, the ADT dealt with both liability and remedies.

8. On 15 October 2013, the ADT published its decision and reasons (Burns v Corbett [2013] NSWADT 227). The ADT made the following orders:

1. The complaint of unlawful homosexual vilification is substantiated with regard to statements, reproduced in paragraph [19] of this decision, that were made by the Respondent to the representatives of different newspapers on three occasions during late January 2013.

2. The Respondent is to refrain from conduct contravening section 49ZT of the New South Wales Anti-Discrimination Act 1977.

3. Within twenty-eight (28) days of the date of this decision, the Respondent is to procure, at her expense, the publication of the following apology in a reasonably prominent position in the Sydney Morning Herald:

This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 15 October 2013.

On three occasions during late January 2013, I made statements concerning homosexual people to the representatives of different newspapers, and expressly or implicitly authorised the publication of my statements by these newspapers.

On 15 October 2013, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexual people in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

4. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders.

Mr Garry Burns

PO Box 77

PADDINGTON NSW 2021

Dear Mr Burns

The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 15 October 2013 and entitled Burns v Corbett, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that vilification of homosexual people, as defined in those provisions, is unlawful.

I offer my apologies for that behaviour.

Yours faithfully

Tess Corbett

9. On 12 November 2013, the respondent lodged in the ADT an appeal against the decision. Attached to the ADT notice of appeal form was a document headed “Interlocutory Orders sought by the Applicant” which was expressly referred to on the first page of that form. That document contained, amongst other things, a request for stay of the ADT’s orders in the following terms:

I)   By way of leave a stay of the original decision and the penalties imposed (based on the balance of inconvenience test and the principles applying to injunctive relief) until an appellate decision is reached.

10. It is not clear from the material before the Tribunal on this application whether or not the application for a stay was ever considered by the Appeal Panel of the ADT. Nonetheless, it does not appear that a stay was granted.

11. The respondent’s notice of appeal was also accompanied by a statement of the respondent, signed by her, witnessed by a Justice of the Peace and dated 11 November 2013. In that statement, the respondent gave her explanation of why she did not attend the hearing and how she came to appeal and gave some evidence as to the 22 January 2013 newspaper interview. In the last paragraph (paragraph 25) she said “If the Tribunal will allow me I would like to give evidence about my comments in January 2013. …”.

12. The appeal did not come on for hearing before 1 January 2014, when the ADT was abolished by cl 3 of Sch 1 to the Act and the Civil and Administrative Tribunal of New South Wales was created by operation of s 7 of the Act.

13. In the light of the transitional provisions found in cll 6-14 of Sch 1 to the Act, this appeal was “unheard proceedings in an existing tribunal” within the meaning of cl 7(1) and, thus, was taken to have been duly commenced in NCAT and could be heard and determined by this Tribunal. Under cl 7(3), NCAT had and could exercise all the functions of the ADT and, further, the provisions of any Act, statutory rule or other law that would have applied to or in respect of the appeal, had the NCAT legislation not been enacted, continued to apply.

14. The Appeal Panel of NCAT heard the appeal on 30 April 2014 and published its decision and reasons on 14 August 2014: Corbett v Burns [2014] NSWCATAP 42. In its decision, it made orders as follows::

1.   The application for the appeal to extend to the merits of the Tribunal’s decision is refused

2.   The appeal is dismissed.

15. Consequently, the orders originally made by the ADT were left undisturbed. As the ADT had been abolished by this time, the transitional provisions concerning orders made by previously existing tribunals are applicable. In this regard, cl 14 of Sch 1 to the Act provides:

14   Orders of existing tribunals

(1)  An existing order of an existing tribunal made under other legislation is taken, on and from the establishment day [I January 2014], to be an order made by NCAT under the corresponding provision of that legislation (as amended by a relevant amending Act) or this Act (as the case may be).

(2)  This clause is subject to the other provisions of this Schedule.

(3)  In this clause:

existing order of an existing tribunal is an order made by the tribunal before the establishment day, and includes an order that would have come into effect on or after the establishment day.

16. Accordingly, the orders made by the ADT on 15 October 2013 are taken, after 1 January 2014, to be orders made by NCAT under the AD Act.

17. On 27 August 2014, for the purpose of enforcing the orders made by the ADT on 15 October 2013, the applicant requested the Registrar of the Tribunal to issue a certificate under s 114 of the AD Act. That section of the AD Act relevantly provides:

114   Enforcement of non-monetary orders

(1)  This section applies to an order, or part of an order, of the Tribunal other than an order, or part of an order, for the recovery of an amount ordered to be paid by the Tribunal or a civil or other penalty ordered to be paid by the Tribunal.

(2)  For the purpose of enforcing an order, or part of an order, to which this section applies, a registrar of the Tribunal may certify the making of the order, or part, and its terms.

(3)  A certificate of a registrar of the Tribunal under this section that is filed in the registry of the Supreme Court operates as a judgment of that Court.

…

18. On 29 August 2014, the Divisional Registrar of the Administrative and Equal Opportunity Division of the Tribunal issued a certificate under s 114 of the AD Act in the following terms:

I certify that on 15 October 2013 the Administrative Decisions Tribunal made the following order:

[the Divisional Registrar then set out verbatim orders 3 and 4 made by the ADT on 15 October 2013 except that those orders were numbered 1 and 2.]

19. On that same day, the Divisional Registrar provided a copy of the certificate to the applicant and wrote a letter to the respondent informing her that a certificate under s 114 of the AD Act had been issued to the applicant for the purpose of enforcing the orders and enclosed a copy of the certificate with that letter.

Supreme Court Proceedings

20. On about 24 September 2014, the applicant filed the s 114 certificate in the registry of the Supreme Court.

21. On or shortly after 7 October 2014, the applicant received from the Supreme Court a document in the following form:

 

22. It will be noted that there are problems with the form of this judgment. Under the heading “Terms of Judgment/Order” the following, apparently extraneous words are found:

Judgment:

Tess Corbett, First Defendant

Is to give possession to

Gary Burns, Frist Plaintiff

Of the following land ..

23. Further, the document then goes on to state “The Court Orders that:” but what follows is not an order but a recitation of the fact that on 15 October 2013 the ADT made “the following order” together with part of what was contained in the s 114 certificate.

24. The last two lines of order 4 made by the ADT and the last two lines of the version of that order certified by the Tribunal are not included in the Supreme Court’s judgment. Thus, the words that identify who is to be the author of the letter of apology are not included. Further, nowhere in the Supreme Court’s judgment is it specified who are “the Respondent” and “the Applicant” referred to in the orders 1 and 2.

25. It has also been observed by the respondent’s solicitor that, notwithstanding that the applicant is referred to as “Garry Burns” in the body of order 2, he is referred to as “Gary Burns” in the Title of Proceedings and in the fourth line of the judgment.

26. Notwithstanding the defects, the judgment issued on 7 October 2014 is an extant judgment of the Supreme Court in proceedings number 2014/00280109 (the Supreme Court Judgment).

27. Later in October 2014, the applicant sent a copy of the Supreme Court Judgment and the s 114 certificate to Mr M White, the barrister who appeared for the respondent at the hearing of the appeal before the Appeal Panel. On 28 October 2014, the applicant contacted Mr White by email noting, among other things, that he had not heard from either Mr White or the respondent and that he was “seeking legal advice in relation to the filing of a Motion re a contempt Application against your client Ms. Corbett in the Supreme Court of NSW”. Mr White replied by email on the same day to the applicant informing him that, among other things, he could not accept service on behalf of the respondent and that he had not seen the documents to which the applicant referred.

28. The applicant, in his affidavit, says that, on about 5 January 2015, he sent a copy of the Supreme Court Judgment by registered post to the respondent. In support of this, he annexed to his affidavit a copy of an email from Australia Post dated 14 January 2015 which said “Attached is proof of delivery” but the item delivered was not identified. On the following page of the annexure was a signature which was quite similar to that on the respondent’s statement attached to her ADT notice of appeal but nothing else. This evidence, whilst not entirely satisfactory, was not challenged by the respondent at the hearing and we accept, for the purposes of this application, that the applicant sent a copy of the Supreme Court Judgment by registered post to the respondent in early 2015 and that she received it.

29. At some time prior to 23 February 2015, the applicant engaged K&L Gates, solicitors, to act for him in Supreme Court proceedings 2014/00280109 (the Supreme Court Proceedings).

30. On 23 February 2015, an application was made to the Supreme Court seeking orders correcting the defects (identified above) in the Supreme Court Judgment and requiring compliance with the orders “within 28 days of the date of these [the new, corrected Supreme Court] Orders”, since the original date for compliance specified in the ADT’s orders had, by that time, passed. The proposed corrections and changes were set out in a draft document headed “ORDER” with most of the deletions and additions marked up (the Draft Corrected Supreme Court Order). On 23 February 2015, Hall J stayed the application and listed the matter for directions on 9 March 2015.

31. On 26 February 2015, the applicant’s solicitors sent an email and a letter to the respondent. The email noted that there was a directions hearing in the Supreme Court Proceedings at 9 am on 9 March 2015. In the letter, the applicant’s solicitors referred to the ADT’s orders, the unsuccessful appeal, the issue of the s 114 certificate, the service of the Supreme Court Judgment in early 2015 and their instructions that there had not been compliance with the ADT orders. The letter enclosed a further copy of the Supreme Court Judgment by way of service and then referred to the directions hearings on 23 February 2015 and 9 March 2015. A copy of the Draft Corrected Supreme Court Order was also enclosed with the letter. The letter went on to state, in part:

If you consent to the Draft Orders:

(a)   please contact us immediately so that we may prepare consent orders to hand up to the Court at the upcoming Directions Hearing; and

(b)   we will “mention” your appearance at the Directions Hearing so that there will be no need for you to attend in person.

If you comply with the terms of the ADT Order before the Directions Hearing, or advise us in writing that you undertake to do so within 28 days of the date of this letter (we are willing to negotiate an alternative compliance date with you), we will seek to stay the application to the Supreme Court and vacate the Directions Hearing, pending compliance with the ADT Orders.

In the event that you fail to comply with the terms of the ADT Orders as requested above, we reserve our right to seek costs from you in pursuing your compliance with the Supreme Court Order. Our client also reserved his right to enforce the ADT Orders through alternative means, including making an application to NCAT under s 73 of the Civil and Administrative Tribunal Act 2013 (NSW) for contempt of an NCAT Order. In this regard, we enclose and serve upon you a copy of the NCAT certificate.

32. The letter and its enclosures were personally served on the respondent on 7 March 2015 by being placed in front of her at her address because she refused to take receipt of the letter and enclosures.

33. At the directions hearing on 9 March 2015, the respondent did not appear. Since the letter of 26 February 2015 had only been served on 7 March 2015, the matter was stood over for further directions on 16 March 2015.

34. The applicant’s solicitors sent by registered post a letter dated 9 March 2015 to the respondent informing her of what had occurred on 9 March 2015 and of the directions hearing on 16 March 2015. This letter was returned to the solicitors and the envelope was marked “Customer refused asked that I return to sender”.

35. On 16 March 2015, the respondent did not appear at the directions hearing and it was rescheduled for 30 March 2015.

36. On 24 March 2015, the applicant’s solicitors sent a letter to the respondent informing her of what had occurred on 16 March 2015 and of the rescheduled directions hearing on 30 March 2015. This letter was returned to the solicitors and the envelope was marked “Customer refused return to Sender”.

37. On 7 April 2015, the applicant’s solicitors again wrote to the respondent noting they had had no responses to their requests and that the letters of 9 March and 24 March 2015 had been returned. They advised that a further directions hearing had been listed on 27 April 2015. The second last paragraph of the letter stated:

As foreshadowed in previous correspondence, we reserve our right to seek costs for you in pursuing your compliance with the Supreme Court Orders. Our client also reserved his right to enforce the ADT Orders by making an application under s 73 of the Civil and Administrative Tribunal Act 2013 (NSW).

38. The letter of 7 April 2015 was also returned to the applicant’s solicitors with the notation on the envelope “Customer accepted & then returned it as refused 10/4/15”.

39. On 27 April 2015, the matter was listed for another directions hearing on 15 June 2015.

Section 73 Application in the Tribunal and Supreme Court Proceedings

40. On 30 April 2015, the applicant’s solicitors filed in the Tribunal an application under s 73 of the Act. This application (the Section 73 Application) is the subject of this decision. The orders sought in the application are:

1.   The Applicant seeks Orders from the New South Wales Civil and Administrative Tribunal (Tribunal) that:

(a)   Pursuant to section 73(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal declare the Respondent guilty of contempt of the Tribunal; and

(b)   Pursuant to s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal refer the matter to the Supreme Court of New South Wales for determination.

41. By letter dated 1 May 2015 to the respondent, the applicant’s solicitors informed her of the further directions hearing on 15 June 2015 and enclosed by way of service the applicant’s Section 73 Application. This letter was returned to the solicitors and the envelope was marked “7/5/15 Refused to Accept”.

42. The applicant’s solicitors sent a further letter dated 28 May 2015 to the respondent enclosing by way of service a further copy of the Section 73 Application. This letter was returned to the solicitors and the envelope was marked “2/6/15 Refused”.

43. On 15 June 2015, the Supreme Court Proceedings were stood over for further directions on 3 August 2015.

44. On 16 June 2015, the Tribunal made directions for the preparation for hearing of the Section 73 Application by the filing of written submissions and evidence and listed the matter for hearing on 17 August 2015 at 10 am.

45. The applicant’s solicitors sent a letter dated 18 June 2015 to the respondent which informed her of the directions made by the Tribunal and the date to which the Supreme Court Proceedings had been stood over. This letter was returned to the solicitors and the envelope was marked “26/6/15 Refused” and “Customer had friend come into get mail. She took this & then had to bring it back ‘cos addressee has refused it”.

46. The applicant’s solicitor sent a letter dated 29 June 2015 to the respondent which informed her that the time for the Tribunal hearing scheduled for 17 August 2015 had been changed from 10 am to 2 pm and that the Tribunal had also sent a letter to her advising of this change. It is not clear from the evidence if this letter was returned to the sender or received by the respondent. The registered tracking number specified in Mr Rodney’s affidavit of 7 July 2015 in respect of this letter (see paragraph 27) is the same as the tracking number for the letter of 28 May 2015 (see paragraph 21). Further, Annexure U to his affidavit (see paragraph 28) is the Australia Post tracking results for registered post and is said to relate to the letter of 29 June 2015. It actually refers to occurrences on dates between 1 and 12 June 2015, which are prior to the letter of 29 June being sent.

Extension of Time to Appeal Application, the Section 73 Application and the Supreme Court Proceedings

47. On 31 July 2015, the respondent filed a notice of appeal form in the Tribunal in which she sought an extension of time to file an internal appeal against the “primary decision in Burns v Corbett [ADT] 131029 made in 2013” and a stay of the orders made on 15 October 2013 by the ADT.

48. At the directions hearing on 3 August 2015 in the Supreme Court Proceedings, both the applicant and respondent were represented by their respective solicitors. As we understand it from the chronology handed up by the applicant at the hearing before us on 17 August 2015, at that directions hearing, the Supreme Court made directions to the following effect (using the description of the parties relevant to this application in the Tribunal, rather than the descriptions in the Supreme Court Proceedings):

1. Upon the respondent’s solicitor giving an undertaking to pay the filing fee, leave was granted to file in Court a notice of motion.

2. The respondent was to file and serve any affidavit in support of the notice of motion by 4 August 2015.

3. The applicant was to file and serve any affidavit responding to the notice of motion by 11 August 2015.

4. The matter was stood over until 14 August 2015, with the possibility of a referral to the Duty Judge.

5. Liberty to restore on 3 days’ notice.

49. As the Tribunal understands it, the respondent’s notice of motion referred to in those directions sought orders staying the Supreme Court Judgment.

50. On 12 August 2015, the Appeal Panel of the Tribunal heard the application for an extension of time in which to appeal and the stay application. On that occasion, an application in relation to the correct identification of the first name of the applicant was also pressed by the respondent. The Appeal Panel reserved its decision.

51. On 14 August 2015, in the Supreme Court Proceedings, the Supreme Court made orders by consent to the following effect (once again using the description of the parties relevant to this application in the Tribunal, rather than the descriptions in the Supreme Court Proceedings):

On the basis of the applicant undertaking to the Court not to take any steps to enforce the judgment or order of the Supreme Court dated 14 September 2014 (that is, the Supreme Court Judgment) until 4 pm on the day on which the Tribunal delivered its reserved decision:

1. The proceedings were stood over to 11 September 2015.

2. No order as to costs.

52. Shortly before the hearing in this matter on 17 August 2015, the Appeal Panel dismissed the respondent’s applications for an extension of time in which to appeal (for a second time) against the ADT’s 2013 decision and dismissed the application for a stay of the ADT’s orders. The Panel’s reasons for decision were published at that time: Corbett v Burns [2015] NSWCATAP 172.

The Present Section 73 Application

53. As noted above, the applicant originally sought orders under both s 73(2) and (5) of the Act in his application filed on 30 April 2015. In his written submissions, however, the applicant indicated that he no longer seeks a declaration under s 73(2) that the respondent is guilty of contempt.

54. Accordingly, the only order now sought is that the Tribunal refer the matter of the respondent’s alleged contempt to the Supreme Court for determination under s 73(5).

Relevant Legislative Provisions

55. Section 73 of the Act sets out, among other things, how the Tribunal may deal with alleged or apparent contempt. It provides as follows:

73   Contempt of Tribunal

(1)  The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

Note. Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

(2)  A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

(3)  Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

(4)  For the purposes of this section:

(a)  sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

(b)  a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

(c)  section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.

Note. Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

(5)  Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

(6)  The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

56. The nature of the Tribunal’s jurisdiction when deciding whether to refer a matter under s 73(5) is specified in s 33 of the Act which provides:

33   Enforcement jurisdiction of Tribunal

(1)  The enforcement jurisdiction of the Tribunal is comprised of:

(a)  the functions of the Tribunal when dealing with an alleged or apparent contempt of the Tribunal, and

(b)  the functions of the Tribunal when dealing with an application under section 77 for a contravention of a civil penalty provision of this Act.

Note. The functions of the Tribunal relating to the imposition of civil penalties under legislation other than this Act fall within the general jurisdiction, and not the enforcement jurisdiction, of the Tribunal. The enforcement jurisdiction of the Tribunal extends only to proceedings for a civil penalty under this Act.

The Tribunal must observe the rules of evidence when exercising its enforcement jurisdiction. See section 38 (3).

(2)  The Tribunal also has the following jurisdiction in proceedings for the exercise of its enforcement jurisdiction:

(a)  the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b)  the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act in connection with the conduct or resolution of such proceedings.

57. It may be noted that the internal appeal jurisdiction of the Tribunal does not extend to any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction: the Act, s 32(3). This result also follows from s 32(1) of the Act.

Requirements for Exercise of the Power under s 73(5)

58. Subsections (5) and (6) of s 73 of the Act are in very similar terms to s 203 of the District Court Act 1973 (NSW) which states:

203   Power to refer allegation etc of contempt to Supreme Court

(1)  Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination.

(2)  On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate.

59. The Court of Appeal considered what was required in order for the power in s 203 to be exercised in Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 and Mahoney JA held at 469:

for that power [the power to refer under s 203] to be exercised, it must first be alleged or appear to the court that a person is guilty of contempt of court; then the judge must ordinarily afford to the person in question the opportunity of showing why, in the exercise of s 203, the judge should not refer the matter to the Supreme Court for determination. Thirdly, the judge may, in the exercise of the discretion given by s 203, then refer the matter to the Supreme Court for determination.

60. Having regard to the similarity of wording between ss 73(5) and (6) of the Act and s 203 of the District Court Act, the similarity of the circumstances in which those two sections fall to be applied and their similarity of purpose, the Tribunal is of the view that the approach set out in Maniam should be applied by the Tribunal in a case of an application for reference under s 73(5).

61. Accordingly, if:

1. it is alleged, or appears to the Tribunal, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not); and

2. the person alleged or appearing to be in contempt has been afforded the opportunity of showing why the matter should not be referred; then

3. the Tribunal may, in the exercise of the discretion given by s 73(5), refer the matter to the Supreme Court for determination.

62. Each of these issues will be addressed in turn.

Is Contempt of the Tribunal Alleged?

63. In his application filed on 30 April 2015 (paragraph 1 under the heading “Grounds for Application”), the applicant alleges that “[t]he Respondent has intentionally disobeyed Orders 3 and 4 of the NSW Administrative Decisions Tribunal made on 15 October 2013 (ADT Orders). By operation of s 73(2) of the NCAT Act the Respondent has, without reasonable excuse, committed contempt of the Tribunal.”

64. In further elaboration of this allegation, the applicant, in paragraph 6 of his application, alleges that:

6.   Despite:

(a)   The ADT Orders having been validly made;

(b)   The Respondent having full knowledge and awareness of the terms of the ADT Orders both before and after the expiry of the time limit mandated by Orders 3 and 4;

(c)   The terms of the ADT Orders being clear, unambiguous and capable of compliance; and

(d)   Repeated attempts by the Applicant to contact the Respondent to ascertain the Respondent’s position with respect of compliance with ADT Orders 3 and 4,

the Respondent has intentionally disobeyed (and breached) Orders of the Tribunal and thereby, without reasonable excuse, committed contempt of the Tribunal.

65. It is well established that a contempt of court can be constituted by a breach of, or a failure to comply with, an order of the court: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106, Witham v Holloway (1995) 183 CLR 525 at 530. Subsections 73(2) and (5) do not distinguish between civil and criminal contempt. As a result, it is not necessary for present purposes to consider whether and how the distinction between criminal and civil contempt might apply to the alleged failure to comply with the ADT’s orders in the present case. Nonetheless, as Mudginberri Station establishes, a fine may be imposed in a case of contempt constituted by failure to comply with an order of a court if the failure to comply was wilful in the sense that the failure was not casual, accidental or unintentional.

66. It also the case that “[i]f the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done”: Iberian Trust Limited v Founders Trust Limited [1932] 2 KB 87 at 95; Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 515 - 516 (see also at 506).

67. Section 73(2) of the Act (quoted above) establishes that a person will be guilty of contempt of the Tribunal if the person does, or omits to do, any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court. It also contains a qualification upon that general proposition: “unless the person establishes that there was a reasonable excuse for the act or omission”. It appears to us that this qualification constitutes a defence to a charge of contempt and, if it is to be relied upon, the alleged contemnor must establish the existence of the reasonable excuse. It is not an element of the charge of contempt which must be negatived by the person prosecuting the contempt.

68. It follows from these principles and from the terms of s 73(2) that the following may amount to a contempt of the Tribunal:

1. a failure to comply with an order of the Tribunal;

2. where

3. the person bound by the order had knowledge of it;

4. the failure was wilful, in the sense of not being casual, accidental or unintentional; and

5. the order directed in unambiguous terms what was to be done.

69. The allegations made by the applicant in the present case cover each of these elements.

70. Furthermore, even if we are wrong as to the effect of the qualification in s 73(5) (“unless the person establishes that there was a reasonable excuse for the act or omission”), the applicant has alleged that the respondent failed to comply with the orders “without reasonable excuse” and the circumstances detailed in paragraph 6 of his application can be seen as supporting this allegation.

71. Consequently, we are satisfied that there is an alleged contempt of the Tribunal. Hence, the first requirement of s 73(5) has been met in this case.

Has the Respondent been Afforded the Opportunity of Showing Why there should be No Referral?

72. In Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459, Kirby P commented on what was required in order to afford a person in the position of the respondent an opportunity to showing why the alleged contempt should not be referred. At 465, the President said:

If an opportunity is provided to make submissions concerning reference to the Supreme Court, it should be limited strictly to the issue of reference.

73. An oral hearing on the question of whether the application for referral should be granted took place on 17 August 2015. Both parties were represented by solicitors and submissions, both written and oral, were received on the question of reference. In accordance with Kirby P’s approach, the respondent was not required to, and did not give, any evidence as to the circumstances relating to the alleged contempt.

74. The Tribunal is satisfied that a sufficient and appropriate opportunity was afforded the respondent to show why the alleged contempt should not be referred. Thus, the second requirement identified in Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 has been satisfied.

The Discretion to Refer under Section 73(5)

75. The Tribunal now turns to consider whether, in its discretion, it should refer the alleged contempt to the Supreme Court for determination.

76. Although the discretion is unfettered by express statutory restrictions, it must be exercised judicially, having regard to the legal context in which it falls to be exercised, the purpose for which such a discretion is conferred and the factual circumstances of the case.

The Legal Context

77. The legal context in which the present matter arises includes not only the enforcement provision of the Act, found in Pt 5, but also the provisions of the AD Act which relate to compliance with, and enforcement of, orders made under that Act, such as those sought to be enforced in the present case. The relevant provisions of the AD Act include ss 108-116, found in Pt 9, Div 3.

78. Part 5 of the Civil and Administrative Tribunal Act is headed “Enforcement” and consists of ss 71 to 78. The sections which deal with the enforcement of, and compliance with, orders of the Tribunal that may be of relevance in the present case include:

1. sections 72(1), 75 and 76, which relate to the offence of contravening a “designated order of the Tribunal” which expression is defined in s 72(2)(b) as including an order made under s 108(2)(b), (c), (d) or (e) of the AD Act. Section 108(2)(d) expressly permits the Tribunal to order the publication of apologies or retractions. It may be argued, however, that these provisions apply only to contraventions of orders occurring after the Act came into effect on 1 January 2014. Orders 3 and 4 of the ADT made on 15 October 2013 required compliance within 28 days of the orders being made and thus any non-compliance or contravention can be seen as having occurred before 1 January 2014. Consequently, ss 72, 75 and 76 may not be relevant for present purposes;

2. section 73 which deals with contempt and has been set out in full above.

79. Division 3 of Pt 9 of the Anti-Discrimination Act also provides a number of alternative means of enforcement of orders 3 and 4.

80. First, s 108(7) provides (and provided at all times between 15 October 2013 and the present) that:

(7)  If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

81. Gardiner v Aquasun Pty Ltd trading as Asher Coastwise Real Estate (No 3) [2006] NSWADT 196 is an example of damages “by way of compensation for failure to comply with the order” being awarded under s 108(7) against a person who has failed to comply with an order made under s 108(2)(c) of the AD Act (see in particular the reasons for decision at [60] to [66]). Such a claim could have been made by the applicant in the present case, to the extent that orders 3 and 4 were made under the relevant subsections and had not been complied with.

82. Secondly, s 111 of the AD Act (as in force at 15 October 2013 and before its repeal on 1 January 2014 by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW)) provided that:

111   Compliance with order of Tribunal

A person must not refuse or neglect, or for any other reason fail to obey or comply with, an order under section 108 (2) (b), (c), (d) or (e), or an interim order, of the Tribunal.

Maximum penalty: 50 penalty units, in the case of a corporation, or 10 penalty units in any other case.

83. Since orders 3 and 4 were required to be complied with within 28 days of the date of the making of the orders on 15 October 2013, any non-compliance would have occurred before 1 January 2014. Accordingly, an offence under s 111 may have been committed. Prosecution for that offence might, therefore, be a further alternative means of enforcing compliance with those orders.

84. Thirdly, with a complainant’s consent, the President of the ADB is empowered, under s 113(a) of the AD Act, to take steps to enforce an order of the Tribunal in certain circumstances. Section 113 provided at 15 October 2013, and still provides, in part, as follows:

113   Enforcement of orders by the President

If the President believes it is in the public interest to do so, the President may:

(a)  in the case of an individual complaint, take steps to enforce an order of the Tribunal on behalf of the complainant, with the complainant’s consent, …

85. Section 113 may, accordingly, enable the President of the ADB to bring proceedings under s 111 on behalf of a successful complainant.

86. Fourthly, under s 114 of the AD Act, persons who have obtained orders of the Tribunal in their favour under the AD Act can obtain a certificate from a registrar of the Tribunal certifying the making of the orders. If that certificate is filed in the registry of the Supreme Court, it operates as a judgment of that Court. Subsections 114(1), (2) and (3) of the AD Act in their present form have been quoted in full above. In the form applicable between 15 October 2013 and 1 January 2014 those subsections were in substance the same. The only difference was that in subss 114(2) and (3), in place of the current words “a registrar of the Tribunal”, there appeared “the Registrar” (which was defined as meaning the Registrar of the ADT). Accordingly, for the purpose of enforcing an order made by the ADT, or the Tribunal after 1 January 2014, the relevant registrar could have certified the making of the order and, on filing in the registry of the Supreme Court, the certificate would operate as a Supreme Court judgment.

87. As noted above, this procedure under s 114 is the enforcement process invoked by the applicant in August and September 2014 which led to the issue of the Supreme Court Judgment in the Supreme Court Proceedings.

88. Finally, it should be noted that s 116 of the AD Act in its current form provides that the provisions of Division 3 of the AD Act (which includes all of the provisions referred to above) apply in addition to the provisions of the Civil and Administrative Tribunal Act. Similarly, s 116 in its form between 15 October 2013 and 1 January 2014 provided that Division 3 applied in addition to the provisions of the Administrative Decisions Tribunal Act 1997 (NSW). In both cases, by express operation of s 116, Division 3 of the AD Act prevails over those other Acts to the extent of any inconsistency.

89. Another aspect of the legal context is the requirement that in all proceedings for contempt, whether civil or criminal, charges of contempt must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534, 548 and 549. The criminal standard will also obviously apply in any prosecution of the offence of non-compliance with tribunal orders under s 111 of the AD Act or s 72 of the Act.

90. In the case of an application under s 108(7) of the AD Act, there is nothing to suggest that the standard of proof would be other than the civil standard, that is, on the balance of probabilities.

91. In summary, the Act and AD Act include a number of alternatives to referral under s 73(5) for enforcement of the Tribunal’s orders in a case such as the present.

92. Since there are alternative means of enforcing orders of the Tribunal made under s 108(2)(d) the AD Act, a proper exercise of the discretion under s 73(5) should take into account the availability of these alternatives and whether any of them has been invoked already.

The Purpose for which the Discretion was Conferred

93. Moreover, any exercise of the power under s 73(5) must be consistent with the purpose for which it has been conferred. From the reasoning of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 and also Witham v Holloway (1995) 183 CLR 525 at 532-534, it can be seen that the purpose of referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court to be determined is at least twofold. The first is to have the Tribunal’s orders enforced for the benefit of the applicant who originally obtained those orders. The second is to protect the effective administration of justice by demonstrating that the Tribunal’s orders will be enforced.

The Factual Circumstances

94. The Tribunal is of the view that the significant factual circumstances in the present case include what is set out in the following paragraphs.

95. The applicant led, without objection, evidence that, to his knowledge, no apology had been published in the Sydney Morning Herald as well as some limited hearsay evidence that no apology had been published. He also gave evidence that he had never received a letter of apology as required by order 4. Nothing put by the respondent in submissions was inconsistent with this. In fact, the respondent’s solicitor argued that she had a reasonable excuse for non-compliance rather than suggesting that she had complied. Other material from the respondent indicated that she could not afford to publish an apology in the Sydney Morning Herald and that she believed that it would be contrary to her conscience, her religious principles and her right to free speech to publish what was required. On this basis, it appeared to the Tribunal that the respondent was unwilling to give an apology.

96. Having regard to:

1. this evidence and the submissions of the respondent;

2. the fact that orders 3 and 4 were made by the ADT on 15 October 2013;

3. the fact that those orders were the subject of an appeal by the respondent lodged on 12 November 2013 and thus must have been known to her;

4. the fact that those orders were the subject of a certificate issued under s 114 of the AD Act a copy of which was sent to the respondent by a registrar of the Tribunal,

we are satisfied that there is a reasonably arguable case that the respondent has committed the contempt alleged by the applicant. It certainly could not be concluded that the contempt alleged has such poor prospects of being established on the criminal standard that this would justify not referring the matter to the Supreme Court. That is not to say, however, that the Tribunal has formed any concluded view as to whether the alleged contempt has actually been proved to the requisite standard or as to whether orders 3 and 4 of the ADT were validly made, as alleged by the applicant.

97. The applicant has already taken steps to enforce orders 3 and 4 made by the ADT by having those orders certified under s 114 of the AD Act, by filing the certificate in the Supreme Court and by taking further steps in the Supreme Court Proceedings. It is also significant that those proceedings and the Supreme Court Judgment remain on foot. As a consequence, if the Tribunal decided to refer the alleged contempt to the Supreme Court under s 73(5), there would be two sets of Supreme Court proceedings, with different parties, which the respondent would be required to defend, or participate in, through no choice of hers.

98. The respondent has not cooperated or willingly participated in most aspects of the proceedings, apart from her appeal. In addition to her non-participation in the proceedings in the ADT, she has avoided participating in the Supreme Court Proceedings. She was served with a copy of the Supreme Court Judgment, by it being left with other items of correspondence in her presence, as she refused to accept it. She has failed or refused to accept correspondence from the solicitors for the applicant concerning the Supreme Court Judgment and the Supreme Court Proceedings. It appears, however, that apart from the appeal in which she was represented by counsel, the respondent has not had the benefit of legal representation until her recent retainer of her present solicitors.

99. Both the applicant and the respondent relied, in their submissions, on their lack of financial resources as a factual matter which supported their respective positions. The applicant relied in this regard on paragraph 16 of his affidavit. This paragraph does not establish his impecuniosity, for the reasons which are given in more detail below. Nonetheless, it should be noted that he received pro bono assistance in defending the appeal but that assistance ended following the Appeal Panel’s decision. It is not clear on what basis he is presently being represented by his solicitors, K&L Gates, but Mr Rodney, an employed solicitor with K&L Gates, who swore an affidavit in these proceedings, is the pro bono coordinator for that firm, according to paragraph 1 of his affidavit.

100. The respondent did not adduce any evidence on this application, a course she was entitled to take. The applicant did, however, include in his affidavit the statement of the respondent dated 11 November 2011 which gives some details of the respondent’s financial position and we have no reason not to accept that evidence. It states that she is an aged pensioner receiving about $757 per fortnight and has debts of around $9,000. She could not afford to go to Sydney for the ADT hearing and said that she could not afford to publish an advertisement in the Sydney Moring Herald or pay for lawyers to represent her. The filing fee for the appeal was paid for by donations from others as the respondent could not afford it. Counsel appeared on her behalf at the appeal hearing before the Appeal Panel on a pro bono basis. It is not clear, however, on what basis her present solicitors are engaged.

The Parties’ Submissions on the Exercise of the Discretion

The Applicant’s Submissions

101. The applicant submitted, first, that in the present case, he had no remedy flowing from the ADT’s orders or NCAT’s orders and, consequently, this favoured the alleged contempt being referred to the Supreme Court.

102. Secondly, it was submitted that although the applicant “had attempted to commence proceedings in the Supreme Court of New South Wales to enforce the ADT Orders as Orders of the Supreme Court, the costs of such an application are prohibitive”.

103. Further, it was submitted that there may be “procedural issues as to … whether the ADT Orders are enforceable in the Supreme Court …”. In oral submissions, Mr Sier, solicitor, who appeared for the applicant, also drew attention to the cost of filing fees in the Supreme Court.

104. Thirdly, it was submitted that in the present case the contempt was not “technical” but was intentional and, as such, required the Supreme Court to vindicate both the rights of the applicant and the authority of NCAT.

105. Fourthly, the applicant submitted that if NCAT was not seen to deal with breaches of orders, this would diminish public confidence in its authority and decision making capacity and this would be inconsistent with the object of the Act set out in s 3(g).

106. In addition, the applicant submitted in substance that the respondent had no prospects of establishing that there was a reasonable excuse for the failure to comply. All that was alleged by the respondent was that she could not afford the advertisement and that it was against her conscience and her right to free speech for her to publish what had been ordered. The applicant submitted that such allegations were insufficient to amount to a reasonable excuse.

The Respondent’s Submissions

107. The respondent made submissions concerning referrals under s 73(5) and in particular that subs (5) could not be considered in isolation from the rest of s 73, including s 73(1) and (4)(a) which empower the Tribunal to punish contempt in the face or hearing of the Tribunal with imprisonment. It then appeared to be submitted that this was a reason why the contempt alleged in this case could not or should not be referred by the Tribunal to the Supreme Court.

108. As we understood them, the respondent’s submissions raised issues relating to the treatment by the ADT and the Appeal Panel of the respondent, an unrepresented litigant. The submissions were formulated, in part, on the basis that the ADT itself should have acted as a “Model Litigant” and relied upon the discussion of the obligations of a model litigant in Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 at [71] to [79]. As the very description “Model Litigant” demonstrates, however, that concept is not applicable to the ADT or to the Tribunal. These tribunals are correctly characterised as decision making bodies before which litigants appear. In this context, the Tribunal is not a litigant and the model litigant obligations do not apply to it as such. The Victorian Supreme Court’s decision in Comaz does not suggest that the tribunal in that case, VCAT, was to be treated as a model litigant.

109. The respondent’s submissions also relied, as we understood them, upon the discussion in Comaz (Aust) Pty Ltd v Commissioner of State Revenue of the duties owed by VCAT to accord procedural fairness to an unrepresented litigant. In oral submissions, Mr Balzola, solicitor, who appeared for the respondent, raised the issue of procedural fairness affecting the ADT proceedings and, possibly, the Appeal Panel’s appeal. Consequently, the Tribunal will proceed on the basis that the substance of these submissions raised issues of failure to afford procedural fairness rather than failure to comply with any model litigant obligations.

110. The respondent did not elaborate extensively on which specific aspects of procedural fairness she relied upon beyond referring to the decision in Comaz. We note that, in Comaz, it was held at [42] that VCAT’s failure to warn an unrepresented litigant of the possible inference that might be drawn, in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298, where a witness who could give highly relevant evidence was not called by the litigant “amounted to a very significant denial of procedural fairness”. In addition, the Court gave a comprehensive review of the duties of a judge or a tribunal to assist unrepresented litigants at [62] to [67]. The Tribunal understands that the respondent intended to submit that these aspects of Comaz dealing with VCAT’s duties to unrepresented litigants were relevant to the respondent’s circumstances. The respondent did not draw out in any detail the consequence of a failure to accord procedural fairness but we accept that the consequences might include the nullity or setting aside of the ADT’s orders.

111. Although the respondent appeared to place considerable emphasis on the decision in Comaz, it can be noted here that the decision does not deal with the situation of a litigant in person who fails or refuses to appear at a hearing after being given notice of the hearing.

112. A further contention raised by the respondent was that she could not afford to pay for an advertisement in the Sydney Morning Herald and that it was against her conscience, her religious principles and her right to free speech for her to publish what had been ordered. Although it was not clear, it may have been submitted that the ADT should not have made orders requiring such an advertisement without giving the respondent an opportunity to make submissions on the form of any remedies to be ordered and her ability to comply. If such an opportunity had been given, the respondent could have made submissions as to why orders such as orders 3 and 4 should not have been made. It appeared to be suggested that this might also amount to a denial of procedural fairness in respect of the making of the ADT’s orders.

113. In addition, it was submitted that the respondent had, or would argue that she had, a reasonable excuse for non-compliance. As the Tribunal understood it, the substance of the submission was that the respondent had a reasonable excuse because of mistake as to her obligation to comply with Tribunal orders. This mistake was said to arise because the orders were made by a New South Wales tribunal and yet the respondent lived, and engaged in conduct, only in Victoria. It was said that she misunderstood the legal position.

114. In the oral submissions, the respondent also raised “jurisdictional issues” which were intended, as we understood it, to refer to whether the ADT did in fact have jurisdiction to deal with the complaint in this case. One aspect of these jurisdictional issues appeared to us to be the contention that the relevant “public acts” occurred in Victoria and not in New South Wales and the respondent lived in Victoria. It may be, however, that the submissions were intended to raise the wider question of jurisdictional error by the ADT or by the Appeal Panel in the appeal heard in 2014.

115. In addition, the implied freedom of political debate was referred to and we understood this was an attempt to raise, in relation to the ADT proceedings and the 2014 Appeal, whether s 49ZT of the AD Act contravened the implied constitutional protection for freedom of communication about government and political matters or, in the alternative, whether s 49ZT should be read down so as not to infringe the constitutional protection.

116. The respondent’s oral submissions also referred to “public interest matters” and “statements made in a religious context”. Once again, as we understood it, this was an attempt to raise the question of whether the ADT or the Appeal Panel or both made errors of law in the application of s 49ZT(2) in the present case.

117. The respondent also submitted, in substance, that the matter of alleged contempt should not, at this stage, be referred under s 73(5) because of the existing Supreme Court Proceedings, which should be resolved first.

118. Another reason for not referring the matter at this stage was said to be that “the combination of pending determination in the landmark prospective decision in Burns v Gaynor [1410372] will clarify the long standing debate as to the application of New South Wales law upon a domicile outside the territory of Australia”.

119. Whilst we are not entirely certain as to the full import of all of the respondent’s submissions, it was made plain that the respondent wishes to challenge the decision of the ADT made on 15 October 2013 and the Appeal Panel’s decision in the 2014 appeal. It was not clearly articulated whether the respondent proposed to do so by an appeal to the Supreme Court (which would require leave under s 83(1) of the Act), by an application for orders under s 69 of the Supreme Court Act 1970 (NSW), by an application for declarations that the decisions of the ADT and the Appeal Panel are void or by some other means.

Discretion to Refer – Consideration

120. As to the nature of the power under s 73(5), the Tribunal accepts that s 73(5) must be construed in the light of the section as a whole and having regard to the text, scope and purpose of the Act. It does not follow from this that, as we understood the respondent to submit, an alleged contempt that is not contempt in the face or hearing of the Tribunal cannot or should not be referred for determination under s 73(5). The Tribunal’s power to order imprisonment in the case of contempt in the face or hearing of the Tribunal, arising under s 73(1) and (4)(a) when read with s 199 of the District Court Act 1973 (NSW), does not have the effect of restricting or inhibiting the Tribunal’s power to refer alleged or apparent contempt (whether committed in the face or hearing of the Tribunal or not) to the Supreme Court under s 73(5).

121. As the review of the legislative options for enforcing compliance set out above demonstrates, the AD Act establishes a number of potential ways in which orders made under s 108(2) of that Act in 2013, and which were required to be complied with in 2013, might be enforced:

1. Damages by way of compensation for failure to comply with such an order: s 108(7);

2. Prosecution for failure to comply with such an order: s 111;

3. Certification by the relevant registrar and filing of the order in the Supreme Court so that the order becomes a judgment of the Supreme Court: s 114.

122. The Tribunal notes that damages under s 108(7) and prosecution under s 111 do not apply to all orders made under s 108(2) but only those made under subs (2)(b), (c), (d) or (e). Publication of an apology may be ordered under s 108(2)(d) and it has been held in other jurisdictions that private and public apologies may be ordered under provisions equivalent to s 108(2)(c): see for example, Ma Bik Yung v Ko Chuen [2002] 2 HKLRD 1 (a decision of the Court of Final Appeal of Hong Kong (which included Sir Anthony Mason AC KBE GBM) in relation to legislation which is substantially similar to Australian anti-discrimination legislation) and Falun Dafa Association of Victoria Inc. v Melbourne City Council [2004] VCAT 625.

123. The range of enforcement mechanisms identified above which are specific to orders made under the AD Act suggests that the legislative scheme of that Act envisages that orders made in anti-discrimination matters should generally be enforced using the mechanisms in the AD Act, rather than by having to rely upon the general enforcement provisions of the legislation constituting the tribunal in question. This conclusion is reinforced by s 116 of the AD Act which provides, and provided, that those AD Act enforcement provisions, among others, apply in addition to the provisions of the Civil and Administrative Tribunal Act or the Administrative Decisions Tribunal Act, whichever is applicable, and prevail over them to the extent of any inconsistency.

124. If this general approach is correct, orders under s 108(2)(d) in anti-discrimination matters should usually be enforced using ss 108(7), 111 or 114 of the AD Act, unless there is some reason based on principle or practicality why this should not or cannot be done. Referring an alleged contempt based on non-compliance with such orders to the Supreme Court under s 73(5) of the Act should not be seen as the usual or preferred method of enforcement of such orders, although it clearly remains available in an appropriate case.

125. This approach is consistent with what the Tribunal decided in Burns v Sunol (No 2) [2014] NSWCATAD 126. In that case, there were orders made under s 108(2)(b) of the AD Act which had not been complied with and the Tribunal ordered that damages should be paid by way of compensation for non-compliance, under s 108(7) of the AD Act. The fact that this remedy was available and had been invoked was held to be a reason why an application to refer the matter under s 73(5) should be refused. The Tribunal said at [59]:

… As Mr Burns has a remedy for Mr Sunol's non-compliance with the Tribunal's orders, all of which are now orders for damages to be paid, we do not propose to refer the matter to the Supreme Court for determination [of whether the failure to comply with the orders constituted a contempt].

126. The AD Act, as it applied before and after the commencement of the NCAT legislation, and the transitional provisions in Sch 1 to the Act, which are all referred to above, have the effect that the enforcement procedures under the AD Act were available in respect of orders 3 and 4 made by the ADT prior to 1 January 2014 and continued to be available (in a slightly altered form) after 1 January 2014 and the establishment of NCAT. Neither party submitted that this was not the case.

127. Consequently, it is not correct to say that the applicant has no remedy flowing from the ADT orders or the Appeal Panel’s decision and the respondent’s alleged non-compliance. He could seek an order under s 108(7) of the AD Act. In addition, the President of the Anti-Discrimination Board could be requested under s 113 to prosecute under s 111 of that Act. More significantly, perhaps, the applicant has already invoked the procedure available under s 114 of the AD Act. As noted above, he obtained from a registrar of the Tribunal in August 2014 a certificate under s 114(2) of the AD Act certifying the making of orders 3 and 4 by the ADT on 15 October 2013. This certificate he then filed in the Supreme Court registry. This gave rise to the Supreme Court Proceedings and the Supreme Court Judgment referred to above.

128. The applicant says, in this regard, that although he “had attempted to commence proceedings in the Supreme Court of New South Wales to enforce the ADT Orders as Orders of the Supreme Court, the costs of such an application are prohibitive”. In support, he relies upon paragraph 16 of his affidavit which states:

At present, it is financially impractical for me to enforce the ADT Orders in the Supreme Court of New South Wales. I would prefer not to disclose my financial position as I fear this information would prejudice me in other proceedings that I have before NCAT. I would prefer to address the Respondent’s failure to comply with the ADT Orders, by way of the present application.

129. There is no evidence before the Tribunal as to the nature of the application in the Supreme Court referred to in that submission. It might refer to the steps necessary to have the Supreme Court Judgment corrected so as properly to reflect the certified order of the ADT. Even if it did refer to that aspect of the matter, it is not clear what the nature and extent of any costs that might be incurred in relation to those steps might be. No evidence was provided as to the likely cost of those steps or the costs of any other application. Although in oral submissions the cost of a filing fee in the Supreme Court was mentioned, it was not explained exactly how this might arise at this stage of proceedings. Finally, paragraph 16 of the applicant’s affidavit provides no information whatsoever as to his financial position. Essentially, all the Tribunal is informed of is the applicant’s preferences. The issues and fears which he raises could have been addressed by appropriately limited non-disclosure orders of the Tribunal. The applicant has been legally represented on this application and thus the failure to provide information relevant to this submission cannot be attributed to his being an unrepresented litigant. The applicant has not disclosed whether his legal representation is on a pro bono basis or otherwise.

130. In these circumstances, the Tribunal does not accept the applicant’s submission that the costs of continuing to seek to enforce the ADT’s orders by the means the applicant has chosen are prohibitive so as to justify or support the Tribunal’s deciding to refer the alleged non-compliance with those orders to the Supreme Court to be determined in contempt proceedings.

131. The applicant’s written submissions then raised a further issue concerning enforcement under s 114 of the AD Act in the present case. It was submitted:

As a matter of law, it may also be the case that there are procedural issues as to whether the ADT Orders are enforceable in the Supreme Court exist [sic]. In particular, it is unclear whether the Supreme Court could enforce the ADT Orders when the enforcement may not be able to practically comply with the rules of enforcement made by a Court.

132. The Tribunal is not clear what precisely the applicant intended to convey by this submission. Nonetheless, the Supreme Court Judgment is an extant judgment of the Court. To the extent that there are difficulties with its form, the Tribunal has no doubt that these formal matters can be addressed by the Court. There is no reason to believe on the material before the Tribunal that the Court could not deal with any procedural difficulties so as to ensure that its judgment was complied with or non-compliance was appropriately dealt with.

133. Consequently, the Tribunal does not accept that there are such procedural issues or enforcement problems which would prevent the Supreme Court from dealing appropriately with the Supreme Court Judgment as would justify referring non-compliance with the ADT’s orders to the Supreme Court to be determined by that Court in separate contempt proceedings.

134. As to the submission that the contempt alleged by the applicant is not a technical contempt but was intentional and the situation requires that the Supreme Court vindicate both the rights of the applicant and the authority of NCAT, the Tribunal accepts that the non-compliance was alleged to be intentional and with full knowledge and awareness of the terms of the orders. Consequently, the contempt, as alleged, would not normally be characterised as technical. It does not follow, however, that this situation requires the alleged contempt to be referred under s 73(5) so that the Supreme Court can vindicate the applicant’s rights and NCAT’s authority.

135. That vindication could be achieved by the orders being enforced through the s 114 procedure already embarked upon by the applicant. It could also be achieved, if that were required, by the other means which might be available under ss 108(7) or 111 of the AD Act.

136. Similarly, a referral under s 73(5) of the Act is neither necessary nor appropriate, in order for the Tribunal to act consistently with the object stated in s 3(g) of the Act, namely “to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members”, when the s 114 procedure has been invoked and where other, perhaps more appropriate, means of enforcement are available.

137. Indeed, given the nature of the orders in question, the standard of proof required to satisfy the requirements of s 108(7) and the requirement that the Tribunal resolve the real issues in the proceedings justly, quickly, cheaply and with as little formality as possible, the remedy available under s 108(7) of the AD Act might have been thought to be particularly apposite, if enforcement under s 114 had not been embarked upon.

138. The applicant also submitted that the respondent had no prospects of establishing that there was a reasonable excuse for her failure to comply. The Tribunal accepts that it is reasonably arguable that the matters relied by the respondent in this regard do not amount to a reasonable excuse for non-compliance within s 73(2). Indeed, if it is accepted that the respondent’s grounds for her unwillingness to comply with orders 3 and 4 should be taken into account in a case such as the present, this should occur before the orders are made, rather than being able to be relied upon as a justification for non-compliance after the orders are made.

139. Although there may be some controversy as to whether a person who is unwilling to make an apology can or should be ordered to do so (see, for example, the comments by Hely J in Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at [245]), the ADT has held that there is a distinction between a personal apology and an apology that is an acknowledgement of wrongdoing and a fulfilment of a legal requirement rather than a statement of genuinely held belief. On this basis, it has been held that an unwilling apology can be ordered under the AD Act: Burns v Radio 2UE Sydney Pty Ltd (No 2) [2005] NSWADT 24 at [29] and [30]. The decision of the Court of Final Appeal of Hong Kong in Ma Bik Yung v Ko Chuen [2002] 2 HKLRD 1 also supports the proposition that an apology can be ordered even if the respondent is unwilling to give an apology: at [52] but note [53].

140. Although the matter raised in this submission by the applicant can be seen as a factor weighing in favour of referral, it could not, in the circumstances of this case, be determinative

141. In the Tribunal’s opinion, the matters raised by the applicant in his submissions do not provide a sufficient justification for the Tribunal to refer the alleged contempt to the Supreme Court in the circumstances, especially where the procedure under s 114 of the AD Act has been invoked and the Supreme Court Proceedings and the Supreme Court Judgment remain extant and there are other, perhaps more appropriate, means of enforcement available.

142. Moreover, there are, in the Tribunal’s view, additional reasons why it would be inappropriate to refer the alleged contempt at this time when the Supreme Court Judgment remains extant. These arise out of the different nature and effect of an order of a tribunal compared to a judgment of the Supreme Court.

143. The Supreme Court is a superior court of record. Consequently, its judgments and orders are valid until they are set aside and failure to comply with its judgments and orders whilst they are on foot is a contempt: State of New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [32]; Rumble v Liverpool Plains Shire Council [2015] NSWCA 125 at [114]. This is so, even if the judgment or order is subsequently found to have been made without jurisdiction: Kable at [36].

144. The situation with respect to decisions of other courts and of tribunals is, however, entirely different. The difference was explained by the Court of Appeal in Rumble v Liverpool Plains Shire Council [2015] NSWCA 125 at [116] as follows:

[116] As the Court [in Kable] further explained, there is an underlying principle and an underlying policy supporting this conclusion. The principle is that once the order is made the liability of the person subject to the order depends on the judicial order and not the legal basis for the order. The policy is that to allow persons subject to the orders of superior courts to simply disregard the orders, despite the absence of a stay, on the basis that, if the orders are later set aside, they will not have been in contempt of court, would be entirely subversive of the place of court orders in the rule of law. The situation with respect to other courts and tribunals is entirely different: the failure to comply with an order of an inferior court made without jurisdiction cannot be a contempt of court. [Footnote 22: Kable at [56]; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435.]

145. Thus in the present case, the Supreme Court Judgment must be complied with even if the underlying legal basis for the judgment, the decision of the ADT made on 15 October 2013 and certified by a registrar, was made without jurisdiction or was otherwise invalid or liable to be set aside. The Court of Appeal’s reasons in Rumble establish, by way of contrast, that a failure to comply with a decision of the ADT or the Tribunal, if it was made without jurisdiction, does not amount to contempt. A similar conclusion was reached in relation to the District Court of New South Wales in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435.

146. Moreover, the circumstances where non-compliance with a tribunal decision does not amount to contempt may not be limited to where the decision is made without jurisdiction. A decision of a State tribunal such as the ADT or NCAT may be invalid and able to be disregarded without committing contempt in a number of circumstances including:

1. if the tribunal decides a matter which requires the exercise of federal judicial power, such as constitutional issues concerning s 49ZT(2) and, in so doing, has not understood the law correctly: Sunol v Collier [2012] NSWCA 14; 81 NSWLR 619 at [7]-[9] and [20] and note Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) [2006] NSWCA 185; 66 NSWLR 77 at [18]ff; and

2. if the tribunal’s decision involves jurisdictional error. This is because a decision affected by jurisdictional error is properly regarded as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51]; unless the statute under which the tribunal operates expressly or impliedly provides otherwise: Cardinal Project Services Pty Ltd v Hanave Pty Ltd [2011] NSWCA 399; 81 NSWLR 716 at [81].

147. Two further issues arise out of this last point. First, identifying a bright line between jurisdictional error and error in the exercise of jurisdiction is not without its difficulties, as Kirby J in the High Court acknowledged in Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57; 204 CLR 82 at [163]. This is further complicated, in the case of a tribunal such as the ADT or NCAT, by the comments by the High Court in Craig v South Australia (1995) 184 CLR 163 at 176ff concerning tribunals and how they differ from inferior courts. At 179, the High Court in Craig held:

At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. …

…

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

On this basis, it may be argued that any decision of the ADT or NCAT affected by error of law or other type of error identified in the passage quoted from Craig above is a nullity because the error amounts to a jurisdictional error.

148. In Craig, however, the High Court was speaking about tribunals in a specific sense. At 176, the type of tribunal which was contrasted with inferior courts was identified in the following terms:

In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored.

149. It is far from obvious whether it was intended that tribunals such the ADT and NCAT should be included in the type of tribunal which was the subject of the High Court’s observations or in the class of “anomalous … tribunals” referred to in the last sentence of the passage quoted. If the ADT and NCAT are included in the class of “anomalous” tribunals, it is not clear what principles apply in that case.

150. Secondly, both the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act) (in its form prior to 1 January 2014) and the Civil and Administrative Tribunal Act contain provisions which in effect require each tribunal to accord procedural fairness in proceedings before it: the ADT Act, ss 70 and 73(4) and the Act, s 38(4). Each Act also contains a provision to the effect that failure to comply with such sections, among others, “is to be treated as an irregularity and does not nullify the proceedings … or any decision in the proceedings …”: ADT Act, s 81(3) and the Act, s 53(3). Provisions in substantially the same terms also appeared in the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act), ss 28(4), 32(3) and 35. The Consumer, Trade and Tenancy Tribunal was also one of the tribunals incorporated into NCAT on its formation. On the basis of these sections, it could be argued that a failure to accord procedural fairness in accordance with each Act did not render the proceedings or any decision in such proceedings a nullity but merely voidable by the tribunal or by the Supreme Court.

151. This view is supported by the reasoning of Spigelman CJ in Italiano v Carbone [2005] NSWCA 177 which was concerned with s 32(3) of the CTTT Act. At [15] the Chief Justice held:

… the effect of a provision of this character [s 32(3)] is to render non-compliance voidable rather than void as may once have been the case.

152. In the same case, however, Basten JA apparently adopted a different view concerning s 32(3). He held at [115]:

… On the other hand, the Refugee Review Tribunal did not have a provision in its governing procedures which suggested that failure to comply with requirements of the Migration Act should be treated as an irregularity, rather than a nullity: c.f. s.32(3) of the CTTT Act. Nevertheless, as noted above, a reconciliation of s. 32(3) with the specific provisions, phrased in mandatory terms [s 35 of the CTTT Act], in relation to the procedure of the Tribunal, do not suggest that Parliament intended that breach of those provisions should be treated as mere irregularities, when their purpose was to reflect basic principles of procedural fairness: c.f. Plaintiff S157 v Commonwealth (2003) 211 CLR 476. In my view, the approach taken by the majority in SAAP should be applied in the present statutory context, with the result that the breaches of the statutory provisions identified above should be treated as invalidating the conclusion of the Tribunal.

153. Spigelman CJ also considered the operation of these types of provision in Attorney General of New South Wales v World Best Holdings Limited [2005] NSWCA 261; 63 NSWLR 557 at [83]ff. The Chief Justice (with whom Tobias JA agreed) was dealing with the argument that s 81(3) of the ADT Act meant that an order of the ADT was merely irregular and not void or voidable even though the tribunal had been improperly constituted. His Honour traced the origins of provisions such as s 81(3) to the Judicature Acts and observed that the concern of those Acts was to ensure that litigants were not defeated by mere technicalities: at [84]. At [86], his Honour observed:

Originally such provisions were contained in Rules of Court when, clearly, they could not extend to a failure to comply with an act. When transferred to the relevant statute, the provision was necessary wherever the statute included procedural stipulations, as is often the case, as in the ADT Act. However, the transfer to the Act did not change the effect and operation of the provision from its procedural origins.

154. At [93], his Honour commented that:

Section 81(3) states that deficiencies to which it applies are to be treated as an “irregularity”. All this means is that they are voidable rather than void. The section goes on to state that the deficiency “does not nullify … any decision” but this does no more than reinforce the effect of the word “irregularity”, i.e. that the deficiency does not of itself have the effect of “nullification”. The decision remains voidable. Section 81(4) makes it clear that the Tribunal can avoid the proceedings.

155. This reasoning is consistent with Spigelman CJ’s approach in Italiano v Carbone referred to above.

156. The significance of these matters is this. The respondent indicated in her submissions that she presently intended to challenge the validity of the ADT decision (and the Appeal Panel’s decision) on one or more of the grounds adumbrated in the submissions made on her behalf. Although it was not entirely clear, we understood these grounds to include (without attempting to be exhaustive):

1. whether the ADT failed to accord the respondent procedural fairness because it did not warn her of the adverse conclusions that might be reached in relation to:

1. “good faith” under s 49ZT(2), in circumstances where the respondent did not give evidence; and

2. other issues that arise under s 49ZT(2),

especially since the respondent was unrepresented and bore the onus of proof in respect of those matters under s 104 of the AD Act;

2. whether the “public acts” of the respondent, upon which her liability under s 49ZT(1) was based, occurred only in Victoria or whether she should be held responsible for the acts of others which led to her interviews being made available in New South Wales;

3. whether the failure to afford to the respondent the opportunity to make submissions on the form of orders to be made after liability had been determined amounted to a denial of procedural fairness;

4. whether there were other errors of law or jurisdictional errors, for example, in relation to the application of s 49ZT(2) or the implied constitutional freedom of political communication.

157. Some, at least, of those grounds, if successful, could lead to the conclusion that the ADT’s orders were a nullity or, at least, voidable. If a nullity, non-compliance with them would not amount to contempt. If voidable and set aside, this might amount to a reasonable excuse for non-compliance or a justification for imposing no punishment for any contempt.

158. Whilst we have not formed any view as to the prospects of success of any of these grounds, it does not appear to us that it could be concluded that the grounds upon which the respondent might seek to challenge the ADT orders are so devoid of merit that they should be discounted entirely in considering the exercise of our discretion.

159. The Supreme Court Judgment is based upon the ADT’s decision but, as a judgment of the Supreme Court, it will remain extant until it is set aside, whether the ADT’s decision is a nullity, voidable or valid. If the ADT’s decision is a nullity or if it is set aside, it would follow that the certificate issued under s 114 should also be set aside and there would then be no basis for the continued existence of the Supreme Court judgment which arises on filing of the certificate. In these circumstances and given the uncertainty surrounding the question of whether non-compliance with the ADT’s orders will constitute contempt if one or more of the grounds of challenge were successful, it would be appropriate and preferable for any proceedings challenging the ADT orders also to deal with the question of whether the Supreme Court Judgment should be set aside.

160. The Supreme Court Proceedings are presently on foot and a challenge to both the Supreme Court Judgment and the ADT orders might, in an appropriate form, be pursued in those proceedings. Any necessary procedural matters, such as joinder of necessary parties or similar issues, could be dealt with by the Supreme Court.

161. It does not appear to the Tribunal that it would be efficient or useful for additional proceedings, being contempt proceedings in the Supreme Court, to be brought into existence by our referring the alleged contempt under s 73(5). These proceedings would involve different parties from the Supreme Court Proceedings and would, in any event and in all probability, then have to be put on hold to await the outcome of any challenge by the respondent to the ADT orders in the Supreme Court Proceedings or other proceedings brought for the purpose of setting aside the Supreme Court Judgment.

162. In addition, there could be a degree of unfairness or prejudice to the respondent if, by referring the alleged contempt, the Tribunal effectively required her to participate in, and defend, not only the Supreme Court Proceedings arising out of the Supreme Court Judgment but also, at the same time, contempt proceedings in the Supreme Court. The applicant chose to invoke the procedure under s 114 of the AD Act but now seeks to invoke an alternate procedure under s 73(5) of the Act, without the procedure under s 114 having been brought to any conclusion. The financial burden on both the applicant and the respondent of defending and participating in one set of proceedings in the Supreme Court may be very significant, especially if they are unable to obtain pro bono assistance. The emotional and physical burden should also not be ignored. There does not appear to us to be any sufficient reason why the respondent should be subjected to another set of proceedings for contempt in the Supreme Court when the s 114 proceedings instigated by the applicant remain unresolved. In reaching this conclusion we have taken into account that the respondent could be seen to have been at least partly responsible for what has occurred in this case because of her apparent unwillingness to cooperate or participate in resolving the various proceedings brought against her by the applicant.

163. In the circumstances of this case, in our opinion it would be better for any applications in the Supreme Court Proceedings concerning, and any challenge to, the ADT orders and the Supreme Court Judgment to be heard and determined, and for any action to enforce the Supreme Court Judgment (as corrected or amended), if not set aside, to be completed before any application to refer under s 73(5) should be considered. Adopting that approach is appropriate because when the proceedings in relation to the Supreme Court Judgment are completed, it is likely that it will be either:

1. unnecessary to take any further enforcement action because the ADT orders will have already been effectively enforced by enforcing the Supreme Court Judgment (as corrected or amended); or

2. inappropriate to take any further enforcement action because the ADT orders will have been found to be a nullity or set aside.

164. In the light of this conclusion, it is not necessary to deal with the respondent’s submissions that this application be stayed pending determination of the matter of Burns v Gaynor (which the respondent identified as having file number 1410372) or any other proceedings.

165. Taking into account all the factual circumstances and for all of the reasons set out above, the Tribunal is of the view that it is not necessary, nor is it appropriate in the circumstances of this case, to refer the alleged contempt to the Supreme Court to be determined in order:

1. to enforce the ADT order for the benefit of the applicant; or

2. to protect the effective administration of justice by demonstrating that the Tribunal’s orders will be enforced.

166. Consequently, the application should be dismissed.

Orders

167. The Tribunal orders that:

1. The application lodged on 30 April 2015 seeking the referral to the Supreme Court under s 73(5) of the alleged contempt by the respondent is dismissed.

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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

Decision last updated: 09 September 2015