Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

CITATION: Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 PARTIES: Paul Cutbush (Applicant) v Team Maree Property Service (Respondent) APPLICATION NUMBER: APL031-10 MATTER TYPE: Appeals, application for non-publication order HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 30 November 2010 DELIVERED AT: Brisbane ORDERS MADE: The application is refused CATCHWORDS : PRACTICE AND PROCEDURE – NON- PUBLICATION ORDER – DECISIONS AND ORDERS – Queensland Civil and Administrative Act 2009, s 66(2) – where the applicant successfully appealed a decision at first instance that terminated his residential tenancy agreement – where appeal decisions have been published on the Queensland Supreme Court Library website – where the applicant sought a non-publication order to remove the appeal decisions from the website – where applicant argued the appeal decisions contained confidential information and that it would be in the interests of justice to have them removed – whether special circumstances to justify making a non-publication order – whether Tribunal should depart from principle of open justice Queensland Civil and Administrative Act 2009, ss 66(1), 66(2), 122(2), 125(1) Cutbush v Team Maree Property Services [2010] QCATA 009, cited Cutbush v Team Maree Property Service (No 2) -- 1 of 4 -- [2010] QCATA 020, cited David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294, cited Dye v Commonwealth Securities [2010] FCAFC 115, cited Herron v The A-G for New South Wales (1987) 8 NSWLR 601, cited Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024, applied John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, cited Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1, cited Russell v Russell (1976) 134 CLR 495, cited Scott v Scott [1913] AC 417, cited Wilson Watt Papandrea P/L v Harts Australasia Ltd & Queensland Newspapers P/L [2001] QCA 179, cited X v Australian Prudential Regulation Authority (2007) 226 CLR 630, cited REASONS FOR DECISION [1] Mr Paul Cutbush and Ms Judith Cutbush entered into a tenancy agreement for residential premises in Tamborine managed by Team Maree Property Services. An application was brought by the agents to terminate the tenancy on the grounds of Mr Cutbush’s alleged objectionable behaviour. The application was granted at first instance, but in a decision of 29 April 20101 I granted Mr Cutbush leave to appeal that decision. On 7 June 20102 I set aside the original order, and dismissed the application. In effect, then, Mr and Mrs Cutbush succeeded in their appeal to the QCAT Appeal Tribunal. [2] Those two decisions were published, among other places, on the Queensland Supreme Court Library website3. [3] Mr Cutbush subsequently sought a non-publication order to have the 29 April 2010 and 7 June 2010 decisions removed from the Queensland Supreme Court Library website. He contended that, because the decisions were published prior to the expiry of his lease, he has been unable to secure another tenancy; and that the decisions contained detailed confidential information about his occupation, address, children and tenancy status. He argued that it would be “in the interests of justice” to grant him a non-publication order (although the decisions refer to the address of the rented premises, they do not in fact provide any details about Mr Cutbush’s children, or his occupation). 1 Cutbush v Team Maree Property Services [2010] QCATA 009 2 Cutbush v Team Maree Property Service (No 2) [2010] QCATA 020 3 The QCAT legislation grants the Tribunal the discretion to publish its final decisions online: QCAT Act, s 125(1) 2 -- 2 of 4 -- [4] Mr Cutbush’s application for a non-publication order was refused. He sought reasons, as he is entitled to do4. [5] This Tribunal is vested with the discretionary power to prohibit the publication of the contents of a document; evidence given before the tribunal; or, relevantly, information that may enable a person who has appeared before the tribunal, or is affected by a proceeding in the Tribunal, to be identified: Queensland Civil and Administrative Act 2009, s 66(1). [6] The grounds for granting such an order are contained in s 66(2) and, for the purposes of this application, include avoiding the publication of confidential information or information that would be contrary to the public interest; or for any other reason in the interests of justice. [7] The phrase “in the interests of justice” is not defined in the QCAT Act but generally confers a broad discretionary power on the decision-maker5. The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers the order is necessary. [8] Although QCAT’s discretion to grant a non-publication order is created by statute, the discretion is underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts6. This principle applies in cases where the information has already been published, or not7. [9] Open justice requires that nothing should be done to discourage the fair and accurate reporting of what takes place in the courtroom, unless there is some material before the court to show that it is reasonably necessary to prohibit the publication8. The onus is on the applicant to show special circumstances justifying the making of the order9. [10] Where the publication concerns identification of parties or persons affected by proceedings, the mere fact that the publication may produce “embarrassment or unfortunate financial effects” is generally not a sufficient reason to prohibit publication10, especially if the names have already been published11. 4 QCAT Act, s 122(2) 5 Herron v The A-G for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P) 6 Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J 7 See Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024 at [23] 8 John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA (as his Honour then was) David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294 at 307; Wilson Watt Papandrea P/L v Harts Australasia Ltd & Queensland Newspapers P/L [2001] QCA 179; Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 19; Scott v Scott [1913] AC 417 10 Dye v Commonwealth Securities [2010] FCAFC 115 at [13] per Flick J; X v Australian Prudential Regulation Authority (2007) 226 CLR 630; cf Scott v Scott, supra 11 Dye v Commonwealth Securities Limited, supra, at [15] per Flick J 3 -- 3 of 4 -- [11] I accept for the purposes of this application that the internet has made it easier for property agents to access information about potential tenants relating to proceedings in this Tribunal, and that this information could influence the outcome of a tenancy application. However, issues of this kind have not gone unnoticed by the courts and the observations of Kirby J in X v Australian Prudential Regulation Authority12 at 655 ([87], [89]) are particularly apposite to the kinds of concerns raised by Mr Cutbush: [87] I realise that the identification of the names of X and Y and of the corporation, Z, with which they are associated, might be embarrassing to all of them. I accept that, in contemporary times, with the ready availability of the internet, the disclosure of their identities and of the proceedings designed to prevent APRA and Mr Godfrey from taking the administrative steps foreshadowed, might do some harm to individual and corporate reputations. … [89] However, every day, in our courts, parties and witnesses must disclose their names and identities, although this is doubtless often uncongenial and even damaging. It is part of the strong tradition of open justice that characterises the courts of this country. [12] The published decisions of 24 April 2010 and 7 June 2010 may well contain information that could influence Mr Cutbush’s search for alternative rental accommodation, but they do not otherwise disclose any material that is confidential or not in the public interest. [13] Section 66 of QCAT Act gives effect to the principle of open justice. Mr Cutbush has not demonstrated any special circumstances that would enliven QCAT’s discretion to depart from that principle. For these reasons, his application to remove the decisions of 24 April 2010 and 7 June 2010 from the Supreme Court Library website were refused. [14] For the sake of completeness I should also refer to other grounds of relief that were available to Mr Cutbush under s 66(2) of the QCAT Act: to avoid interfering with the proper administration of justice; to avoid endangering the physical or mental health or safety of a person; or to avoid public decency or morality. Nothing in his submissions is persuasive that he could have obtained relief under any of these other grounds, had he chosen to address them. 12 (2007) 226 CLR 630 4 -- 4 of 4 --