Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. The Tribunal delivered its decision in Council of the New South Wales Bar Association v Loukas [2025] NSWCATOD 39 (the Decision) and made disciplinary findings and orders against the respondent, pursuant to s 300 of the Legal Profession Uniform Law 2014 (NSW). Due to the sensitive nature of some of the evidence, the Tribunal considered it desirable (adopting the language in s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)) to keep confidential the names of third parties (the non-disclosure orders).

2. In the Decision, the Tribunal explained the basis for making the non-disclosure orders as follows:

"4 The objects of the NCAT Act relevantly include:

3 Objects of Act

The objects of this Act are-

...

(f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.

5 Section 49 of the NCAT Act states:

49 Hearings to be open to public

(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

6 Section 64 of the NCAT Act relevantly provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders-

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to the proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

...

7 Although there is a presumption in favour of open justice when conducting proceedings, the principle is not absolute: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81].

8 Given the sensitive and personal nature of the evidence concerning third parties, that the hearing was nevertheless open to the public and that the relevant circumstances can be explained without identifying the third parties, the Tribunal is satisfied that it is desirable that orders be made under 64(1)(a) as follows:

(1) The respondent's client will be referred to as "the Client".

(2) The former wife of the Client will be referred to as Person A.

(3) Person A's mother will be referred to as Person B."

3. The Tribunal provided an opportunity for submissions in relation to whether the non-disclosure orders should persist.

4. Initially, Person B supported by Person A's father, sought an order lifting the non-disclosure orders, at least with respect to the names of Person A and Person B. The basis for lifting the orders included the following:

1) The default position is open justice, unless clear countervailing factors justify otherwise.

2) The undoubted breadth of the range of purposes for which a non-disclosure order may be made, nevertheless does not warrant the making of non-disclosure orders here.

3) Damage to reputation or mere embarrassment will not, generally, and does not here, provide sufficient grounds for the non-disclosure orders.

4) Suppression of Person A's name would do a "dis-service to her story" and the public confidence gained in the profession by lifting the non-disclosure orders.

5) As a corollary, continuing the confidentiality silences her story and tends to "minimise or excuse the conduct of the practitioner".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1980c84c646a19e2035a8803)

Disclaimer: Curated by HT Syndication.