Case note: Houda v Seraphim

Houda v Seraphim [2025] NSWCATAP 135

Focus: Non-disclosure and non-publication applications in NCAT proceedings

This appeal concerned an anti-discrimination matter. The appellants unsuccessfully sought leave to appeal an interlocutory decision declining to make non-disclosure and non-publication orders under ss 49(2) and 64 of the NCAT Act. Notwithstanding that the appeal was in relation to an interlocutory matter, the appellants contended that:

• issues of public importance were raised regarding the apparent lack of appellate guidance around interpreting when orders under ss 49(2) and 64 of the NCAT Act are considered “desirable”, and 
• the Tribunal made errors of principle, and that the original decision was attended by sufficient doubt to justify a grant of leave to appeal.

The Appeal Panel noted that leave to appeal from an interlocutory decision would only be granted where there are “substantial reasons” for doing so. The Appeal Panel was unable to find demonstrable errors in the original decision. The appellants' argument that NCAT gave inappropriate weight to its exercising of judicial power under the Anti-Discrimination Act 1977 in its conclusion that the public interest in open justice in the case was “relatively strong”, was rejected. The appellants’ argument that the Tribunal did not give due regard to the potential harm to third parties was also rejected, as the appellants did not provide any evidence of how disclosure posed an appreciable risk to any third party.

The contention that the “limited appellate guidance” on the interpretation of the applicable sections gave rise to a matter of public importance, was rejected. Upon reviewing a number of previous decisions, the Appeal Panel was able to identify a set of principles that were consistently adopted when applying the relevant sections. Namely, the presumption of open justice, the requirement for the existence of good grounds for making the order, the insufficiency of damage to reputation or embarrassment on its own, and the breadth of the criterion of “desirability”.

Key takeaways

1. Where an entity seeks leave to appeal an NCAT interlocutory decision, it should consider whether the strength of its grounds is sufficient to satisfy the Appeal Panel that there are “substantial reasons” to grant leave.
2. This case provides insight into the application of the open justice principle in NCAT. Although it may be given greater prominence in NSW Courts, it is still a significant consideration in NCAT proceedings.
3. This case also provides clarity around when the making of non-disclosure and non-publication orders is considered “desirable”. Entities seeking such orders should consider whether they are able to satisfy the requirements, with reference to the context (in its widest sense) and purpose of the NCAT Act.