Robert George Wood and Director General of Education and Training NSW Department of Education and Training [2008] NSWIRComm 18 (6 February 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Robert George Wood and Director General of Education and Training NSW Department of Education and Training [2008] NSWIRComm 18



FILE NUMBER(S):
2093

HEARING DATE(S):
6 February 2008

DATE OF JUDGMENT:
6 February 2008

PARTIES:
Robert George Wood and Director General of Education and Training NSW Department of Education and Training

CORAM:
Grayson DP


CATCHWORDS: Unfair dismissal - Interlocutory application for non disclosure orders - Potential for embarrassment and hurt - Principles of open justice - Stringent test to be applied to the making of non disclosure orders - Test of necessity for such orders in the interests of open justice

Held - Test not met - Application for orders refused

LEGAL REPRESENTATIVES
Ms P Lowson of counsel instructed by MacMahon Associates Pty Ltd (Ms J Macara)
Mr S Benson of counsel instructed by Mr P Quinn, Department of Education and Training

CASES CITED:
A v The Commission for Children and Young People (No 4) (2000) 104 IR 131
Attorney General for NSW v Mayas Pty Limited (1988) 14 NSWLR 342
Harry Day v John Smidmore and ors (No. 2) [2005] NSWIRComm 406
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495
Scott v Scott [1913] AC 417

LEGISLATION CITED:
Child Protection (Prohibited Employment) Act 1998
NSW Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

- 4 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Grayson, DP

6 February 2008

Matter No IRC 2093 of 2007

Robert George Wood and Director General of Education and Training NSW Department of Education and Training

Application by Robert George Wood re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

INTERLOCUTORY DECISION

[2008] NSWIRComm 18

1 In this matter, the Commission is asked on behalf of the applicant to make non-disclosure orders pursuant to s164A of the Industrial Relations Act 1996. The application which proceeds by Notice of Motion filed by the applicant's legal representatives, is supported by the affidavit of Joanne Frances Macara, solicitor, and is opposed by the employer. The matter is attended by some degree of urgency given among other things that the applicant's evidence is to be filed in accordance with earlier directions of the Commission in two days time.

2 Section 164A of the Act provides as follows:

(3)The Commission (other than in Court Session) may make any non-disclosure order only if:

(a) in relation to proceedings under Subdivision 2 of Division 2 of Part 7 of the Commission for Children and Young People Act 1998—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, or

(b) in relation to any other proceedings—it is satisfied that it is necessary to do so in the interests of justice.

3 The provision was considered by a Full Bench of the Commission comprising Wright, P, Boland and Backman JJ in Harry Day v John Smidmore and ors (No. 2) [2005] NSWIRComm 406. In that case the Full Bench said this:

29 The test in s 164A(2) is to be contrasted with that to be applied by the Commission, other than in Court Session, in making non-disclosure orders in relation to proceedings other than those under the Child Protection (Prohibited Employment) Act 1998, which is that the Commission may only make such orders if "it is satisfied that it is necessary to do so in the interests of justice." The latter test is based on the common law test: John Fairfax & Sons Pty Limited v Police Tribunal of NSW & Anor at 476-477 per McHugh JA; John Fairfax Group Pty Limited & Anor v Local Court of NSW & Ors (1992) 26 NSWLR 131 at 161B per Mahoney JA; Attorney General for NSW v Mayas Pty Limited (1988) 14 NSWLR 342 at 345F per Mahoney JA; A (No 4) at [49].

30 We should say immediately that if the test to be applied here were the common law test it is highly likely the respondent's motion would fail. We can see no basis for the proposition that the non-disclosure orders are necessary to attain justice in this particular case. Mere embarrassment or distress would not be sufficient to justify a non-disclosure order: See A (No 4) at [12], [14], [16] and [48] and the cases referred to therein.

31 The test we are obliged to apply provides that the Court may exercise its discretion to make any non-disclosure order if we are satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. The application of that test must be approached on the basis that the legislature intended to give the Court a much wider scope for exercising its discretion to make non-disclosure orders than the common law test.

32 Whilst we do not consider it appropriate to define with precision the boundaries of the powers conferred by s 164A, in exercising the power under s 164A(2) we do not consider that it would ordinarily be desirable to make a non-disclosure order only because a person was embarrassed or distressed by allegations made in proceedings. The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings "publicly and in open view": Scott v Scott [1913] AC 417 at 441. As Gibbs J observed in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 520 (quoted in A (No 4) at [45]):

This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.

33 As Kirby P observed in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 at 142-143:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging, and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may care to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

4 In the course of argument today the Commission has been taken to the legal principles set out above and to the evidence contained in Ms Macara's affidavit which goes essentially to the potential for hurt and embarrassment to the applicant in the absence of protection by non-disclosure orders. Mr Benson for the employer submitted that the test of whether it is necessary to make non-disclosure orders in the interests of justice involves consideration of whether, in the absence of such orders, the purpose of these proceedings would be frustrated and it is that test which ought be applied rather than the test of potential hurt and embarrassment to the applicant. I am of the view on balance and after careful consideration of the evidence and arguments advanced by counsel on both sides of the record that Mr Benson's submission in that regard is correct.

5 I do not in saying that ignore the importance of avoidance, where possible, of unnecessary embarrassment or hurt to litigants or witnesses before the Commission. Such considerations, however, can be taken into account in the way in which counsel conduct themselves professionally in the course of proceedings and in the ultimate publication of reasons for decision by the Commission. They do not of themselves constitute the prerequisite necessity to make non-disclosure orders in the interests of justice and in that regard I again observe the dicta of Kirby P to the effect that a significant reason for adhering to a stringent principle of open justice, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.

6 In all the circumstances and after careful consideration of the facts and matters submitted I am not persuaded that non-disclosure orders are necessary in the interests of justice. The application for such orders is therefore refused.




LAST UPDATED:
6 February 2008