Industrial Relations Commission New South Wales Medium Neutral Citation: Diaz v Health Secretary in respect of NSW Health Pathology (No 2) [2022] NSWIRComm 1006 Hearing dates: 17 February 2022 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The notice of motion brought by Mr Diaz seeking non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – unfair dismissal – for non-publication orders – relevant principles – whether the applicant's circumstances warrant a departure from the principle of open justice Legislation Cited: Industrial Relations Act 1996 s 164A Cases Cited: Day v Smidmore (No 2) [2005] NSWIRComm 406 Dr A and Health District [2014] NSWIRComm 28 Texts Cited: Nil Category: Procedural rulings Parties: Dil Diaz (Applicant) Health Secretary (Respondent) Representation: D Diaz (Self) J Gautray, NSW Health Pathology (Respondent) File Number(s): 2021/188504 Publication restriction: No decision 1. The Commission has before it a notice of motion filed by Mr Diaz on 1 February 2022 ("Motion") seeking non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 ("Act"). The Motion sets out the orders sought by Mr Diaz as follows: "I seek an order under s 164 A (a) i, ii, (b), (c), (d) non disclosure act to 1. restrict and prohibit, 1.1. disclosure of my name, address, pictures, private, sensitive and confidential information about or related to medical reports or medical reports itself, information about sex and gender identity, any identifiable information, materials that leads to identification 1.2. publication/broadcasting of documents, materials with above information 1.3. the content/reports/evidence received in private or public by commission that discloses the above information of the case to the public 1.4. the disclosure of the above information itself, related information by the representative of respondent, respondent to other staff and public 1.5. and the respondent from disclosing, sharing, documenting (verbally, electronically or physically) proceedings of evidence before commission, and the contents of a document containing above information lodged or/and received by the commission in relation to the proceedings 2. retrieve, withdraw and amend any existing publication (physical, electronic, audio, visual) to comply with the requested order as per the attached affidavit under s 164 A (a) i, ii, (b), (c), (d) non-disclosure act." (Sic) 1. The grounds and reasons set out in the Motion are as follows: "due to past negative exposure, and serious concerns of vilification, harm to honor, reputation, safety and health and suffering as referred in the affidavit, 1. to reasonably protect my privacy and confidential, sensitive information 2. to prevent of further disparage, harm to dignity, safety and health of myself and my loved ones 3. to prevent further damage, prejudice to personal, professional life, social life, economical burden, past, present and future employment" (Sic) 1. The Motion is supported by an affidavit sworn by Mr Diaz on 1 February 2022 ("Affidavit"). The contentions in the Affidavit may be summarised as follows: 1. he and his family would be subject public opprobrium if he was identified through the proceedings and his personal information was disclosed; and 2. he was subjected to "poor treatment" as an employee of NSW Health Pathology, including breaches of privacy and confidentiality. This raises in Mr Diaz "serious concerns" that NSW Health Pathology may publicly disclose matters arising in these proceedings to the detriment of his public standing and career prospects. 1. The Health Secretary filed an outline of submissions in respect of the Motion on 4 February 2022. The tenor of those submissions suggested that the Health Secretary opposed the making of non-disclosure orders, or at least did not consider that Mr Diaz had made out the case for such orders to be made. 2. However, during a directions hearing of the proceedings on 17 February 2022 Mr Jack Gautray, the Manager Industrial Relations for NSW Health Pathology who appeared for the Health Secretary, stated that the Health Secretary did not actively oppose the making of the orders sought. Rather, the Health Secretary considered this to be a matter for the Commission and her submissions were intended to assist in outlining the principles to be applied by the Commission in exercising its discretion. 3. Also at the directions hearing on 17 February 2022, directions were made to allow Mr Diaz to file and serve any additional submissions on which he sought to rely in respect of the Motion. On receipt of those submissions, and anything further that the Health Secretary wished to put in response, the Commission would determine the Motion "on the papers". 4. On 21 February 2022 the Registry received an email from Mr Diaz setting out his further submissions ("Further Submissions"). Having considered those submissions carefully in the context of the Motion, I have determined not to reproduce or even paraphrase them. Suffice it to say, the Further Submissions provide significantly more clarity as to the basis for Mr Diaz's request for non-disclosure orders than was apparent from the Motion and the Affidavit. 5. On 23 February 2022 the Registry received an email from Mr Gautray providing the Health Secretary's response to Mr Diaz's Further Submissions. Contrary to the position put on 17 February 2022, but more consistent with the submissions received on 4 February 2022, the Health Secretary submitted, in effect, that non-disclosure orders ought not be made. The email asserted that the Health Secretary "maintains that [Mr Diaz] has not established that any of the non-disclosure orders are 'necessary' 'in the interests of justice'". It further stated that Mr Diaz had not proven the factual basis on which the orders were sought, including the conduct he alleged had occurred during his employment and the impact that any disclosure of personal information would have on him. The Health Secretary stated that there was no intention that Mr Diaz's personal information would be disclosed or published to the general staff of NSW Health Pathology or to the public. Decision and reasons 1. Having considered the evidence and submissions filed by Mr Diaz in support of the Motion and the Health Secretary's submissions, I have decided not to make the orders sought by Mr Diaz. My reasons are as follows. 2. Subsection 164A(3) of the Act empowers the Commission to "make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice". The types of non-disclosure orders that can be made are prescribed in s 164A(1). 3. The approach to the exercise of the Commission's power in s 164A was considered by the Full Bench in Dr A and Health District [2014] NSWIRComm 28. The Full Bench set out (at [46]) the authorities as to the making of non-disclosure orders on which the respondent in those proceedings relied, and summarised the principles which were said by the respondent in that case to be derived from them, as follows: "47. In referring to these authorities the main points sought to be made by the respondent were that: (1) the principle of open justice is a fundamental aspect of the legal system and the conduct of proceedings in public is an essential quality of an Australian court of justice: John Fairfax 2004 per Spigelman CJ at [18]-[21] (Handley JA & Campbell AJA agreeing); Rinehart at [32]; Fairfax Digital at [9]; (2) exceptions to the principle of open justice are strictly defined and applied sparingly: John Fairfax 2004 at [19], [21]; (3) the test in s 164A(3) of the IR Act is the common law test: Smidmore (No 2) at [29]; (4) according to the common law test mere embarrassment or distress is not sufficient to warrant the making of a non-disclosure order: Smidmore (No 2) at [19]; Buttling (No 2) at [26]; 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: Smidmore (No 2) at [32]; Buttling (No 2) at [6]; (5) the 'necessary' requirement in s 164A(3)(b) of the IR Act reinforces the legislative intention that non-disclosure orders should only be made in exceptional circumstances: Buttling (No 2) at [8]." 1. At [48] the Full Bench accepted these principles as correct. 2. The terms of s 164A(3) in its present form differ to those considered by the Full Bench. It is not necessary to explore the changes in detail. Although the Act no longer contains a s 164A(3)(b), the principle outlined at [47(5)] of the extract above is apposite to s 164A(3) in its current terms. 3. In Day v Smidmore (No 2) [2005] NSWIRComm 406 the Full Bench observed: "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'…" 1. Mr Diaz is effectively seeking to be able to run these proceedings in complete anonymity. Orders giving effect to such an outcome would only be contemplated in exceptional circumstances. 2. I am mindful that in the Motion and the Affidavit Mr Diaz made a number of contentions as to how he perceived he was treated during his employment in the NSW Health Service. Similar allegations are made in his Further Submissions. In her submissions, the Health Secretary refuted that there was any foundation for the concerns raised by Mr Diaz. 3. The question as to how Mr Diaz was treated during his employment will be at the heart of the substantive proceedings. It is neither necessary nor appropriate to attempt to reach concluded findings in that regard at this early stage of the proceedings and with only a small amount of evidence. In any event, in so far as it bears more directly on the Motion, I am not persuaded on the evidence that Mr Diaz has presented that there is a proper basis for him to hold concerns that NSW Health Pathology will actively and mischievously disclose matters arising in the proceedings to besmirch his reputation or character, or to diminish his employment prospects. 4. It is not apparent at this time that the personal matters on which Mr Diaz relies in support of the Motion, most particularly in the Further Submissions, will arise during the substantive proceedings or be relevant to the Commission's determination of the proceedings. The concerns reflected in the Motion, Affidavit and Further Submissions may not materialise. However, to the extent that particular evidence is led which may warrant the making of a more limited and focussed order than those Mr Diaz presently seeks, an application can be made at that time. It can be dealt with in the context of the totality of the evidence and the cases presented by the parties. As things stand, the Motion is pre-emptive and premature. 5. To adopt the words of the Full Bench in Day v Smidmore, the orders sought in the Motion appear designed "merely to protect [Mr Diaz] from injury, hurt, embarrassment or distress" and that to grant them would be "inimical to the ordinary rule that courts should conduct their proceedings 'publicly and in open view'". Mr Diaz has not established that his are "exceptional circumstances" warranting the making of the orders he seeks. On the basis of the authorities referred to above, I am not satisfied that he has demonstrated that it is necessary in the interests of justice that the orders sought in the Motion be made. Order 1. The notice of motion brought by Mr Diaz seeking non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 is dismissed. Damian Sloan Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2022