Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) (No 2) [2023] NSWIRComm 1042

Industrial Relations Commission New South Wales Medium Neutral Citation: Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) (No 2) [2023] NSWIRComm 1042 Hearing dates: Determined on the papers Date of orders: 8 May 2023 Decision date: 08 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The application by Ms Banozic for a non-disclosure order pursuant to s 164A of the Industrial Relations Act 1996 is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – decision delivered finding the Commission lacked jurisdiction – subsequent application made for orders to replace the name of the applicant with a pseudonym – 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: Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1038 Diaz v Health Secretary in respect of NSW Health Pathology (No 2) [2022] NSWIRComm 1006 Texts Cited: Nil Category: Procedural rulings Parties: Eva Banozic (Applicant) Industrial Relations Secretary (Respondent) Representation: C McArdle, McArdle Legal (Applicant) DCJ Legal (Respondent) File Number(s): 2023/00080202 Publication restriction: No

DECISION 1. On 24 April 2023 I handed down my decision in Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1038. In that decision I determined that the Commission lacked jurisdiction to hear and determine proceedings that Ms Banozic had sought to bring to resolve a dispute between herself and Corrective Services NSW. 2. In keeping with the Commission's usual practice, the decision was published on NSW Caselaw. Immediately thereafter, an email was sent to the parties informing them that the decision had been published on NSW Caselaw and providing them with a link to access the decision. 3. On 4 May 2023, the Industrial Registrar received an email from Ms Banozic's solicitor, Chris McArdle of McArdle Legal, which stated in part: "In view of the distress that our client is under (that is not disputed) we are instructed that there is a bona fide medical reason for her name to be excised from the record of the published jurisdictional decision. We ask that it not be posted pending the production of the doctor's certificate. We will then present the certificate in support of an application that the Commission exercise its power under Section 164A, in particular 164A(1)(a)(i), and 164A(3). If the Respondent agrees to this, there will be no need to seek the Commissions [sic] input. We would welcome an indication as to whether this measure is agreed." 1. At 9.00am on 5 May 2023, the Industrial Registrar sent an email to the parties, which stated in part: "As advised in the Commission's email to you of 24 April 2023, the decision in Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1038 was published on NSW Caselaw that day. That was in keeping with the Commission's usual practice. Any application that your client wishes to make pursuant to s 164A of the Industrial Relations Act 1996 will be considered on an urgent basis by Commissioner Sloan. Please be aware that it is a matter for the Commission to determine whether such an order ought to be made, which goes beyond the parties seeking 'the Commission's input'. The consent of the respondent might be a relevant consideration, but would not be determinative." 1. At 10.22am on 5 May 2023, the Industrial Registrar received an email from the Secretary's representative, which stated in part: "In accordance with your advice that the Respondent's perspective may be a relevant consideration, we have instructions to consent to the Applicant's name being excised from the published decision on the caselaw NSW website and replaced with a pseudonym, on the understanding that the substantive decision would still be available online without the Applicant's name attached." 1. At 2.26pm on 5 May 2023, the Industrial Registrar received an email from Mr McArdle, which stated in part: "Please regard this message as an Application by consent for the Commission to exercise its Jurisdiction pursuant to Section 164A, and to thereby designate the published decision of Commissioner Sloan as: [designation decided by Commission] v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1038 We repeat our words of 4 May: In view of the distress that our client is under (that is not disputed) we are instructed that there is a bona fide medical reason for her name to be excised from the record of the published jurisdictional decision. We attach the most recent doctors' certificates that we have to hand – they were previously tendered in this matter. In view of the immediacy of this issue, we ask that they be used for reference in this application. We advocate that it would be in the interests of justice (see Section 164A(3)) to adopt this application having regard to: 1. The agreement of the parties; 2. The balance of convenience between the parties, as follows: a. There would be no inconvenience to the Respondent for this to be granted, but b. There would be mitigation of documented health issues of the Applicant, for it to be. 3. There would also be no impediment to the public record. The principles and consideration of the Commission in the matter would remain unaltered and on the record. We commend our application to the Commission." (Emphasis in original) 1. There were two attachments to Mr McArdle's email. One was a medical certificate prepared by Dr Praneetha Amaranath dated 21 March 2023. The other was a referral from Dr Sunita Malhotra to another practitioner dated 7 March 2023. Given the nature of the application before me, I will not traverse the contents of those documents. 2. On 8 May 2023 I arranged for the Industrial Registry to send an email to the parties, asking whether the parties wished to be heard on the application or were content for it to be determined "on the papers". Both parties responded by emails confirming that they were content with the latter course. 3. Consistent with the commitment given by the Industrial Registrar on my behalf in her email to the parties of 5 May 2023, I have expedited the delivery of this decision. 4. In Diaz v Health Secretary in respect of NSW Health Pathology (No 2) [2022] NSWIRComm 1006 I stated: "10. 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). 11. 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].' 12. At [48] the Full Bench accepted these principles as correct. 13. 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." 1. Applying these principles to the present case, and notwithstanding that the present application is brought by consent, I am not persuaded that the order sought by Ms Banozic ought to be made. 2. I am mindful of Ms Banozic's medical condition. However, the medical evidence on which she relies attributed that condition to a "work related incident", to the manner in which the Department of Communities and Justice had acted in investigating that incident and to other conduct in which her managers had reportedly engaged. There is no medical evidence as to the impact, if any, that the publication of Ms Banozic's name in the decision of the Commission will have on her condition. Having regard to "the ordinary rule that courts should conduct their proceedings publicly and in open view" and "that non-disclosure orders should only be made in exceptional circumstances" it should not be left to the Commission to draw inferences or make assumptions on such matters in the absence of evidence. 3. I also observe that the medical evidence relied on by Ms Banozic in the present application was available to her from 21 March 2023. The hearing which preceded my earlier decision in this matter took place on 21 April 2023. Ms Banozic did not prior to or during that hearing raise the possibility of making, much less make, the application now before the Commission. Further in this regard, I note that the parties were informed on 24 April 2023 that the earlier decision had been published on NSW Caselaw, yet it took 10 days for the Commission to be informed that an application for an order pursuant to s 164A of the Industrial Relations Act 1996 was contemplated. 4. The application by Ms Banozic for a non-disclosure order pursuant to s 164A of the Industrial Relations Act 1996 is dismissed. Damian Sloan Commissioner