Secretary of the Department of Education v X [2023] NSWIRComm 1061

Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary of the Department of Education v X [2023] NSWIRComm 1061 Hearing dates: 8 June 2023 Date of orders: 21 June 2023 Decision date: 21 June 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner McDonald Decision: 1. Pursuant to s 164A(1)(a)(i) and (3) of the Industrial Relations Act 1996 the Respondent is to be referred to by the use of the pseudonym 'X', both in respect of this appeal proceeding and in the proceeding below in which the Respondent was the Applicant, being proceeding no. 2022/00187168. 2. Pursuant to s 164A(1)(a) and (3) of the Industrial Relations Act 1996 the disclosure to third parties of any material that identifies, or may lead to the identification of the Respondent, or any witness or other person named in the materials filed in this proceeding or in the proceeding below (other than officers and employees of the Appellant), including the name of the school at which the conduct the subject of the Appellant's investigation is said to have occurred, is prohibited. 3. Pursuant to s 164A(1)(c) and (d) and (3) of the Industrial Relations Act 1996 the publication of any material filed in this proceeding and in the proceeding below, is prohibited. 4. Orders 1, 2 and 3 do not apply to any subsequent proceeding commenced by the Respondent and may be varied or revoked pursuant to s 164A(4) of the Industrial Relations Act 1996 by a single Commissioner. 5. Orders 1, 2 and 3 remain in force for 30 years unless varied or revoked sooner. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Threatened dismissal of teacher for alleged misconduct — Application for leave to appeal and appeal from dismissal of notice of motion seeking order that proceedings be dismissed for want of jurisdiction — Non-disclosure orders made in proceedings below pursuant to s 164A of Industrial Relations Act 1996 (NSW) — Application by both Appellant and Respondent for non-disclosure orders to be made in respect of appeal proceedings, despite the parties foreshadowing that appeal proceedings and the proceeding below would be discontinued and there would be no hearing of the matter – Whether necessary in the interests of justice for non-disclosure orders to be made - Non-disclosure orders made Legislation Cited: Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Children's Guardian Act 2019 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW), ss 4, 8 Courts Legislation Amendment Act 2003 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Federal Court of Australia Act 1976 (Cth), s 50 Industrial Commission Rules 2022, r 2.6 Industrial Relations Act 1996 (NSW), ss 89(7), 162(20(b), 164A Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) Young Offenders Act 1997 (NSW) Cases Cited: A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72 Day v Smidmore and others (No 2) [2005] NSWIRComm 406; 149 IR 80 Dr A and Health District [2014] NSWIRComm 28; 244 IR 208 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 Russell v Russell (1976) 134 CLR 495 Tilley v Children's Guardian [2017] NSWCA 174 Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023 X v Department of Justice and Attorney-General [2011] NSWIRComm 1010 X v Secretary, Department of Education (No 2) [2022] NSWIRComm 1092 X v The NSW Department of Education [1999] NSWIRComm 34 Category: Procedural rulings Parties: Secretary of the Department of Education (Appellant) X (Respondent) Representation: Counsel: I Taylor SC with H Pararajasingham (Appellant) R Goot SC with B Rauf (Respondent Solicitors: Crown Solicitor's Office (Appellant) Thrive Workplace Consulting & Legal (Respondent) File Number(s): 2022/345194 Publication restriction: No, in respect of this judgment Non-disclosure orders made under s 164A of the Industrial Relations Act 1996 (NSW) and apply in respect of filed material Decision under appeal Court or tribunal: Industrial Relations Commission Citation: [2022] NSWIRComm 1092 Date of Decision: 26 October 2022 Before: Commissioner Muir File Number(s): 2022/187168