Industrial Relations Commission of New South Wales CITATION: Allan John Veney and NSW Local Govt, Clerical, Administrative, Energy, Airlines & Utilities Union.Application by Allan John Veney re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 [2008] NSWIRComm 1024 APPLICANT Allan John Veney PARTIES: RESPONDENT Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union FILE NUMBER(S): 3135 of 2006 CORAM: Murphy C CATCHWORDS: Applicant sought orders applying to hearing of outstanding s.84 costs applications on 5 and 6 June 2008, preventing publication of privileged evidence on basis primarily that s106 proceedings, also filed by the applicant should not be prejudiced by awareness of negotiations to settle s.84 case IRC 3135 of 2006. Submissions in support of draft orders included coverage of s.164A providing for such confidentiality, and reference to real potential for perceived prejudice to judge hearing s.106 matters. Respondent did not object, subject to caveats. Held: In interests of justice that orders sought be granted, subject to caveats agreed to by applicant's representative. LEGISLATION CITED: Industrial Relations Act 1996 Sleap & ABB Administrative Services Pty Ltd [2005] NSWIRComm 1193 Sleap v ABB Administrative Services Pty Limited [2007] NSWIRComm 1043 CASES CITED: Paul Sleap and ABB Administrative Services Pty Limited [2007] NSWIRComm 1065 Day v Smidmore & Ors 92005) 149 IR 80 @ 24 Liversey & The NSW Bar Association 153 CLR 288 HEARING DATES: 05/03/08 DATE OF JUDGMENT: 11 March 2008 APPLICANT Mr E Moorhouse of Counsel briefed by Harmers Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Barnes, Solicitor of Barnes White DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 11 March 2008 Matter No IRC 3135 of 2006 Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union Application by Allan John Veney re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 INTERIM DECISION [2008] NSWIRComm 1024 1 This is an interim decision on an amended Notice of Motion filed during proceedings in the Commission, seeking non publication orders of "Privileged Evidence" to be put before the Commission in respect of costs applications filed with the Commission by each of the parties on 19 November 2007. 2 A decision in respect to the substantive s.84 application by Mr Veney was handed down by me on 23 October 2007. The details of that decision are unimportant to this current application and need not be referred to here. 3 The abovementioned applications for Costs in respect to the s.84 matter are to be subject to hearing on 5 and 6 June 2008. 4 Also relevant to this interlocutory matter is that on 18 September 2007 the applicant filed an application for relief under Section 106 of the Industrial Relations Act, which at the date of this Interim Decision, remains to be arbitrated before another judicial member of the commission, having been previously before his Honour, Mr Justice Boland for conciliation. 5 The Section 106 proceedings figure as a pivotal reason for the applicant seeking to have the upcoming Costs proceedings privileged against publication, expounded upon by counsel for the applicant, below. Exhibit "A" is an affidavit filed on 5 December by Ms J Innes of Harmers Lawyers, for the applicant, advising of the currency of that application before the Commission, reinforced by an update by the parties representations from the bar table. 6 The hearing of the interim application took place on 5 March 2008, where Mr E Moorhouse of Counsel continued to represent the applicant, instructed by Harmers Workplace Lawyers, whilst the respondent to that application was represented by Mr M Barnes of White Barnes, Solicitors, the instructing solicitors, on the substantive matter and involved in both the Section 106 application and the impending costs hearing. 7 Exhibit "D" is the amended Notice of Motion filed in proceedings and not objected to by Mr Barnes on behalf of the respondent to the Notice of Motion, subject to two caveats. These essentially provided for leave to seek amendment to the orders sought for privilege if that later became necessary and that the lack of objection by the respondent to the privilege application should not be construed and used prospectively, if the respondent did find it necessary to seek amendment or variation to the orders as to privilege, if granted by the Commission. These qualifications were agreed to by Mr Moorhouse on behalf of the applicant. SUBMISSIONS 8 Mr Moorhouse began his support for the application with reference to Section 164A, which was a 2004 amendment to the Act providing for the circumstances under which the Commission might make an order for non-disclosure of evidence, primarily requiring that it be in the interests of justice to do so - (S.164A(3) refers). 9 The full content of Section 164 A is outlined as follows: "[IRA 164A] Powers of Commission as to the disclosure of matters before the Commission. 164A (1) A non-disclosure order is any of the following Orders: (a) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission, (c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in a private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings. (2) The Commission in Court Session may make any non-disclosure order if 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. (3) The Commission (other than in Court Session) may make any non-disclosure order only if: (a) in relation to proceedings under the Child Protection (Prohibited Employment) 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 reasons, or; (b) in relation to any other proceedings - it is satisfied that is necessary to do so in the interests of justice. (4) The Commission may from time to time vary or revoke an order it has made under this section. (5) Nothing in this section operates to limit any power of the Commission in Court Session apart from this section to make a non-disclosure order or any other order prohibiting or restricting the disclosure or publication of matters before the Commission. 10 Mr Moorhouse also referred the Commission to various authorities in support of the exercise of the Commission's discretion under Sections 162 and 164A, including Day v Smidmore & Ors (2005) 149 IR 80 @ 24. 11 As part of the factual background to the application, he accentuated that Mr Veney had made an application under S.106 of the Act which, as mentioned earlier, is still on foot as Matter Number IRC 1774, and that Mr Veney had raised with the respondent that he thought that he had a claim under the section prior to the conclusion of the Section 84 proceedings, which resulted in offers to settle all matters. 12 In support of the major requirement of S.164A, that it be in the interests of justice to grant the application for confidentiality, Mr Moorhouse presented the following arguments: · The upcoming costs application will require revelation of "without prejudice" offers, which also encompass the application under S.106, which has the potential to prejudice the parties to that claim now before the Industrial Court; · Disclosure of such offers in respect of the S.106 claim would be against accepted practice of the Commission that the judge hearing the S.106 should not be informed of settlement offers before the claim is determined - (see rule 172(2)). It is also reflected in the practice of having a different judges involved in the arbitration, than in the conciliation. · Such disclosure may lead to judges considering that they could not impartially hear the claim, or that there may be a perception to that effect, and on that point Mr Moorhouse drew the Commission's attention to the leading authority on the test of perceived bias of Liversey and the NSW Bar Association 153 CLR 288. · Disclosure of without prejudice offers would be contrary to the privilege reflected in S.131 of the Evidence Act 1995 (NSW) - (extract provided to Commission), against the disclosure in evidence of settlement negotiations. · Further relevant case law was referred to by Mr Moorhouse and noted by the Commission. · Mr Moorhouse also referred the Commission to Ritchie's Uniform Civil Practice in relation to procedural matters in the Supreme, District and Local Courts. Rule 20.30 of the Uniform Civil Procedure Rules regarding the disclosure of offers to the court provides that; "No statement of the fact that an offer has been made may be contained in any pleading or affidavit". In subsection (2) it goes on to provide; "If an offer is not accepted, no communication with respect to the offer may be made to the court at the trial, or, as the case may require, to the arbitrator". Those provisions reflect the usual position that offers are not disclosed until after all matters in context have been determined, said Mr Moorhouse and further referred the Commission to the commentary, which contained the statement; "Breach of the prohibition against disclosure could result in the trial judge refusing to continue to hear the case", noting also that there is a discretion to prevent continuation of the hearing. · Mr Moorhouse suggested that the Commission itself amend order 1(a), so that the words "any judgement" should be changed to read "any published judgement", which would allow for the parties to be provided with a copy of my decision on costs, but otherwise it would be kept confidential. This would allow the Commission to refer to the evidence to the extent necessary in the reasoning, without breaching the orders. 13 Mr Barnes did not oppose the application, on the basis of the assent to the two caveats outlined earlier. 14 On the basis of the argument advanced by Mr Moorhouse, and not opposed by the respondent, I am firmly of the view that, in the circumstances outlined the interests of justice would be served if a non-disclosure order is made by the Commission, with the agreed caveats, in the following terms as sought, with minor adjustment to accommodate the suggested change to 1(a) to insert the word "published". ORDERS AS TO CONFIDENTIALITY 1. Until the final determination of proceedings in IRC 1774 of 2007: (a) There shall be no publication of the Privileged Evidence, including without limitation no publication by means of the inclusion of the Privileged Evidence in any published judgment of this Honourable Commission. (b) Any affidavits or statements which include the Privileged Evidence, and any transcript or other record of evidence which refers to the Privileged Evidence, shall be maintained by the Registry in a separate file marked 'confidential' and accompanied by a copy of these orders. Access to that separate file shall be limited to the parties and their legal representatives. (c) The Privileged Evidence shall not be made public by the parties or their legal representatives. For the purposes of this Order, the "Privileged Evidence" means any written or oral evidence, including proposed evidence, of any without prejudice offers made in connection with these proceedings which also related to or encompassed the settlement of the applicant's rights, claim or cause of action under s.106 of the Industrial Relations Act 1996. For the purposes of Order 1(a) "publication" shall mean issuing, distributing or communicating, or causing to be issued, distributed or communicated, other than to the parties, their officers or their legal representatives, or as required for the preparation for and hearing of the costs applications filed by each party on 19 November 2007. 1A Any person to whom the Privileged Evidence is provided in connection with the preparation for or hearing of the costs applications shall be informed of these orders, and the obligation to avoid any publication of the Privileged Evidence imposed by these orders. 15 The cost applications are now to proceed to hearing on that basis and as per the directions given for the filing of evidence. J P Murphy 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.