Industrial Relations Commission New South Wales Medium Neutral Citation: Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72 Hearing dates: 5 July 2012 Decision date: 10 July 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: The Commission orders that the applicant's notice of motion seeking non-disclosure orders is dismissed. Catchwords: APPEAL - UNFAIR DISMISSAL - Appeal against refusal of tribunal at first instance to uphold unfair dismissal claim - Interlocutory application by appellant for order that decision at first instance not be published - Relevant principles to be applied in respect of non-disclosure orders - Open justice - Exceptional circumstances required for non-disclosure order to be made - No exceptional circumstances - Application refused Legislation Cited: Industrial Relations Act 1996 Cases Cited: Day v Smidmore (No 2) [2005] NSWIRComm 406; (2005) 149 IR 80 John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Rinehart v Welker [2011] NSWCA 403 Robert Buttling v NSW Department of Education and Communities [2012] NSWIRComm 60 Category: Interlocutory applications Parties: Robert Jeffrey Buttling (Applicant on the motion) NSW Department of Education and Communities (Respondent on the motion) Representation: P Ginters of counsel (Respondent on the motion) R Buttling (Applicant on the motion - in person) NSW Department of Education and Communities (Respondent on the motion) File Number(s): IRC 744 of 2012 Decision under appeal Jurisdiction: 9105 Citation: Robert Buttling v NSW Department of Education and Communities [2012] NSWIRComm 60 Date of Decision: 2012-06-28 00:00:00 Before: Kavanagh J File Number(s): IRC 368 of 2012 INTERLOCUTORY DECISION 1Robert Jeffrey Buttling, a former teacher employed by the Department of Education and Communities, was dismissed from his employment effective from 6 February 2012. Mr Buttling sought relief pursuant to the unfair dismissal provisions of Pt 6 of Ch 2 of the Industrial Relations Act 1996 ("the Act"). In Robert Buttling v NSW Department of Education and Communities [2012] NSWIRComm 60, Kavanagh J dismissed Mr Buttling's application for relief. Mr Buttling has sought leave to appeal and, if leave is granted, to appeal from her Honour's decision. 2By notice of motion, Mr Buttling has also sought a non-disclosure order under s 164A of the Act, the effect of which, if granted, would be to prohibit the publication of the decision of Kavanagh J at first instance. This decision deals with that interlocutory matter. 3Mr Buttling was self-represented. In pressing his case for the non-disclosure order he relied, as best as the Commission could understand them, on grounds that may be summarised as follows: (1)that Kavanagh J did not address in her decision matters Mr Buttling considered were important and relevant and as they were not addressed they continued to wrongly impugn his name and character; (2)that her Honour made numerous factual errors in her decision the effect of which was to fail to redress wrongs that had been committed against Mr Buttling; (3)that her Honour failed to acknowledge and correct false evidence; (4)the respondent in its case knowingly relied on false and misleading evidence including material regarding child protection matters and that her Honour relied on this information in reaching her conclusions in the matter; (5)that the decision was variously unfair and defamatory. 4In summarising the applicant's grounds I have used temperate language. In contrast, elements of the written submissions tendered by Mr Buttling in support of his application, and material I have looked at regarding the grounds of the appeal, might be regarded as scandalous and, indeed, a question of contempt may potentially arise in the appeal proceedings. It is not open to a litigant to make scandalous assertions regarding the conduct of the tribunal or counsel for the other party in the absence of clear proof of misconduct without expecting sanctions might follow. It seems to me Mr Buttling, by the documents he has filed, may have placed himself in some jeopardy. 5Turning to the application for the non-disclosure order, s 164A defines the Commission's powers to make such orders: 164A Powers of Commission as to the disclosure of matters before the Commission (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 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 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. (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. 6It will be noted the section makes a distinction between the grounds upon which the Commission may make a non-disclosure order and the grounds available to the Commission in Court Session (the Industrial Court). Relevantly, the Commission may only make such an order if it is satisfied that it is necessary to do so in the interests of justice. This test is based on the common law test: Day v Smidmore (No 2) [2005] NSWIRComm 406; (2005) 149 IR 80. Ordinarily it would not be desirable to make a non-disclosure order only because a person was embarrassed or distressed by allegations made in proceedings; the paramount consideration is the principle of open justice: Day at [32]. 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": Day at [32]. 7In Day, the Full Bench at [33] relevantly referred to the observations of Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (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. See also Rinehart v Welker [2011] NSWCA 403 at [32]-[38] per Bathurst CJ and McColl JA where it was stated: "The principle of open justice is one of the most fundamental aspects of the system of justice in Australia..." 8Section 164A(3)(b) makes it clear the Commission must be satisfied that it is "necessary" to make a non-disclosure order in the interests of justice. The use of the word "necessary" reinforces the legislative intention that such orders should only be made in exceptional circumstances: see Rinehart at [27] and John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 where Spigelman CJ (with whom Handley JA and Campbell AJA agreed) stated at [21]: [21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, e.g. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.) 9In my opinion, Mr Buttling has not demonstrated any exceptional circumstances that would justify an order that the decision of Kavanagh J not be published. Mr Buttling's objections to the decision relate, first, to alleged errors on her Honour's part. The question of whether there were errors, either factual errors or errors of law, or failure to take into account relevant evidence, or that her Honour took into account irrelevant matters or evidence that was false, or misunderstood the evidence, are matters for the Full Bench to determine on appeal. Non-disclosure orders are not a substitute for appeal proceedings. 10The second class of objection taken by Mr Buttling to the decision at first instance, despite his assertions to the contrary, is that if the decision is published it will have the effect of perpetuating alleged wrongs that have been committed against him and, in doing so, embarrass or distress him or further injure his reputation. Mr Buttling seemed particularly concerned about "child protection issues". Nothing in Kavanagh J's decision suggests in any way that her Honour found there were child protection issues reflecting adversely on the applicant. 11Her Honour was critical of the respondent's handling of matters concerning the applicant from the outset. However, her Honour concluded relief should not be granted to the applicant because of misconduct on his part in failing to comply with lawful directions and failing to comply with the respondent's Code of Conduct. Whether her Honour was right or wrong in that respect and whether her Honour made errors in arriving at her conclusions are matters for the Full Bench on appeal. 12The matters raised by the applicant in support of non-disclosure orders do not displace the fundamental principle of open justice. 13In any event, on 28 June 2012, Kavanagh J published her reasons and made orders in open hearing regarding her decision: the decision has been published and the respondent has no doubt disseminated it in accordance with its usual procedures. The only step that has not been taken is that the decision has not been posted on "NSW Caselaw" the official website for judgments and decisions of the Commission. Further, Mr Buttling seeks a non-disclosure order only in relation to the decision and does not seek to restrict access to the Commission's file or to any of the evidence in the proceedings before Kavanagh J. 14In the circumstances the Commission declines to grant the application for non-disclosure orders. Orders 15The Commission orders that the applicant's notice of motion seeking non-disclosure orders is dismissed. ********** 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: 11 July 2012