Industrial Relations Commission New South Wales Medium Neutral Citation: Dr A and Local Health District [2014] NSWIRComm 18 Hearing dates: 3 April 2014 Decision date: 15 April 2014 Jurisdiction: Industrial Relations Commission Before: Boland AJ Decision: I confirm the orders made in these proceedings on 3 April 2014, namely: 1. The decision, orders and directions made by his Honour Deputy President Harrison on 2 April 2014 in respect of orders made by his Honour Haylen J on 28 August 2013 are stayed pending the hearing of this appeal. 2. The hearing of the appellant's substantive application before his Honour Deputy President Harrison due to commence on 7 April for four days is vacated. 3. The hearing of this appeal be expedited. Catchwords: APPEAL - Application by medical practitioner for leave to appeal and appeal from a decision revoking non-publication orders made under s 164A of the Industrial Relations Act 1996 - INTERLOCUTORY PROCEEDINGS - Stay sought of orders under appeal - Respondent not opposed to stay - If stay not granted appeal likely to be rendered nugatory - Arguable appeal grounds - Stay granted Legislation Cited: Industrial Relations Act 1996 Evidence Act 1995 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406 Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236; (2000) 102 IR 192 Category: Interlocutory applications Parties: Dr A (Appellant) Local Health District (Respondent) Representation: A Moses of Senior Counsel with Y Shariff of counsel (Appellant) K Nomchong of Senior Counsel with A Britt of counsel (Respondent) TressCox Lawyers (Appellant) Lander & Rogers Lawyers (Respondent) File Number(s): IRC 275 of 2014 INTERLOCUTORY DECISION 1On 28 August 2013, in Matter No IRC 715 of 2013, Haylen J made orders that the respondent, which I shall continue to refer to as the Local Health District, not take any steps to terminate the employment of the appellant, whom I shall continue to refer to as Dr A. Additionally, pursuant to s 164A of the Industrial Relations Act 1996, his Honour assigned pseudonyms to the appellant (Dr A), the respondent (Local Health District), a patient of the respondent and other professionals involved in or who were witnesses to an incident that allegedly led the respondent to threaten the appellant with dismissal from employment. The incident allegedly involved the appellant endangering the safety of an elderly patient. 2On 2 April 2014, Harrison DP decided there was no basis to continue a non-disclosure order made by Haylen J on 28 August 2013. The appellant sought leave to appeal and if leave were granted, to appeal from the decision of Harrison DP. The appeal application was filed on 3 April 2014, together with an affidavit of urgency seeking a stay of his Honour's decision, orders and directions regarding the lifting of the non-publication orders. 3The grounds of appeal were that: 1. DP Harrison erred by failing to give adequate reasons for (a) making orders revoking/varying the orders of Haylen J, and (b) making an order that the recommendation of Ms Blake was subject to legal professional privilege; 2. DP Harrison erred in reasoning that the orders made by Haylen J should be varied / revoked by reason of a position taken by the Respondent during or for the purpose of a conciliation in circumstances where no such condition by the Respondent was disclosed to the Court when not opposing the order made on 28 August 2013; 3. DP Harrison erred by effectively finding that the Respondent had discharged its onus in seeking to revoke/vary the orders made by Haylen J; 4. DP Harrison erred by finding that (a) the recommendation of Ms Blake was subject to legal professional privilege, and (b) by failing to properly consider or decide the question as to whether any privilege in the document had been waived; 5. DP Harrison erred by denying the Applicant natural justice by not permitting him access to the redacted version of the recommendation that set out the alleged reasons for seeking to revoke or vary the orders made by Haylen J in circumstances where the Respondent had waived any legal professional privilege that attached to the recommendation; 6. DP Harrison erred by failing to consider and determine the submissions made by the Applicant that the revoking or varying of orders made by Haylen J would have a detrimental impact upon either the practicability of reinstatement of the Applicant or his future employment given the nature of the untested allegations; 7. DP Harrison erred by failing to consider and determine the submissions made by the Applicant that the revoking or varying of orders made by Haylen J would have the tendency of revealing the identity of the patient or disclosing key issues relating to the treatment of the patient; 8. DP Harrison erred by finding that the orders made by Haylen J should be revoked/varied. 4This interlocutory decision deals with the stay application, which was heard on 3 April 2014. On that day, the Commission made orders granting a stay. This decision provides the reasons for so doing. 5The relevant orders of Haylen J were as follows: 3. An order that: (a) the Applicant be referred to in the proceedings as Dr A; (b) the Respondent be referred to in the proceedings as the Health District; (c) the patient identified in the Applicant's Unfair Dismissal Application be referred to as Patient 1; (d) the other professionals identified in the Applicant's Unfair Dismissal Application be referred to as Dr B, Dr C, RN 1 and RN 2. In addition to the non-publication orders, Haylen J listed the matter for conciliation and directions on 10 September 2013. The conciliation was unsuccessful. 6On a notice of motion filed by the respondent on 24 March 2014, Harrison DP determined that orders 3(a), (b) and (c) should be revoked. In an ex tempore decision his Honour relevantly stated: I turn to the reasons or the basis upon which a suppression order should be issued and the principles that apply. I find that there is no basis in this matter to continue the suppression order in respect to the applicant and witnesses. There is, of course, a basis to suppress the identity of the patient. I so determined. I will vary the order as required by the Notice of Motion. [Counsel for the applicant on the motion] should by the close of business on Friday of this week file the appropriate draft order and it will be made. 7Senior counsel for the appellant sought a 24-hour delay before the orders were to take effect in order to allow the appellant an opportunity to consider whether to appeal. His Honour duly granted the extension. 8The ground upon which the respondent sought a lifting of the non-disclosure orders was that: 1. There is no proper justification for the continuation of the suppression orders for Dr A or any other witnesses who may be involved in the proceedings save that the Local Health District agrees that suppression or non-publication orders should continue in relation to the name of the patient and any information that may reveal his identity. 9In support of the respondent's motion before Harrison DP to lift the non-publication orders, the respondent filed an affidavit of Sharon Litchfield. Ms Litchfield is, apparently, a senior human resources executive with the respondent. Ms Litchfield deposed that at the time of the proceedings before Haylen J the respondent: 5 [D]id not object to the making of the [non-publication] order in light of the urgency of the proceedings, the threat of dismissal and the prospect of conciliation. 6. Now that the matter is being prepared for hearing the respondent objects to the continuation of the non-disclosure and prefer (sic) the matter to proceed in the usual way. 10Ms Litchfield was required for cross-examination by the appellant. Ms Litchfield was asked questions about the reason why the respondent changed its position from one of not opposing non-publication orders before Haylen J to one of seeking to have the orders revoked. Ms Litchfield was also cross-examined about why there was such a delay between decision to seek revocation (apparently in November 2013) and when the respondent's lawyers were instructed to file a motion seeking the lifting of the orders (apparently towards the end of February 2014). 11Senior counsel called for a document prepared by one of Ms Litchfield's staff, a Ms Blake, that apparently contained the rationale for the change in the respondent's position. Privilege under s 119 of the Evidence Act 1995 was claimed and a redacted version of the document was provided to the appellant's lawyers. The privilege claim was opposed on the basis that s 119 did not apply and that, in any event, privilege had been waived by Ms Litchfield. Harrison DP upheld the respondent's claim of privilege over the redacted parts of the document and, as I indicated, proceeded to grant the respondent's application to lift the non-publication orders. 12In his application for a stay of Deputy President Harrison's decision, orders and directions, the appellant stressed the prejudice that would be caused to him if his name were made public. It was submitted he was still in the process of undergoing training for accreditation in a particular medical role and revealing very serious but untested allegations at this stage "would ruin the man". The appellant also submitted that if Haylen J's orders were revoked it would have the effect of "revealing the identity of the patient and disclosing issues relating to the treatment of the patient." 13The respondent referred to the principle of open justice and, in particular, the Full Bench's statements in that regard in Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406 at [31]-[32]: [31] The test we are obliged to apply provides that the Court may exercise its discretion to make any non-disclosure order if we are satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. The application of that test must be approached on the basis that the legislature intended to give the Court a much wider scope for exercising its discretion to make non-disclosure orders than the common law test. [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": Scott v Scott [1913] AC 417 at 441. As Gibbs J observed in Russell v Russell (1976) 134 CLR 495 at 520 (quoted in A (No 4) at [45]): This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. 14In the result, however, the respondent indicated it would not oppose the stay application provided the hearing dates for the appellant's substantive application in his unfair dismissal proceedings were vacated. Those dates, fixed by Harrison DP, were 7-10 April 2014. The appellant, albeit reluctantly, accepted that the price for the respondent not opposing the stay was vacation of the hearing dates before Harrison DP. 15The principles to be applied in respect of a stay application were helpfully summarised by Wright J, President in Re Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236; (2000) 102 IR 192 at [19]-[20]. I respectfully adopt his Honour's summary. In particular, where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694; Re Transport Industry - Waste Collection and Recycling (State) Award at [18]. Of course, to be weighed against that consideration is whether the appeal has any real prospect of success. If it does not, there is no point in granting the stay. 16In the present case there were three principal considerations in determining whether a stay should be granted. First, the respondent had stated it was not opposed to the granting of a stay, subject to vacation of hearing dates. Secondly, if the stay were not granted the appeal would be rendered nugatory. Thirdly, it could at least be said that the appellant had an arguable case on appeal. In that regard, a question for the Full Bench would seem to be, which is to prevail: the fundamental principle of open justice or the damage that could be done to the appellant's standing in the medical community and the effect on his future prospects of working as a medical practitioner if his identity is revealed at this stage of the substantive proceedings, where allegations of misconduct against the appellant are untested? 17Having regard to the foregoing considerations in particular, I granted the stay. Orders 18I confirm the orders made in these proceedings on 3 April 2014, namely: (1)The decision, orders and directions made by his Honour Deputy President Harrison on 2 April 2014 in respect of orders made by his Honour Haylen J on 28 August 2013 are stayed pending the hearing of this appeal. (2)The hearing of the appellant's substantive application before his Honour Deputy President Harrison due to commence on 7 April for four days is vacated. (3)The hearing of this appeal be expedited. ********** 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: 15 April 2014