Industrial Relations Commission New South Wales Medium Neutral Citation: Dr A v Health District (No 4) [2014] NSWIRComm 56 Hearing dates: 30 October 2014 (on the papers) Decision date: 21 November 2014 Jurisdiction: Industrial Relations Commission Before: Boland AJ at [1], Stanton C at [46], Newall C at [47] Decision: The Full Bench makes the following order: (1)The appellant's application for costs of the appeal and costs of the proceedings giving rise to the appeal is dismissed Catchwords: COSTS - Applicant by appellant for costs of appeal and costs of proceedings giving rise to appeal - Consideration of s 181(2) of the Industrial Relations Act 1996 - NON-DISCLOSURE ORDER - Whether application by respondent to lift non-disclosure order was frivolous or vexatious or without reasonable cause thereby warranting an award of costs against the respondent - Application dismissed Legislation Cited: Industrial Relations Act 1996 Cases Cited: Attorney General v Bar-Mordecai [2004] NSWSC 1277 Attorney-General v Wentworth (1988) 14 NSWLR 481 Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 Bar-Mordecai v State of New South Wales; Bar-Mordecai v Attorney General (NSW); [2012] NSWCA 207; (2012) 83 NSWLR 125 Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648; (1999) 93 IR 1 Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72 Dr A and Health District [2014] NSWIRComm 28 Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400 General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] HCA 69; (1964)112 CLR 125 Harry Day v John Smidmore (No 2) [2005] NSWIRComm 406; (2005) 149 IR 80 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 Kanan v Australian Postal & Telecommunications Union [1992] FCA 366; (1992) 43 IR 257 Local Health District v Hargreaves [2012] NSWIRComm 123 Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273 Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66; (2004) 134 IR 149 Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 Re Vernazza [1960] 1 QB 197 Category: Costs Parties: Dr A (Appellant) Health District (Respondent) Representation: A Moses SC with Y Shariff of counsel (Appellant) K Nomchong SC with A Britt of counsel (Respondent) Tresscox Lawyers (Appellant) Lander and Rogers Lawyers (Respondent) File Number(s): IRC 275 of 2014 Decision under appeal Date of Decision: 2014-04-02 00:00:00 Before: Harrison DP File Number(s): IRC 715 of 2013 DECISION OF THE COMMISSION 1BOLAND AJ: This decision deals with the question of costs arising from appeal proceedings in Dr A and Health District [2014] NSWIRComm 28 ("Dr A (No 1)"). In those proceedings the Full Bench upheld an appeal by the appellant, Dr A, against a decision of Harrison DP in which his Honour determined that there was no basis to continue certain non-disclosure orders made by Haylen J on 28 August 2013. 2It had been alleged by the respondent that Dr A was guilty of misconduct in that, inter alia, he forcefully applied a pillow to the face of a patient in response to the patient spitting at Dr A. Dr A denied the allegation. The respondent carried out an investigation into the alleged misconduct and it was found that the allegation was sustained. The respondent's Chief Executive, in a letter dated 14 August 2013, indicated that a recommendation had been made to him that Dr A's employment be terminated and that he was minded to accept that recommendation. Dr A was given a period of seven days to provide reasons why this course should not be taken. 3What followed is relevantly described at [13]-[17] and [23]-[25] of Dr A (No 1): [13] On 27 August 2013, Dr A commenced proceedings pursuant to s 84 of the Industrial Relations Act 1996 ("the IR Act"). It was asserted in the application for relief that the Chief Executive's letter of 14 August 2013 was a threat to terminate Dr A's employment. It was further asserted the threatened termination would be "harsh, unreasonable and unjust." At the same time, Dr A filed a notice of motion seeking an injunction restraining the threatened termination of his employment, an expedited hearing and non-publication orders. [14] On 28 August 2013, the proceedings were listed for hearing before Haylen J. At the hearing on 28 August 2013, the respondent indicated that it was prepared to give an undertaking that it would not take any steps to terminate Dr A's employment unless it provided seven days' notice of such an intention. The respondent's solicitor, acting on instructions of Ms S Litchfield, a Senior Human Resources Executive with the respondent, further indicated that: Although we don't seek any order in relation to restricting publication, if the Commission sees fit to make one we don't oppose that, nor in respect of the specific orders that your Honour mentioned about the naming of the others involved in the incident and those who were there as set out in paragraph 4. We don't have any objection to those matters if the Commission sees fit to do so. [15] Haylen J then made non-publication orders, or as they have been referred to in the proceeding, Pseudonym Orders. Order 3 was in the following terms: (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. [16] On 27 August 2013, Dr A responded to the letter from the Chief Executive of the respondent dated 14 August 2013. On 6 November 2013, the Chief Executive made a decision to terminate Dr A's employment pending the determination of the unfair dismissal proceedings. On 10 September 2013, a conciliation conference was held before Haylen J, but it was unsuccessful in resolving the matter. On 12 December 2013, the unfair dismissal proceedings were listed for final hearing commencing on 7 April 2014. [17] By notice of motion filed by the respondent on 24 March 2014 the respondent sought a lifting of the non-disclosure orders. The ground upon which the respondent relied 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. ... [23] Harrison DP gave an ex tempore decision upholding the respondent's motion. His Honour determined that orders 3(a), (b) and (c) of the orders made by Haylen J should be revoked. The transcript where Harrison DP dealt with the motion reads as follows: HIS HONOUR: I am asked by Notice of Motion to vary a suppression order made by Haylen J in this matter. I am taken to the affidavit of Mr Chapman that was before his Honour on that occasion and note that that affidavit is primarily dealing with urgency and goes to the question of confidentiality in his suppression order in para 17 thereof, which refers to the risk of prejudice to reputation and the reputation of other persons involved in the matter. The order was made by Haylen J without objection. There is now objection. To the extent that it is suggested that the respondent is held by any concessions or positions it took in conciliation, is rejected. There is no binding position in conciliation and no waiver, in my opinion. The legislation encourages parties to make concessions and move into conciliation for the purposes of settlement. That approach should not be discouraged. MOSES: Your Honour, so it is clear, the order was not opposed during the hearing of the motion; that did not occur during the conciliation. If your Honour looks at the transcript it was done during the hearing of the motion. HIS HONOUR: I note that. MOSES: I apologise for interrupting. HIS HONOUR: I note that and I am dealing with the proposition that there is a waiver which I know was not ultimately pressed in final submissions. 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. [24] Senior 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. [25] The application for leave to appeal and appeal from the decision and orders of Harrison DP 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. In Dr A and Local Health District [2014] NSWIRComm 18, Boland AJ granted the stay (not opposed by the respondent) and made orders in the following terms: (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. 4The main reasons for the Full Bench concluding that Harrison DP had erred are set out at [63]-[66] and [73] of Dr A (No 1): [63] The issue that the Deputy President needed to come to terms with, but did not, was whether circumstances had changed since the time Haylen J made the orders in August 2013 that would provide the basis for revoking the orders. Clearly, the fact that the respondent might "prefer the matter to proceed in the usual way" (whatever that might mean) was not a proper basis to revoke the orders. [64] In the absence of any indication to the contrary, Harrison DP was required to accept that Haylen J understood the basis upon which the non-disclosure orders were to be made and that the orders were regularly made under s 164A(3). It was not contended that Haylen J had no basis upon which to make the orders. In that respect, we note that whilst the respondent did not oppose the non-disclosure orders being made, the solicitor for the respondent indicated to his Honour that it was a matter for the Commission whether the orders should be made. That is to say, it was a matter for Haylen J to be satisfied it was necessary to make the orders in the interest of justice and not on the basis there was no opposition to the making of the orders. [65] Whether or not the respondent withdrew from its position of non-opposition to the orders because it preferred that the matter proceed in the usual way, whether or not it was bound by the position it adopted of non-opposition and whether or not that position was expressed in conciliation proceedings, does not seem to us to be of any relevance to the question of whether there was a basis in accordance with the statute to revoke the orders. That basis was that the Commission had to be satisfied there was a change in circumstances since Haylen J made his orders such that it was no longer necessary in the interests of justice to maintain the orders. Nowhere did the Deputy President articulate that as the reason for his decision to revoke. [66] To the extent the Deputy President considered the respondent was entitled to change its position and that was relevant to the question he had to decide, his Honour erred. ... [73] The question remains whether, despite the errors at first instance, the appeal should be dismissed. To do so, of course, would leave the Deputy President's decision and orders in place. There is no justification for doing so in circumstances where it has not been shown that there has been such a change in circumstances since Haylen J made the non-disclosure orders that we could be satisfied it is no longer in the interest of justice to maintain the orders. 5The orders made by the Full Bench were as follows: (1)Leave to appeal is granted. (2)The appeal is upheld. (3)The decision and orders of Harrison DP are set aside. 6The Full Bench made no order regarding costs, although it is to be noted the appellant, in his submissions to the Full Bench, sought to reserve his position regarding costs. The respondent took no issue with the Commission's power to now deal with the application for costs for both its application seeking to vacate the non-disclosure orders and the subsequent appeal proceedings. However, the respondent opposed the applications on other grounds. 7The Commission's power to deal with costs is governed by s 181 of the Industrial Relations Act 1996 ("IR Act"). Section 181 is in the following terms: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if: (i) the industrial agent fails to file a certificate as required by section 90A, or (ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. (3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations). (3A) Despite subsection (1), the Commission may not award costs in proceedings under Part 7 of Chapter 2. Note. This subsection does not prevent the award of costs in appeals relating to questions of law in relation to public sector promotional and disciplinary matters under section 197B. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 8The Commission's jurisdiction (as distinct from the Commission in Court Session) is essentially a non-costs jurisdiction. There are limited exceptions, which are prescribed in s 181(2) of the IR Act. If one or more of the tests required by s 181(2) are met in any particular case it then becomes a matter for the Commission's discretion whether to award costs: s 181(1)(b). 9The appellant relied on ss 181(2)(a) and (b) of the IR Act. That means the onus falls on the appellant to satisfy the Commission that: (1)the respondent's application to vacate the non-disclosure orders made by Haylen J was frivolous or vexatious; and/or (2)the application was instituted without reasonable cause; and (3)having found either (1) or (2), the Commission should exercise its discretion to award costs in relation to the application to vacate and the consequential appeal proceedings. See Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209; Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400; and s 181(4). 10In Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66; (2004) 134 IR 149, the Full Bench examined the reference to "vexatious" in s 181(2)(c) and in doing so cited the following passage from Attorney-General v Wentworth (1988) 14 NSWLR 481 per Roden J at 487: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues for which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of a motive of a litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless. 11The same passage was approved and applied by the Full Bench in Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 at [32] in its consideration of ss 181(2)(a) and (b). 12In Peden, the Full Bench also considered the word "frivolous" as it is used in s 181(2)(c). After referring to General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] HCA 69; (1964)112 CLR 125 at 129-130 and Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648; (1999) 93 IR 1, the Full Bench stated at [20]: [20] In light of the well established line of authority, and the ordinary meaning of the word "frivolous", we are satisfied that an application under s 84 will be frivolous if, on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter. 13We see no difference between the use of the phrase "frivolous or vexatious" in s 181(2)(c) and its use in s 181(2)(a). 14In Re Operational Ambulance Officers, the Full Bench, at [31]-[32], also referred with approval to what Wilcox J said in Kanan v Australian Postal & Telecommunications Union [1992] FCA 366; (1992) 43 IR 257 at 264-265 in respect of the phrase "without reasonable cause": [29] It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where it appears that, on the applicant's own version of the facts, it is clear that the proceedings must fail, it may properly be said that the proceedings lacks a reasonable cause. 15The mere fact that an applicant was unsuccessful in its application does not, of itself, make the application frivolous or vexatious or one that is pursued without reasonable cause. Additionally, it is to be noted that s 181(2)(b) requires that in considering the applicability of the phrase "without reasonable cause", as Wilcox J pointed out in Kanan, it is to be done "upon the facts apparent to the applicant at the time of instituting the proceedings." Appellant's submissions 16As we have mentioned, on 24 March 2014 the respondent moved the Commission for an order that the non-disclosure order made by Haylen J be varied with the effect of revealing the identities of the appellant, respondent and other health professionals involved in the pillow incident. 17The appellant submitted that the Notice of Motion filed by the respondent (which in turn gave rise to the appeal proceedings) was frivolous or vexatious. Further, that the proceedings relating to the Notice of Motion were instituted without reasonable cause and, as a consequence, required that the matter be further pursued in the appeal proceedings. 18The appellant relied on the following grounds: (1)The respondent had the onus of establishing that the non-disclosure order should be revoked or varied. In order to discharge that onus it was necessary for the respondent to adduce relevant evidence. (2)The only evidence relied upon by the respondent was the evidence of Ms Litchfield, Senior Human Resources Executive with the respondent. In her affidavit, Ms Litchfield gave evidence (by way of a bare assertion) that the Respondent "objects" to the non-disclosure order and would "prefer" the more "usual" regime. During the hearing, Ms Litchfield was cross-examined and gave evidence to the effect that the change in the respondent's position came about due to the conclusion of the "conciliation stage" of the process. (3)This evidence was not a proper basis upon which to conclude that the orders made by Haylen J should be disturbed. All it reflected was a change in tactical position for reasons that have never been adequately explained by a government body, which is subject to model litigant obligations: e.g., see Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273 at [16]-[20] per Basten JA (with Giles and Bell JJA agreeing). (4)The effect of the evidence relied upon by the respondent before Harrison DP was inconsistent with the position that the respondent's solicitor had represented to Haylen J on 28 August 2013. In particular, although Ms Litchfield gave evidence to the effect that the respondent made a decision that the non-disclosure order would not be opposed prior to and during the conciliation stage of the proceedings, the respondent's solicitor said nothing about a concession being made for the purpose of conciliation at the hearing before Haylen J. The respondent's solicitor did not indicate that there was any qualification (as was later asserted by Ms Litchfield) in the position that the respondent had taken in relation to the non-disclosure order. (5)There had been a considerable delay by the respondent in making the application to vary the non-disclosure order. The conciliation had concluded on 10 September 2013. Despite this, no application was made to vary the non-disclosure order until more than six months later and within a short period prior to the hearing being due to commence on 7 April 2014. (6)The fact that the respondent wished for tactical reasons to change its position was not a proper basis upon which to revoke the non-disclosure order. (7)In light of the above circumstances and that there had been no change to the position that prevailed in August 2013, it is open to the Commission to conclude that the proceedings had been brought for collateral purposes which related to a tactical decision to place increased pressure on the appellant leading up to the hearing in the substantive proceedings and otherwise cause him further annoyance, embarrassment and humiliation. Accordingly, it was frivolous or vexations and, otherwise, an application made without reasonable cause. These were unreasonable acts that caused the appellant to incur costs. Respondent's submissions 19The respondent submitted that s 181(2)(b) of the IR Act applied only where party has "instituted proceedings". There is a distinction between the "institution of proceedings" and the taking of a step in proceedings that are already before a court: Attorney-General v Wentworth at 491 Interlocutory proceedings such as the Notice of Motion are not properly characterised as the institution of proceedings: Attorney-General v Wentworth at 491-492; Bar-Mordecai v State of New South Wales; Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207; (2012) 83 NSWLR 125 at [39]. Accordingly, s 181(2)(b) cannot apply. 20In the event the Full Bench did not accept the foregoing submission, the respondent made submissions regarding the merits of the Notice of Motion. In that respect, the respondent referred to the conclusions of the Full Bench in Dr A (No 1) as follows: (1)the decision of Harrison DP was tainted by error for the reason that, inter alia, his Honour failed to set out any material findings of fact and any conclusions or ultimate findings of fact reached and failed to identify the relevant legal principles he applied to the fact (at [32]); (2)There is no indication in his Honour's ex tempore decision as to what his Honour understood to be "the risk of prejudice to reputation..." having regard to Dr [A]'s position (at [45]); (3)DP Harrison was obliged to consider the question of whether making public the identity of Dr [A] would, or would have the potential, to seriously jeopardise his career and livelihood as a medical practitioner in circumstances where the allegations against the doctor are yet to be tested before the relevant tribunal and there is no indication in the record of proceedings that his Honour undertook this exercise (at [52]); (4)There is nothing in DP Harrison's decision to show whether he considered the impact of revealing Dr [A's] identity on his career prospects or ability to earn his livelihood as a medical practitioner or whether it might affect the practicability of reinstatement or the possible effect his order may have on revealing the identity of the patient (at [57]); (5)It was not evident that DP Harrison undertook the necessary balancing exercise (at [58]); (6)DP Harrison failed to come to terms with whether circumstances had changed since the time Haylen J made the orders in August 2013 that would provide the basis for revoking the orders (at [63]); (7)DP Harrison had to be satisfied there was a change in circumstances since Haylen J made his orders such that it was no longer necessary in the interests of justice to maintain the orders and he failed to articulate that as the reason for his decision to revoke; Further, no such change in circumstances was present (at [73]); and (8)DP Harrison erred in failing to provide adequate reasons (at [70]). 21The respondent submitted that the Notice of Motion was not frivolous or vexatious nor, if the Notice of Motion constituted an institution of proceedings (which was denied), that it was instituted without reasonable cause in circumstances where: * prior to the determination of the Appeal there was no authority for the proposition that a party seeking to revoke or vary a non-disclosure order is required to provide its reasons for the making the application or its timing; * Haylen J had given no reasons for the original suppression order; * the clear presumption is in favour of open justice; * the exceptions to the principle of open justice are strictly defined and applied sparingly; and * prior to the determination of the Appeal there was no authority that it was an insufficient basis to seek to vary a suppression order so that a matter would proceed in the usual way i.e. to now oppose an order that was not initially opposed by the Respondent. 22It was further submitted: The Full Bench based its decision (in part) on its finding that making public the identity of Dr [A] would, or would have the potential, to seriously jeopardise his career and livelihood as a medical practitioner in circumstances where the allegations against the doctor were yet to be tested before the Commission (which appears to be a conclusion based in part on the affidavit of Mr Chapman and s 163(1)(c) of the Act). This was a contested question of fact which the Full Bench considered took the matter outside the established principles that non-disclosure orders, such as pseudonym orders, are not to be ordered merely to protect persons from injury, hurt, embarrassment or distress. Accordingly, the Full Bench ought not find that the Notice of Motion or the Appeal were vexatious, frivolous or brought without reasonable cause. 23The respondent addressed the appellant's submission that the evidence of Ms Litchfield reflected a change in tactical position for reasons that were not adequately explained by a government body subject to model litigant obligations. The respondent submitted that there was no evidence to support that contention. Further, that there was no evidence the Notice of Motion was filed: (1)simply for the purpose of wasting time or for causing delay; (2)instituted with the intention of annoying, harassing or embarrassing a party; and/or (3)brought for a collateral purpose. 24Instead, it was submitted that the evidence of Ms Litchfield was that the respondent had not contested the original application for the suppression orders only to facilitate early negotiations, but that once the conciliation had failed, the respondent did not believe there was any proper basis for the continuation of the suppression orders and that the usual process of open justice should apply to the proceedings. 25The respondent further submitted: * There is no evidence in the present case that the Respondent filed the Notice of Motion with any intention other than to have its claim determined by the Commission. * The requirements in ss. 181(2)(a) and (b) pose high thresholds and in this matter, those thresholds have not been met. * Both the Notice of Motion and the Appeal depended upon the determination of disputed facts and the resolution of arguable points of law. In such circumstances the matters were within jurisdiction and required determination on their merits. In particulars, the Notice of Motion was not "bound to fail", "obviously untenable" or "manifestly groundless". * The Commission should not allow itself to be influenced by the result of a properly brought but unsuccessful claim. * The conduct of the Respondent was not such so as to open the jurisdictional gateway for a costs order. * The Commission should dismiss the Appellant's application for costs in relation to both the Notice of Motion and the Appeal. Consideration 26A threshold issue is whether the respondent's Notice of Motion to vary the non-disclosure order may properly be characterised as the institution of proceedings for the purpose of s 181(2)(b) of the IR Act. In Attorney-General v Wentworth at 491-492, Roden J said in relation to the institution of proceedings: There is a distinction between the institution of proceedings, and the taking of a step in proceedings that are already before the court. The importance of that distinction is recognised in Commonwealth Trading Bank v Inglis, and an appreciation of it is necessary to an understanding of the circumstances for which s 84, and its counterparts elsewhere, are designed. In Hunters Hill Municipal Council v Pedler, Yeldham J (at 485-488) considered a number of English decisions on the point. They were also referred to in argument before me, but I do not find it necessary to indulge in a further analysis of them. Yeldham J's conclusion was expressed in these terms (at 488): "... While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form." With respect, I adopt the final sentence of that passage. I regard Commonwealth Trading Bank v Inglis as authority for the proposition that interlocutory proceedings taken in the course of an action, no matter by whom they are instituted, are subject to the inherent power of the court to protect its process from abuse. In so far as they are interlocutory proceedings in a pending action, they are not, in my view, proceedings instituted for the purposes of s 84. However, if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings, they are capable of being so regarded, even if they are properly commenced by notice of motion in existing proceedings. Like many before me, I decline the opportunity to produce a definition of "the institution of proceedings" for present purposes, a task described as "almost impossible" by Willmer LJ in Re Vernazza. 27In Bar-Mordecai, after referring to a decision of Patten AJ in Attorney General v Bar-Mordecai [2004] NSWSC 1277 and a statement of Ormerod LJ in Re Vernazza [1960] 1 QB 197 at 487, Basten JA (with whom Beazley JA and Sackville AJA agreed) stated at [39]: [39] The reasoning adopted by Patten AJ is consistent with the view that the institution of proceedings, which his order prohibited absent leave, extended to the initiation of any proceeding in any court, any form of application which sought to reopen, review or appeal from an existing determination, but not to a routine interlocutory order in extant proceedings. 28The respondent's Notice of Motion seeking to alter an existing determination of Haylen J readily fits within the description of "...an attempt to re-litigate what has already been decided..." and also within the description of an "application which sought to reopen, review or appeal from an existing determination". 29In our opinion, the respondent, by its Notice of Motion, "instituted proceedings" within the meaning of s 181(2)(b) of the IR Act. 30The respondent contended that prior to the determination of the appeal there was no authority for the proposition that a party seeking to revoke a non-disclosure order was required to provide reasons for the making of the application or its timing. It was also submitted that prior to the determination of the appeal there was no authority that it was an insufficient basis to seek to vary a suppression order so that a matter would proceed in the usual way. 31As to the first contention, we find it hard to imagine any court or tribunal would make an order to revoke an extant non-disclosure order without being provided with some ground upon which that should occur, such as a material change in circumstances or new evidence coming to light that made it inappropriate to continue the order. 32The change in circumstances relied upon by the respondent (and, it seems, Harrison DP) was that in order to facilitate conciliation the respondent conceded to the making of a non-disclosure order, but as conciliation was unsuccessful and the matter was to proceed to arbitration, the arbitration should proceed in the "usual way" in the absence of a non-disclosure order. The Full Bench found that this was not a proper basis upon which to revoke the non-disclosure order (at [63]) and of itself did not constitute a basis upon which the respondent could reasonably believe it had reasonable prospects of success. 33However, it was not the case that the respondent provided no grounds to support its application. Its ground for revoking the order relating to Dr A and other witnesses was that "[t]here is no proper justification for the continuation of the suppression orders..." 34What the respondent meant by "no proper justification" was explained in its submissions. Firstly, that the clear presumption is in favour of open justice and the exceptions to the principle of open justice are strictly defined and applied sparingly: see, for example, Harry Day v John Smidmore (No 2) [2005] NSWIRComm 406; (2005) 149 IR 80 and Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72. Therefore, in the absence of any reason why the orders should continue, the open justice principle should have paramountcy. 35Secondly, that there was no evidence of harm to Dr A's reputation let alone the impact on his career and livelihood. Therefore, the interests of justice required the open justice principle to be applied and the non-disclosure order revoked. 36The respondent's Notice of Motion, therefore, was not devoid of merit. The open justice principle is a "stringent principle" (John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 at 142-143 per Kirby P) and it was not an unreasonable expectation on the part of the respondent that in the absence of justification to the contrary, the non-disclosure order would be lifted. Indeed, Harrison DP did lift it in respect of Dr A and other witnesses, although his Honour gave no reasons other than to say "there is no basis in this matter to continue the suppression order in respect to the applicant and witnesses." 37As we mentioned, the respondent had contended there was no evidence of harm to Dr A's reputation, let alone the impact on his career and livelihood. There was some evidence about harm to reputation, but it was not extensive and it was not unreasonable for the respondent to believe what evidence there was, was not sufficient to overcome the open justice principle. However, the Full Bench held that it was not bound by the rules of evidence (at [51]) and that: [I]n exercising the obligation to act with equity and in undertaking the balancing exercise required by s 164A(3) in weighing up the fundamental public interest in maintaining a system of open justice against the interest of Dr A, Harrison DP was obliged to consider the plainly obvious question of whether making public the identity of Dr A would, or would have the potential, to seriously jeopardise his career and livelihood as a medical practitioner in circumstances where the allegations against the doctor are yet to be tested before the relevant tribunal. 38In that regard, the Full Bench stated at [50]: [50] ... It seems to us no small thing for a medical doctor of some 23 years' standing to be accused of what is tantamount to criminal assault of a patient. If the doctor's identity were made public it would undoubtedly have a strong potential to undermine the confidence of the public and the profession in the doctor. 39In our opinion, it could not be concluded that upon the facts apparent to the respondent at the time of instituting the proceedings, there was no reasonable prospect of success. Accordingly, we are unable to find the respondent instituted the proceedings without reasonable cause. 40We turn to the appellant's reliance on s 181(2)(a). There is not a sufficient foundation upon which the Full Bench could find on the balance of probabilities that the respondent's application to vary the non-disclosure orders made by Haylen J was: (1)instituted for the purpose of wasting time or for causing delay; (2)instituted with the intention of annoying, harassing or embarrassing a party; and/or (3)brought for a collateral purpose. 41In order to find that the respondent had intended any one of the foregoing, the Full Bench would be required to draw inferences that would be unreasonable given the lack of foundation for doing so. For example, there is no satisfactory evidence to suggest the respondent intended by its application to annoy, embarrass or harass Dr A by making his name public and associating it with an allegation that he forcefully applied a pillow the face of an elderly patient. The only possible way that intention might be inferred is if it could be demonstrated there was a complete absence of any other motive for the application. 42The same applies to the collateral purpose submission. There was no probative evidence that the respondent intended to adopt the tactic of applying for a lifting of the suppression order to place pressure on Dr A to discontinue his application under s 89(7) of the IR Act and resign in order to avoid the ignominy of the allegations against him becoming public. The Full Bench might only draw an inference to that effect if it could be concluded that the grounds relied upon for the application were spurious, thereby necessitating a search for the respondent's real motive. 43The delay by the respondent in seeking the revocation of the non-disclosure order is somewhat troubling, as is its non-opposition to such an order in the conciliation proceedings followed by a change of heart when faced with arbitration. These matters might have been relevant to drawing the inferences we have referred to in the preceding two paragraphs if it was not apparent the respondent had a reasonable basis for seeking the revocation order. We have found such a basis existed. Accordingly, the appellant is unable to rely on s 181(2)(a) of the IR Act. 44As there is no basis upon which the appellant could be awarded costs in relation to the Notice of Motion, the submission that the appellant was unreasonably put to the expense of conducting an appeal cannot succeed. 45I would propose the following order: (1) The appellant's application for costs of the appeal and costs of the proceedings giving rise to the appeal is dismissed. 46STANTON C: I agree with the reasoning and order proposed by Boland AJ. 47NEWALL C: I have had the benefit of reading the decision and order proposed by Boland AJ in draft form. I respectfully agree with his Honour's reasoning and with the order proposed. 48I feel obliged, however, to add this. 49I have given serious consideration to whether an inference is available that the proceedings in question were instituted for a 'collateral purpose' as that term was explained in Attorney-General v Wentworth (1988) 14 NSWLR 481; to wit, in the instant case, to bring pressure to bear on Dr A with respect to his application. If that inference were drawn, the proceedings could properly be regarded as 'vexatious' within the meaning of s 181(2)(a) of the Industrial Relations Act 1996, with potential consequences in costs. 50In particular, I have considered whether the inference is available from the fact that no other, nor indeed any, explanation for the respondent's change in approach after the conciliation was advanced in evidence, while at the same time the respondent steadfastly declined to disclose the advice upon which that decision to change tack was based. I observe that that was in circumstances where the respondent bore the obligations of a model litigant. 51However, I necessarily accept that it would be unreasonable to proceed on the basis of that inference. A finding that a course was chosen for a collateral purpose, indeed any finding of such a serious kind, cannot properly be made unless the inference is compelling and not merely indirect; that it leads in a "convincing way" to the finding concerned. See, for example, Local Health District v Hargreaves [2012] NSWIRComm 123 at [44]. 52The order proposed by Boland AJ is, in my respectful view, the correct order. Orders 53The Full Bench makes the following order: (1)The appellant's application for costs of the appeal and costs of the proceedings giving rise to the appeal 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: 21 November 2014