Fair Work Act 2009
s.604—Appeal of decision

Jan Zirk-Sadowski
v
The University of New South Wales
(C2022/5233)

Appeal against decision [2022] FWC 2086 of Commissioner Yilmaz at Melbourne on 8 August 2022 in matter number C2022/3039 – permission to appeal refused

Introduction

[1] Dr Jan Zirk-Sadowski (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against the ex tempore decision of Commissioner Yilmaz issued on 5 July 2022 (Decision) in which the Commissioner declined to grant an order prohibiting the publication of the names and addresses of persons appearing at the hearing and orders prohibiting the publication of evidence given in the hearing and matters contained in the documents before the Commission in relation to the hearing.

[2] The matter was listed for permission to appeal and the merits of the appeal. On 4 August 2022, directions were issued for the filing of material and the matter was listed for hearing on 6 September 2022. The Appellant indicated that he consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.

Background

[3] On 19 May 2022, the Appellant lodged an application (GP Application) pursuant to s.365 of the Fair Work Act 2009 (the Act) against the University of New South Wales (Respondent). The GP Application was filed 1004 days outside the statutory time limit provided in s.366(1) of the Act. The Appellant sought an extension of time for the filing of the GP Application in accordance s.366(2) of the Act (EOT Application).

[4] The EOT Application was listed for hearing on 5 July 2022. On 1 June 2022 the Appellant sent an email to the General Protections Team expressing an intention to make an application under s.594 of the Act. 1 That correspondence provides that the Appellant seeks de-identification of the names of the parties to the proceeding. On 30 June 2022 the Appellant sent an email to the General Protections Team and the Commissioner stating that he proposed to apply for “confidentiality orders prohibiting the publication of the names and addresses of persons appearing at the hearing and orders prohibiting the publication of evidence given in the hearing and matters contained in documents before the Fair Work Commission in relation to the hearing” pursuant to s.593 of the Act (Confidentiality Application).

[5] At the hearing the Commissioner declined to make the orders sought by the Appellant. 2 The Appellant seeks permission to appeal the ex tempore decision of the Commissioner on 5 July 2022 declining the Confidentiality Application.

[6] The Commissioner reserved her decision in relation to the EOT Application. That decision was issued on 8 August 2022. The name of the Appellant and the Respondent were published in that decision.

[7] For the reasons that follow, permission to appeal is refused.

The Decision

[8] At the commencement of the hearing the Commissioner raised the Confidentiality Application with the Appellant and asked the Appellant to address her as to it. 3 The Appellant sought that orders be made on the basis that the proceeding:

•  included information and evidence which he considered embarrassing to him, including in relation to alleged sexual harassment; 4 and

•  related to a document which was produced by the Australian Institute of Health and Welfare which he considered was used by the Respondent in an unauthorised way and which was a confidential classified document (Document). 5 He submitted that the Document was subject to “very serious regulations relating to international law on security, protected security of classified information…”6

[9] In addition, the Appellant sought to rely upon a decision of Justice Phillips, of the New South Wales Personal Injuries Commission (PIC), which he submitted prohibited publication of information in his personal injuries matter which relates to the Document (Personal Injuries Matter). 7 Further, the Appellant submitted that in Europe, where he resides, names of parties to proceedings are not included in full and he would feel safer if his name was not disclosed.8

[10] In declining to grant the Confidentiality Orders the Commissioner found that for the purposes of determining the EOT Application the Document was not relevant nor was she required to disclose its contents. 9 As to the Appellant considering some of the information and evidence to be embarrassing, the Commissioner held that this was not a sufficient basis upon which to order that the names of the parties not be disclosed.10

[11] In declining the Confidentiality Application, the Commissioner concluded as follows:

“On the matter of maintaining confidentiality of the parties, I have decided that under section 593 of the Act requires that all of our hearings are held publicly and in respect of 593(3), orders can be made in private but those would be orders that would be required that still maintain an open justice principles. In this respect, I have not heard anything that requires me to grant any particular consideration to any aspects of the proceedings that would cause harm to the parties or may be of a sensitive or confidential nature that requires me to prohibit the naming of the parties as they are.” 11

The Written Decision

[12] As set out above, on 8 August 2022 the Commissioner handed down her written decision (Written Decision). In the Written Decision the Commissioner further addressed the Appellant’s Confidentiality Application, identifying that the Appellant had written to her chambers on 1 June 2022 and 30 June 2022 in relation to the Confidentiality Application and said:

“The Applicant relies on s.594 of the Act for his application for confidentiality. Relevantly, s.594 of the Act concerns orders prohibiting or restricting the publication of evidence, names and addresses, matters contained in documents, and the whole or part of a decision. The Applicant has been informed that addresses of individuals of are not published in a decision. Further, the Applicant did not identify any confidential materials relevant to the extension of time application.” 12

[13] In relation to s.593(3) of the Act the Commissioner, relevantly, said:

“Section 593(2) of the Act provides that the Commission must hold hearings in public, except as provided by subsection (3). Subsection 593(3) of the Act allows the Commission to make orders if it is satisfied or is desirable because of the confidential nature of any evidence or for other reasons and lists those reasons. 13

…

The Applicant submitted that his evidence concerns his work on security data which may be classified information. He also states that prior proceedings in New South Wales, in the Federal Court and in other jurisdictions had de-identified him as a party because they had access to the material he describes as security classified. Consequently, he says, as his identity was not disclosed in the other proceedings, the Commission should do the same. There is no need to provide any detail concerning the work performed by the Applicant as this is immaterial to an extension of time application. Therefore, I do not consider it necessary to deidentify the parties. 14

…

The Applicant further raised the prospect of embarrassment to him because of his allegations against the Respondent. The Applicant confirmed that he now resides in Europe, having departed Australia in December 2018. The prospect of embarrassment is therefore most unlikely on the basis that this decision will be of little or no interest in a foreign country. Further, in light common law authorities concerning non-disclosure orders, I am not satisfied the Applicant’s potential for embarrassment warrants a suspension of the principle of open justice.” 15

[14] The Commissioner relied upon the decision of the Full Bench of New South Wales Industrial Relations Commission in Harry Day v John Smidmore and Others (No. 2) (2005) 149 IR 80 and the decision of this Commission in Application by Corfield, Justin James [2014] FWC 4887 where it was held that mere embarrassment, distress or damage by publicity is not a sufficient basis for the grant of a non-disclosure order and concluded as follows:

“For the reasons stated above and in view of the principles enunciated in Smidmore and Corfield, I am not satisfied that the Applicant established sufficient grounds for the granting of a confidentiality order. Accordingly, the Applicant’s request for a confidentiality order was denied.” 16

Principles on appeal

[15] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 17 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[16] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is “in the public interest to do so”. In GlaxoSmithKline Australia Pty Ltd v Makin, 18 a Full Bench identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 19

[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 20 That the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[18] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 21 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Appeal grounds and submissions

[19] In his Notice of Appeal the Appellant appeals the Commissioner’s decision on the following two grounds:

1. A significant error of fact (Appeal Ground 1); and

2. Errors of legal interpretation (Appeal Ground 2).

[20] As to Appeal Ground 1, the Appellant submits that at the hearing the Commissioner suggested that the Confidentiality Application had been made late and that his earlier correspondence of 1 June 2022 had been “omitted”. 22

[21] As to Appeal Ground 2, the Appellant submits that the Commissioner failed to have regard to the provisions of the “Privacy Act” and the Public Interest Disclosure Act 2013 (PID Act) in light of the non-publication orders made by the PIC in the Personal Injuries Matter. The Appellant says he sought to clarify these matters after the hearing. 23 In its Outline of Submissions the Appellant submits that the declination of the Confidentiality Application breaches the non-publication order made by the PIC in the Personal Injuries Matter and section 11A of the PID Act in relation to designated publication restrictions.24

[22] The Notice of Appeal also states that “the grounds of my appeal include factual errors which I described in my earlier correspondence with the Fair Work Commission (under the general complaints legal avenue and by providing the feedback regarding my matter to the President…” 25 Those correspondences appear to raise the same matters as contained in Appeal Grounds 1 and 2, save that the Appellant also contends that the Commission ought publish guidelines about when an application under s.593 ought be made (Appeal Ground 3).26

[23] In his Outline of Submissions, the Appellant raises a large number of matters not referred to in the Notice of Appeal and also refers to a large number of matters raised in other documents, not all of which are before the Commission. The Outline of Submissions are somewhat opaque and difficult to follow. However, as best we are able to discern, the Appellant raises the following additional matters:

(a) The Commissioner did not take into account that contravention of a non publication order is an offence under s.16 of the Suppression and Non-Publication Orders Act 2010 (NSW) (SNPO Act) (Appeal Ground 4); 27

(b) Material published by the Judicial College provides that victims of blackmail, extortion and sexual servitude will ordinarily have their identities suppressed and that where identities are suppressed pseudonym orders will typically be necessary to ensure the identify of a victim is not revealed (Appeal Ground 5); 28

(c) Courts may be closed to prevent identification of a victim or prohibit the publication of reports on proceedings; (Appeal Ground 6); 29

(d) The New South Wales Court of Appeal has accepted that pseudonym orders may be made to protect alleged victims of extortion. The Appellant submits that he provided “clear and easy to verify evidence for being found a victim of extortion (Appeal Ground 7); 30

(e) There is disharmony between the methods of applying for confidentiality orders and deidentification of parties as between the PIC and the Commission, as such orders may be sought from the PIC after the proceedings (Appeal Ground 8); 31

(f) The legal principle applied by the Commissioner is disharmonious with the non-publication order made by the PIC (Appeal Ground 9); 32

(g) It would be unfair and unjust to allow the ex tempore decision to remain as the Appellant’s GP Application is associated with coercion in relation to the Migration Act 1958 and the failure to grant the Confidentiality Application precludes the Appellant from applying for confidentiality orders in any potential proceedings under the Migration Act 1958 (Appeal Ground 10); 33

(h) The PID Act protects the identity of disclosers (Appeal Ground 11); 34

(i) Granting the Confidentiality Application is necessary for the Appellant’s safety and privacy (Appeal Ground 12);  35 and

(j) The Commissioner failed to take into account “Division 2 of the Fair Work Act relating to international labour obligations of the Commonwealth of Australia” (Appeal Ground 13). 36

[24] We proceed on the basis that the above matters are also raised as appeal grounds.

Consideration

[25] The decision under appeal is of a discretionary nature. Such a decision can be successfully challenged on appeal only if it is shown that the discretion was not exercised correctly. 37 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:38

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[26] It is convenient to first set out the relevant sections of the Act.

[27] Section 593 of the Act provides as follows:

“Hearings

(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

Confidential evidence in hearings

(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) orders that all or part of the hearing is to be held in private;

(b) orders about who may be present at the hearing;

(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;

(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;

(ii) matters contained in documents before the FWC in relation to the hearing.

…”

[28] Section 594 of the Act provides as follows:

“Confidential evidence

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

…”

[29] In Mac v Bank of Queensland & Others [2015] FWC 774 (Mac) the Commission said that the principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the Appellant ought be made. 39 The main features of that principle were usefully summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1)40 as follows:

“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.

[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings only and with transparency. As was also observed in Mac, whilst the above describes the open justice principle in relation to courts, it is equally applicable to a tribunal such as this Commission which conducts its processes in a quasi-judicial fashion.” 41

Appeal Ground 1

[30] As set out above, on 1 June 2022 the Appellant sent an email to the General Protections Team seeking that the names of the parties to the proceedings be de-identified pursuant to s.594 of the Act. As also set out above, a further email was sent to the General Protections Team and the Commissioner’s chambers on 30 June seeking orders pursuant to s.593(3) of the Act. The hearing was held on 5 July 2022.

[31] At the commencement of the hearing the Commissioner said:

“All right, this is an extension of time hearing, but I do note, Dr Zirk-Sadowski, you have raised a matter in some submissions just recently received, asking for the name of parties to be withheld. On what basis are you arguing that I should not disclose the name of the parties in these proceedings?” 42

[32] Accordingly, the Commissioner refers to submissions “recently received”. She does not, as is submitted, say or suggest that those submissions were filed late.

[33] As to the asserted omission of the 1 June 2022 submissions, it is the case that in the Decision the Commissioner did not specifically identify which submissions she is referring to and refers only to s. 593, 43 which was the subject of the 30 June 2022 submissions. Section 594, which was the subject of the 1 June 2022 submissions, is not addressed. However, even if it be that the Commissioner did omit to address the 1 June 2022 submissions in the Decision, she did so in the Written Decision. Further, we consider that in both the 1 June 2022 and the 30 June 2022 submissions the Appellant sought de-identification of the parties. The Commissioner clearly addressed this issue both in the Decision and the Written Decision.

[34] Accordingly, we do not consider Appeal Ground 1 discloses any arguable case of appealable error.

Appeal Ground 2

[35] As to Appeal Ground 2, firstly, neither the “Privacy Act” nor the PID Act were raised by the Appellant at first instance in relation to the Confidentiality Application. Secondly, on the Appellant’s own submission he sought to clarify these matters after the hearing had concluded and the Commissioner had issued her ex tempore decision regarding the Confidentiality Application. Thirdly, the non-publication order made by the PIC was not in evidence before the Commissioner, nor is it in evidence before the Full Bench. Fourthly, s.132 of the PIC Rules, relevantly, provides as follows:

“132 De-identification or redaction of publishable decisions

(1) The Commission or the President may, of their own motion or on the application of a relevant person, direct either or both of the following—

(a) that all or part of a publishable decision be de-identified before it is published,

(b)  that part of a publishable decision be redacted before it is published.

A publishable decision means a decision details of which are required to be published by section 58 of the PIC Act.”

[36] Accordingly, any order made by the PIC under s.132 of the NSW PIC Rules relates to decisions of the PIC and can have no limitation on decisions published by the Commission. Further, that the PIC may exercise its discretion under s.132 to make non-publication orders in a matter before it, can not in any way limit a member of the Commission in the exercise of their discretion under ss.593 or 594. This submission is misconceived.

[37] Finally, as to the contention that the declination of the Confidentiality Application is in contravention of s.11A of the PID Act in relation to designated publication restrictions, we consider this submission to also be misconceived. Section 10 of the PID Act, in summary, provides that a person who has made a public interest disclosure is protected from civil, criminal and administrative liability and may not be subject to any contractual or other remedy as a result of the disclosure. Section 11A of the PID provides an exception to the protections provided by section 10 as follows:

“11A Designated publication restrictions

Section 10 does not apply to civil, criminal or administrative liability (including disciplinary action) for making a disclosure that contravenes a designated publication restriction if the person making the disclosure:

(a) knows that the disclosure contravenes the designated publication restriction; and

(b) does not have a reasonable excuse for that contravention.”

[38] The Appellant is the person said to have made a protected disclosure under the PID Act. Accordingly, it is the Appellant who has the benefit of the protections under s.10 and is also the person subject to the exception to those protections contained in s.11A. Section 11A has no application to the Commissioner, irrespective of whether or not the non-publication order made by the PIC is a designated publication restriction.

[39] It follows that Appeal Ground 2 discloses no arguable case of appealable error on behalf of the Commissioner.

Appeal Grounds 3, 5, 6, 8 and 11

[40] It is convenient to address appeal grounds 3, 5, 6, 8 and 11 together. None of these grounds involve any challenge to the Decision nor raise any contention of appealable error by the Commissioner in the Decision. Accordingly, they disclose no arguable case of appealable error.

Appeal Ground 4

[41] By Appeal Ground 4 the Appellant contends that the Commissioner did not take into account that contravention of a non-publication order under the SNPO Act is an offence. No suppression or non-publication order has been made under the SNPO Act such as could give rise to a breach of that order constituting an offence. The non-publication direction in the Personal Injuries Matter was made by the PIC pursuant to s.132 of the PIC Rules. Accordingly, the provisions of s.16 of the SNPO Act are not relevant and accordingly, there was no requirement for the Commissioner to take this matter into consideration.

[42] It follows that Appeal Ground 4 discloses no arguable case of appealable error.

Appeal Ground 7

[43] As to Appeal Ground 7, firstly the contention that the New South Wales Court of Appeal has accepted that pseudonym orders may be made to protect alleged victims of extortion raises no contention of appealable error by the Commissioner. Secondly, the matter before the Commissioner was whether, pursuant to s.366(2) of the Act, the Appellant ought be granted an extension of time for the lodgement of the GP Application. We are unable to see how any allegation of the Appellant being a victim of extortion is relevant to that matter or any basis upon which the Commissioner ought to have sought to “verify evidence” that the Appellant had been the victim of extortion.

[44] Accordingly, Appeal Ground 7 discloses no arguable case of appealable error.

Appeal Ground 9

[45] As to Appeal Ground 9, we firstly note that the non-publication order made by the PIC is not in evidence before the Commission. Accordingly, what legal principle was applied by the PIC in making the direction under s.132 of the PIC Rules, is entirely unclear. Secondly, in our view the Commissioner correctly considered the paramountcy of the principle of open justice and the circumstances when a departure from that principle is justified. Thirdly, the matter before the PIC was a personal injuries matter. The matter before the Commission was an extension of time application pursuant to s.366(2) of the Act. Accordingly, the matters before the respective commissions are of an entirely different character and subject to entirely different statutory regimes. In those circumstances, we do not consider this demonstrates disharmony of the application of legal principle.

[46] It follows that we do not consider Appeal Ground 9 discloses any arguable case of appealable error.

Appeal Ground 10

[47] We consider Appeal Ground 10 to be entirely misconceived. The Decision in no way precludes the Appellant from applying for confidentiality orders under the Migration Act 1958. Appeal Ground 10 discloses no arguable case of appealable error.

Appeal Ground 12

[48] As to Appeal Ground 12, matters of the Appellant’s privacy were not raised before the Commission at first instance nor is there any material before the Full Bench which supports a conclusion that the Commissioner erred in this regard. However, whether the Appellant’s safety provided a sufficient basis for the granting of the Confidentiality Application was raised at first instance and considered by the Commissioner. In the Decision, the Commissioner, having noted that the Appellant now resides in Europe, found that there was nothing before the Commission which would cause harm to the parties such as to justify the granting of the Confidentiality Application. We see no error in the Commissioner’s approach to this and, indeed, concur with her conclusion.

[49] It follows that Appeal Ground 12 discloses no arguable case of appealable error.

Appeal Ground 13

[50] As to Appeal Ground 13, firstly, we are unable to discern the provisions of the Act sought to be relied upon. Secondly, should such obligations exist, we are unable to see how they could be relevant to an application for an extension of time pursuant to s.366(2). They are not matters that the Commissioner was required to take into consideration and accordingly she did not err in failing to do so.

[51] Accordingly, Appeal Ground 13 discloses no arguable case of appealable error.

Public Interest

[52] The Appellant contends that the grant of permission to appeal would be in the public interest as it helps clarify “legalities” associated with the Commission and the PID Act and because in other circumstances the Commission has granted orders de-identifying parties. 44 The Appellant also submits that this matter is “to some extent unprecedented.”45

[53] We disagree. We do not consider that, properly construed, this matter raises any issues in relation to the PID Act and the exercise of the Commissioner’s discretion under s.593 and s.594. Further, we do not consider that the matter is unprecedented or raises any diversity of decisions at first instance such that guidance from the Full Bench is required. The Commissioner approached the question of whether the Confidentiality Application ought to be granted in an orthodox manner.

[54] We are not satisfied that any of the matters raised by the Appellant enliven the public interest and justify the grant of permission to appeal. We do not consider that the appeal raises any issue of importance or general application. Nor do we consider that it is arguable that the decision manifests an injustice, or that the result is counterintuitive or unjust. Additionally, the name of the parties have been published in the Written Decision. Accordingly, there is no utility in granting permission to appeal.

Conclusion

[55] We are not satisfied that it would be in the public interest to grant permission to appeal and we are not persuaded that it is otherwise appropriate to exercise our discretion to grant permission to appeal.

[56] Permission to appeal is refused.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR746833>

Hearing details:

Matter decided on the papers.

Final written submissions:

Appellant, 29 August 2022

Respondent, 30 August 2022

 1   Appeal Book, page 14.

 2   Transcript PN 23

 3   Transcript PN 5

 4   Transcript PN 6

 5   Transcript PN 7

 6   Transcript PN 8

 7   Transcript PN 14

 8   Transcript PN 14

 9   Transcript PN 11, PN 12

 10   Transcript PN 11

 11   Transcript PN 23

 12   at [3]

 13   at [6]

 14   at [7]

 15   at [9]

 16   at [12]

 17   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.

 18   [2010] FWAFB 5343 [27]; (2010) 197 IR 266.

 19   Ibid [24]-[27]

 20   Wan v AIRC (2001) 116 FCR 481 at [30]].

 21   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 22   Form F7, Notice of Appeal, q.2.1

 23   Ibid

 24   Appellant’s Outline of Submissions at [3]

 25   Form F7, Notice of Appeal, q.2.1

 26   Appeal Book, page 96, page 101

 27   Appellant’s Outline of Submissions at [3]

 28   Ibid

 29   Appellant’s Outline of Submissions at [3]

 30   Ibid

 31   Appellant’s Outline of Submissions at [3]

 32   Appellant’s Outline of Submissions at [9]

 33   Appellant’s Outline of Submissions at [7]

 34   Ibid

 35   Ibid

 36   Appellant’s Outline of Submissions at [8]

 37   Wingate v Monadelphous [2014] FWCFB 5913

 38   House v King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ

 39   at [6]

 40   [2011] NSWSC 385

 41   at [7]

 42   Transcript PN 5

 43   Transcript PN 23

 44   Appellant’s Outline of Submissions at [10], [14]

 45   Ibid at [11]