Applicant M v Secretary, NSW Department of Education [2025] NSWIRComm 1058

(1) Assault occasioning actual bodily harm pursuant to section 59(1) of the Crimes Act 1900 (NSW) (Crimes Act);

(2) Intentionally choke a person with recklessness pursuant to section 37(1) of the Crimes Act;

(3) Stalk/intimidate intend fear physical etc harm (domestic) pursuant to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

1. W1 was the victim in each case.
2. The Applicant was sentenced to 3 community corrections orders to run concurrently from 3 October 2023. Final Domestic Violence Orders were also made in favour of W1, W2, W3 and W4.
3. Conviction of these offences empowered the Respondent, subject to affording the Applicant an opportunity to make a submission,[1] to take disciplinary and/or remedial action[2] under the Education (School Administrative and Support Staff) Act 1987 (NSW) (hereafter the SASS Act).
4. On 29 January 2024 the Respondent, having become aware of the convictions, wrote to the Applicant saying, amongst other things, it regarded criminal offences as a serious matter, that the matter would be referred to a decision maker to determine what, if any action should be taken, and invited a submission:

Before a decision is made as to what action the department will take in relation to this matter, you have the opportunity to provide a response regarding your conviction. If you choose to provide a response, your response might address the circumstances leading to the charges and provide any other information you wish to be considered.

1. The Applicant responded to that invitation, but was ultimately dismissed effective 4 February 2025. These proceedings were commenced in time of 24 February 2025, alleging that the dismissal was harsh, unjust and/or unreasonable.
2. This decision deals with a Notice of Motion filed by the Respondent on 14 July 2025 (the Motion), seeking orders, operative for 15 years (unless varied or rescinded), pursuant to section 164A of the IR Act:

(1) To prohibit the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, or the doing of any other thing that identifies, or may lead to the identification of; and

(2) To restrict the publication of evidence given before the Commission or matters contained in documents lodged with the Commission or received in evidence by the Commission, to the extent that it may lead to the identification of:

A number of persons and places, including current or former students of identified schools, important witnesses (one of whom is a child) who are to give evidence in the Respondent's case (and the names of their children), and certain named New South Wales schools; and

(3) Restricting access to the Commission's file such that the parties will be consulted by the Industrial Registrar to determine whether there is any objection before any person (other than the parties) may be granted access.

1. I will refer to these Orders collectively as the Non-Disclosure Orders. The precise terms of the Non-Disclosure Orders (including pseudonym orders consequential upon the above Orders) will remain confidential between the parties. I note there are a number of exemptions crafted into the Non-Disclosure Orders to deal with disclosures potentially required in the discharge of certain functions under the Child Protection (Working With Children) Act 2012, the Children's Guardian Act 2019, and the Children and Young Persons (Care and Protection) Act 1998, which need not be set out for present purposes.
2. The Motion was listed for hearing on 28 July 2025 (together with two other unrelated interlocutory motions that will be the subject of a separate decision). The Applicant (Respondent on the Motion) was represented by Mr Fagir of Counsel, and the Respondent (Applicant on the Motion) by Mr Britt of Counsel. The Respondent:

(1) read an affidavit of Ms Kaitlyn Maia, Senior Legal Officer within the Professional Ethical Standards Directorate of the Respondent who acts on behalf of the Respondent in these proceedings, in support of the Respondent's Motion; and

(2) relied upon an outline of written submissions dated filed 23 July 2025; and

(3) briefly supplemented that outline of submissions with oral submissions.

1. Each counsel approached argument on the Motion in a helpfully considered and pragmatic way that ultimately identified a need for an amendment to the proposed Orders to include the Applicant if they were to be of any utility. Mr Fagir sought and was granted leave to make an application instanter to seek Orders under s 164A in the same terms as those sought by the Respondent's Motion. With that leave given, the Orders sought by each party were unopposed.
2. It is in those circumstances that I come to consider the applications for the Non-Disclosure Orders under s 164A of the IR Act.

"The Commission, other than in Court Session, may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice."

1. A "non-disclosure order" is defined in s 164A(1) to be:

"(a) an order prohibiting or restricting -

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission,

(c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings."

1. Section 164A of the IR Act affords the Commission a discretion to make a non-disclosure order in certain circumstances. The requirement that the Commission be satisfied that a non-disclosure order is "necessary ...in the interests of justice" reflects the foundational proposition that proceedings before the Commission are and should remain public (see Secretary of the Department of Education v X [2023] NSWIRComm 1061 at [35]). As observed by the Full Bench in Commissioner of Police v Robbs (No 2) [2022] NSWIRComm 1039 at [145]):

"Open justice is one of the fundamental attributes of a fair trial and a matter that must be weighed in considering the interests of justice. That the administration of justice must take place in open court is a "fundamental rule of the common law": John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476]-[477] (McHugh JA, Glass JA agreeing). The High Court has said that "the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances": Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ). The Full Bench in Smidmore referred to this as the paramount consideration.

1. A convenient summary of principle (albeit not exhaustive) in the application of the discretion provided by s 164A can be found in the decision of the Full Bench in Dr A v Health District [2014] NSWIRComm 28; (2014) 244 IR 208 at [47] - [48], and in the more recent discussion of the Full Bench in Secretary of the Department of Education v X [2023] NSWIRComm 1061 at [30] - [49].
2. Mere reputational harm, distress or embarrassment is not a proper foundation for an Order under s 164A(3) of the IR Act: see Secretary of the Department of Education v X at [36] - [37], and the cases referred to therein.
3. If orders are to be made pursuant to s 164A of the IR Act they should be clearly expressed (to ensure there is no confusion as to their operation), and they should be no wider, and operate for no longer, than reasonably necessary to achieve the purpose for which they are made.
4. Neither party opposes the Non-Disclosure Orders sought by their opponent. Whilst a relevant consideration, consent of an opponent is not sufficient to justify the making of a non-disclosure Order (see for example, Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) (No 2) [2023] NSWIRComm 1042).
5. There are a number of factual and legal disputes that will need resolution to properly dispose of these proceedings. Those factual and legal disputes will require, amongst other things:

(1) A close examination of the conduct of the Applicant and W1 towards one another generally in their relationship, and on a number of specific occasions, including those that led to the offences for which the Applicant was convicted (noting I am describing the factual controversies in a deliberately general way for the purpose of these reasons). On any view of it, the evidence in these proceedings will:

(a) Examine a significant amount of evidence of a sensitive nature relating to the relationship between the Applicant and W1 (and to a lesser extent, W1's children), including evidence of the sexual relationship between the Applicant and W1.

(b) Examine evidence of injuries occasioned a victim in a domestic violence setting (including images of naked or partially naked bodies depicting injuries);and

(c) Discuss private medical records of witnesses (including W1 and W1's sister).

(2) The identification of the schools and school communities in which each of the Applicant and W1 lived and worked, and will require the identification of a number of individuals, including a number of children (including of course W2, W3 and W4), none of whom are party to the proceedings.

1. In weighing up the fundamental public interest in maintaining a system of open justice against the interests of each of the parties who seek Non-Disclosure Orders, I am satisfied it is necessary to make the non-disclosure orders in the interests of justice for reasons outlined in the affidavit of Ms Maia and the submissions of the Respondent (including the helpful outline of written submissions), and the oral submissions made on behalf of the Applicant in the course of the hearing today.
2. Given there is no active contest around the making of the Non-Disclosure Orders, it is unnecessary to set out my reasoning in detail. I would, however, make specific comment on some of the matters raised.
3. One of the matters raised in favour of making of the Orders is, to describe it generally, the potential for psychological harm to be occasioned by W1 and/or one of W1's children in the event the Non-Publication Orders were not made.
4. References to "injury" in classic formulations of principle in connection with such Orders (for example, Boland J President in Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72 at [6] where his Honour said, by reference to Smidmore (No2) at [32], "Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings 'publicly and in open view', my emphasis), are in my understanding a reference to injured reputation or feelings, not injury in the sense of harm to a person's mental health.
5. In X v Sydney Children's Hospital Network [2011] NSWSC 1272, Adamson J observed (in dealing with an application for a Suppression and Non-Publication Order under the Courts Suppression and Non-publication Orders Act 2010) at [8] "... I accept that where disclosure of the Plaintiff's identity carries with it a risk of harm, there is a potential prejudice to the administration of justice and to the public interest in people being able to exercise their legal rights". Her Honour went on to explain that it may potentially prejudice the administration of justice if parties, or potential parties to proceedings, would be deterred from bringing (to which I would add continuing) proceedings because of the harm that the disclosure of the party's identity could cause.
6. There is no medical report pertaining to W1 or W1's children justifying the making of Non-Disclosure Orders on the basis of the potential for psychological harm (as would, in my view, ordinarily be required for a matter such as this, of itself, to justify Non-Disclosure Orders). Nonetheless, I understand from Ms Maia's affidavit that W1 and W1's children, have previously attended psychological counselling in connection with their relationship with the Applicant and its breakdown. I am prepared to infer that the publication of the identity of students in connection with these proceedings are likely be an additional stressor, and may have the potential to cause harm. The same can be said of the position of the Applicant. On the evidence in this case it is, however, not a consideration that attracts significant weight.
7. As for the Applicant, I am conscious that the publication of once private matters is a necessary incident of proceedings they have chosen to pursue: see Secretary of the Department of Education v X at [38] - [39], "...when a party applies to the Commission for relief, including from an adverse decision or action of an administrator, that party must expect that the previously private matter will, unless the interests of justice otherwise necessitate, be made public". That said, it is necessary to take into account whether making the identity of the applicant public would, or would have the potential, to seriously jeopardise that person's career and livelihood as a professional (particularly if serious allegations are yet to be tested before the Commission) and thereby undermine the very reinstatement (or re-employment) sought (see by way of parallel the reasoning of the Full Bench in Dr A v Health District at [52]). In the instant case, whilst that is a relevant factor it attracts little weight (particularly given the proceedings that gave rise to the convictions that underlie the Applicant's dismissal were not the subject of non-disclosure Orders).
8. The factor weighing most heavily in favour of Non-Disclosure Orders covering the Applicant in this case is the very real risk that the identification of the Applicant in a discussion of the evidence in this particular case (covering the matters identified above), will lead to the identification of W1, W2, W3 and W4, thereby rendering the orders in their favour of no utility.

1. The Commission makes the following Orders pursuant to s 164A of the Industrial Relations Act 1996:

(1) Pursuant to s. 164A(1)(a) of the Industrial Relations Act 1996, the Commission prohibits the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, or the doing of any other thing that identifies, or may lead to the identification of:

(a) Witness W1;

(b) any former or current student of any Public School or High School identified in the material;

(c) Any Public School or High School identified in the material, including but not limited to the School 1, School 2 and School 3 referred to in Schedule A;

(d) The Applicant.

(2) The following persons and places are to be identified by pseudonyms in connection with these proceedings, including in any decision published in these proceedings:

(a) The Applicant is to be identified as the Applicant or Applicant M.

(b) The witnesses, persons and places identified in Schedule A as W1, W2, W3 and W4, and School 1, School 2 and School 3 are to be identified by pseudonyms in connection with these proceedings, including in any decision published in these proceedings.

(3) Pursuant to s. 164A(1)(c) of the Industrial Relations Act 1996, the publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of:

(a) Witness W1;

(b) any former or current student of any Public School or High School identified in the material;

(c) Any Public School or High School identified in the material, including but not limited to the School 1, School 2 and School 3 referred to in Schedule; and

(d) The Applicant

(4) Pursuant to s. 164A(1)(a) of the Industrial Relations Act 1996, access to the Commission file in this matter is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access.

(5) This Order will remain in force for 15 years unless varied or rescinded by the Commission.

(6) Nothing in these orders:

i. prevents the disclosure of any information or material to the Office of the Children's Guardian NSW in compliance with:

(a) a. an assessment notice issued under s 31 of the Child Protection (Working with Children) Act 2012;

(b) b. a request for information issued under s 245D of the Children and Young Persons (Care and Protection) Act 1998; or

(c) c. a requirement to provide further information under s 42 of the Children's Guardian Act 2019, or in accordance with s 245C of the Children and Young Persons (Care and Protection) Act 2012;

ii. prevents the use or disclosure by the Children's Guardian of information or material provided in that manner in the exercise of the Children's Guardian's functions under:

(d) a. the Child Protection (Working with Children) Act 2012;

(e) b. the Children and Young Persons (Care and Protection) Act 1998; or

(f) c. the Children's Guardian Act 2019,

including, without limitation, for the purpose of carrying out any risk assessment in accordance with s 15 of the Child Protection (Working with Children) Act 2012 and for the purposes of any review or appeal of a decision by the Children's Guardian in accordance with Part 4 of that Act; or

iii. prevents the Applicant, or the Respondent, the Secretary of the Department of Education, from disclosing information or material that is the subject of the above orders to the NSW Civil and Administrative Tribunal or any other court for the purposes of any review or appeal of a decision by the Children's Guardian in accordance with Part 4 of the Child Protection (Working with Children) Act 2012 or any further appeal therefrom.

(7) The Non-Disclosure Orders set out in Schedule A to these reasons are made.

(8) Schedule A to these reasons is not to be published.

(9) Subject to further Order of the Commission, disclosure of Schedule A to these reasons is restricted to the parties and their legal representatives.

01 August 2025 - Amendment made to orders in [31] - error in form of order.