New South Wales Technical and Further Education Commission v Valda June Kerrison

CORAM: Walton J Vice-President; Staunton J; Staff J

CATCHWORDS: Costs - application for costs and and repayment of monies paid - distinction between Commission simpliciter and Commission in Court Session to award costs under s 181 of the Act - leave to appeal based on public interest considerations - appellant entitled to costs at first instance - appellant's application for costs in appeal proceedings proper declined - application for indemnity certificate under Suitors' Fund Act not required as no order made as to costs of appeal proper - costs order made in favour of appellant in relation to respondent's application to reopen appeal proceedings - the exercise of discretion in appellant's favour to order repayment of monies paid refused - costs orders made in favour of appellant as agreed or assessed - cost of assessment to be borne by appellant.

Employee Liability Act 1991 Evidence Act 1995 LEGISLATION CITED: Industrial Relations Act 1996 Limitation Act 1969 Suitors' Fund Act 1951 Technical and Further Education Commission Act 1990

Acquilina v Diary Farmers Co-operative Milk Co. Ltd (1965) 82 WN (Pt. 1) (NSW) 531 Day v Smidmore (No 2) [2005] NSWIR 406 Hollingsworth v Commissioner of Police [2007] NSWIRComm 137 CASES CITED: Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76 Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 429 Kerrison v New South Wales Technical and Further Education Commission (2007) NSWIRComm 140 Oshlack v Richmond River Council (1998) 193 CLR 72 Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and anor [2007] NSWSC 104 (19 February 2007)

HEARING DATES: 18 July 2007 EXTEMPORE JUDGMENT DATE: 18 July 2007

APPELLANT: Ms E S Brus of counsel SOLICITOR: Ms J Burton LEGAL REPRESENTATIVES: Crown Solicitor

RESPONDENT: Mr P Johnston Agent

CORAM: WALTON J, Vice-President STAUNTON J STAFF J Wednesday 18 July 2007

NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION v VALDA JUNE KERRISON

Application by appellant for costs and repayment of monies paid

JUDGMENT OF THE COURT Extempore [2007] NSWIRComm 176

1 This judgment concerns an application for costs by the appellant with respect to proceedings at first instance and on appeal. 2 The appellant also seeks an order in the exercise of the Court's discretion that Ms Kerrison pay the appellant an amount of $81,000. The genesis of that application is the monies paid on a weekly basis by the appellant to Ms Kerrison arising from the decision of Schmidt J at first instance. Those payments commenced on or about 21 March 2003 and continued up to the handing down of the judgment in the appeal proceedings on 2 December 2004. The payments made were approximately $1,000 per week, representing salary and other entitlements paid to Ms Kerrison in her employment as a teacher with the appellant, which Schmidt J had declared to be on foot and continuing.

Relevant factual background 3 In the first instance proceedings before Schmidt J, the applicant in those proceedings, Ms Valda Kerrison, sought declaratory relief pursuant to s 154 of the Industrial Relations Act 1996 (the Act). The hearing of that matter, extending over some twelve hearing days, centred around the facts and circumstances giving rise to Ms Kerrison's medical retirement from the New South Wales Technical and Further Education Commission (TAFE). It was Ms Kerrison's contention that her purported medical retirement had not been properly effected in accordance with the provisions of the Technical and Further Education Commission Act 1990 (the TAFE Act) and, accordingly, her employment with TAFE had not been terminated. She sought a declaration to that effect. 4 Before Schmidt J, Ms Kerrison was wholly successful. Her Honour delivered two judgments: (i) Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76 given on 21 March 2003 going to the substantive issue for determination; (ii) Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 429 given on 10 December 2003. That judgment finalised consequential orders arising from her Honour's earlier judgment underpinning the declaratory relief sought by Ms Kerrison. 5 In the substantive first instance judgment, her Honour found, for the reasons given, there had never been any valid or effective termination of Ms Kerrison's employment with TAFE. Her 'consequential orders' decision, given on 10 December 2003, concluded the first instance proceedings between the parties including that the appellant (the respondent at first instance) pay Ms Kerrison's costs as agreed or assessed. 6 As the losing respondent at first instance, the appellant sought leave to appeal and to appeal the decision of Schmidt J pursuant to ss 187 and 188 of the Act. 7 Leave to appeal was granted. The appellant was wholly successful on appeal. In determining the appeal, the Full Bench rejected her Honour's conclusions as to the proper construction of s 20 of the TAFE Act and whether, in accordance with s 20 of that Act, TAFE had 'caused Ms Kerrison to retire'. 8 In handing down our judgment on the appeal we said at [91]: The matter is set down for further hearing in relation to costs and as to any orders that should be made in relation to earlier orders staying the decision of Schmidt J. 9 Since the appeal judgment was delivered on 9 December 2004, we have endeavoured, on numerous occasions, to conclude the appeal with respect to costs and matters arising from the stay. As is evident, there has been a considerable delay in doing so, occasioned by Ms Kerrison's significant ill health and her request the matter not be dealt with until she was well enough to attend Court. Medical reports provided to the Court confirmed Ms Kerrison's ill health during that time. 10 Before the costs hearing could be heard, Ms Kerrison filed an application to reopen together with an affidavit in support. That application was heard on 17 May last and judgment was given on 8 June 2007. Orders were made dismissing Ms Kerrison's application to reopen. Costs were reserved to be dealt with as part of our current considerations. 11 As the application to reopen arose out of the appeal proceedings, the appellant's application for costs in the appeal proceedings includes the costs incurred in relation to Ms Kerrison's application to reopen. 12 On behalf of the appellant, counsel stated that 'recoverable legal costs' of $225,000 has been incurred by the appellant in the application before Schmidt J (Matter No IRC 3124 of 2000) and $67,000 in the appeal proceedings (Matter No IRC 7143 of 2003). As we understand it, the amounts identified as having been incurred have not been formally assessed by a costs assessor or Registrar of the Court. 13 In the exercise of the Court's discretion as to costs, the appellant seeks the following orders: (i) The respondent is to pay the Appellant's costs in Matter No IRC 3124 of 2000;

(ii) The respondent is to pay the Appellant's costs in Matter No IRC 7143 of 2003. Consideration as to costs

14 In opposing the appellant's application for costs at first instance and on appeal, Ms Kerrison submitted, in the first instance, that the 'New South Wales Industrial Relations Commission' has no jurisdiction to award costs. Support for that contention is to be found, she submitted, in the provisions of the Industrial Relations Act 1996 (the Act) that shows a clear intent the Commission is a 'no costs jurisdiction'. 15 No specific provision of the Act was relied upon by Ms Kerrison to support her submission as to this assertion. She did, however, assert that the decision of Rothman J in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and anor [2007] NSWSC 104 (19 February 2007) had established by 'case law' that the 'Industrial Relations Commission is a no costs jurisdiction'. Again, apart from that assertion, Ms Kerrison did not explain those passages of his Honour's decision that, in her view, supported the proposition she advanced. 16 As reference to the decision of Rothman J in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and anor makes plain, his Honour's decision does not establish the proposition Ms Kerrison contends for. What his Honour did ultimately determine in that case, inter alia, was that Mr Russell's legal costs in his reinstatement application before the Commission could not be considered as a head of damage for breach of contract at common law. As his Honour said at [176] of his judgment: ... An order for reinstatement mitigates the damage for the wrongful dismissal, but the proceedings and the order arise from a statutory regime, for which the award of costs is exceptional. It would be inconsistent with the purpose of the legislation and the operation of the legislative scheme envisaged by Parliament for this Court to award the costs of those proceedings as a head of damage. 17 Further, without canvassing all of the factual details underpinning his Honour's judgment in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and anor, it must be made clear that his Honour was considering the power of the Commission simpliciter to award costs rather than the power of the Commission in Court Session (now the Industrial Court) to award costs. 18 Before commencing proceedings before the Supreme Court, Mr Russell had undertaken reinstatement proceedings before the Commission pursuant to s 84 of the Act. He was successful and was reinstated. Mr Russell then brought an action before the Supreme Court, seeking common law damages arising from his dismissal. One of the heads of damage was as expressed by Rothman J at [79]: It has been urged on behalf of the plaintiff in these proceedings that the provisions of the Industrial Relations Act 1996 (NSW) do not abrogate common law rights that would otherwise apply. This submission is made in the context of seeking to persuade the Court that the costs of the proceedings in the Commission are expenses in mitigation of damage that are recoverable in these proceedings. I will return to that submission at a later point in this judgment, but here deal with the proper interpretation of the Act and the alleged presumption against the alteration of common law rights. 19 In considering the above issue, and by way of background, Rothman J identified the distinction between the power of the Commission to award costs when it is sitting as the Commission simpliciter rather than the Industrial Court. 20 The Commission's power to award costs when not sitting as the Industrial Court is constrained by s 181(2) of the Act, which is in the following terms: (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.

21 In contrast, when sitting as the Industrial Court, the Court has power to award costs as s 181(1) of the Act provides as follows: 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. 22 At first instance, Ms Kerrison's application sought declaratory relief under s 154 of the Act. Such an application is dealt with by the Industrial Commission in Court Session (now Industrial Court) as s 153 of the Act provides as follows: (1) The following functions of the Commission are to be exercised only by the Commission in Court Session:

... (b) proceedings for declarations of right under section 154, 23 Accordingly, we reject Ms Kerrison's submission that we do not have power to award costs (see Hollingsworth v Commissioner of Police [2007] NSWIRComm 137 at [13]). 24 The well known first principle in relation to costs is that in litigation and subject to limited exceptions, a successful party is entitled to an award of costs in it's favour: See Hollingsworth at [14] and Oshlack v Richmond River Council (1998) 193 CLR 72 at 96. 25 In these proceedings, there is no conduct identified by Ms Kerrison or on the face of the record of the first instance proceedings that would disentitle the appellant to it's first instance costs in Matter No IRC 3124 of 2000. In saying that, we are mindful of the financial impost this will have on Ms Kerrison. 26 On one view, it would appear that, up until final submissions at first instance before Schmidt J on 14 November 2002, Ms Kerrison was of the view that the likelihood of a costs order against her if she was unsuccessful was not great. The following exchange between Ms Kerrison and Schmidt J is instructive on this point: ... as I am following you, one of the things you are complaining about in these proceedings is your personal situation and the fact that costs is not something which you are able to bear and feel ought not have to bear given your circumstances and the matter which comes before the Court.

You present me with a difficult dilemma, Ms Kerrison, I must say because it is very obvious that at any stage in any of your affidavits the simplest way to present the evidence as to [what] has had happened at these meetings was to refer to the tapes, produce them and annex the transcript of the conversations and it would have been there, there could have been no doubt as to what had been said if that evidence was received. But these proceedings have been going on for a very long time now and that was a choice you did not make, in fact only after you received the respondent's submission did you make an attempt to tender this material. APPLICANT: Yes, your Honour. I had not seen submissions from the respondent before. Also I believe that in the Industrial Relations Commission that costs were not very often awarded against the applicant, the employee.

HER HONOUR: I don't understand where you could have such a belief, where it has come from. The legislation makes plain with proceedings such as these it is a cost jurisdiction and it is the ordinary every day event that costs are ordered.

APPLICANT: I can understand costs do have to be covered too but can lead to the ones with power simply having free sway; that the Court would, of course, be aware of all of this, that the person without power or expertise, linguistic skills to be able to get their heads around all of this, would be a fool to come near the courts. 27 But that factor cannot represent a proper basis for denying the appellant's costs and, in any event, merely confirmed the legal position of Ms Kerrison, that proceedings before the Industrial Court are a costs jurisdiction.

28 Having had the opportunity to consider this matter at some length and the first instance transcript before Schmidt J, we can only commend her Honour for the patience and courtesy she extended to Ms Kerrison as an unrepresented litigant. Under no circumstances could it be said that, at first instance, the appellant had 'free sway' before her Honour. Indeed, as is evident, Ms Kerrison was successful before her Honour. 29 In all the circumstances and in the proper exercise of our discretion, we believe the appellant is entitled to it's costs at first instance and propose to order accordingly. In doing so, however, we believe any costs recoverable should, in the absence of agreement, be assessed costs as provided by s 181(1)(d) of the Act and that the cost of that assessment should be borne by the appellant. 30 In the ordinary course of events, where an appellant is successful, it is entitled to an award of costs both at appellate level and in the Court below. We do not, however, consider Ms Kerrison should pay the costs of the appeal. 31 While these proceedings have not been in the nature of pure public interest as contemplated in Oshlack v Richmond River Council, there were distinct and relevant public interest considerations that influenced our decision to grant leave to appeal. As we said on that point in our judgment: [29] In our view, Ms Kerrison had a respectable argument that leave to appeal should not be granted on the basis that the decision below turned on highly unusual facts before her Honour; involved a relatively uncomplicated matter of statutory construction; and had limited implications given that it involved the particular circumstances of an individual's employment. However, where an appeal "raises issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application", leave to appeal would normally be granted: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382. [30] Similar expressions to "the [TAFE Commission] may cause the member to be retired" appear in at least nine statutes which regulate different areas of the public sector. In our view, it is plain that the issue that arises for determination in this appeal will have implications for the public sector generally and therefore the impact of our judgment will have important ramifications beyond those affecting TAFE. 32 In upholding the appeal, Ms Kerrison sustained significant adverse personal and financial circumstances. It could be said that Ms Kerrison's individual circumstances were overborne by the public interest considerations that influenced our granting the appellant leave to appeal. In any event, leave to appeal was ultimately granted with respect to issues of general import arising from the construction of the relevant legislation. In other words, the relevant concerns transcended Ms Kerrison's personal interests in this matter. 33 In such circumstances, we note the comment in The Law of Costs, DuPont G. E., Butterworths 2003 at 20:13 where the learned author states: [20.13] The court may opt to make no order as to the costs of an appeal where that appeal, though not successful, is brought to vindicate rights beyond merely those of the appellant. The relevant principles in this context are the same as those that apply to the costs of public interest litigation at first instance ... For example, if a government agency appeals successfully against the decision of a tribunal favouring an individual, the court may be inclined to make no order as to the costs of the appeal if the matter is of wider concern than the individual's personal circumstances , especially where, as is usually so, no costs order is (or can be) made by the tribunal. (emphasis added)

34 In the first instance proceedings Ms Kerrison has already incurred a costs order by the appellant's success on appeal. Given the primary basis for granting leave to appeal, and in the exercise of our discretion in these matters, we decline the appellant's application for costs in the appeal proceedings proper and propose instead to make no order as to costs. In so determining, we exclude those costs incurred by the appellant in Ms Kerrison's application to reopen. We would add that whilst Ms Kerrison 'muddied the waters' of the appeal by the bringing of a contention, we do not think that, in the particular circumstances of this case, including the limited role those issues played in the appeal, that those circumstances should alter our decision to refuse the granting of costs to the appellant for the appeal. 35 In her submissions, Ms Kerrison sought an indemnity certificate under s 6 of the Suitors' Fund Act 1951 (NSW) with respect to the appeal costs. 36 Relevantly, s 6(1A) of the Suitors' Fund Act 1951 provides: Where an appeal against the decision of a court to the Industrial Relations Commission of New South Wales or to the District Court of New South Wales on a question of law succeeds, that Commission or Court, as the case may be, may, upon application made in that behalf, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal. 37 In our judgment on appeal, we concluded that, at first instance, Schmidt J had 'made appellable errors of fact and law'. 38 As is well recognised, the major objective of the Suitors' Fund Act (NSW) is to provide financial relief to a respondent on appeal who has secured success due to an error of law of the first instance court and then requiring them to bear the costs consequences of that error. As was said by Moffitt J in Acquilina v Diary Farmers Co-operative Milk Co. Ltd (1965) 82 WN (Pt. 1) (NSW) 531 at 533 in explaining the rationale for the legislation as follows: The grant of such relief, it can be inferred, proceeds on the assumption that the law is known, so that if an error of law occurs in a court of first instance or an inferior appellate court, such error may ordinarily be attributed to a fault in the administration of justice rather than of the parties so that the costs of having the error rectified ought not ordinarily to lie on the unsuccessful respondent to the appeal but to be paid from a fund contributed to by all litigants. ... 39 If we were minded to grant the appellant it's costs on appeal, we would agree Ms Kerrison may be entitled to a certificate of indemnity under s 6(1A) of the Suitors' Fund Act. However, as we propose to make no order as to costs of the appeal proper (save for Ms Kerrison's application to reopen), we see no need to further consider this aspect of Ms Kerrison's submission. 40 We would add one final comment. Even if Ms Kerrison was granted an indemnity certificate, it would only meet some of the appellant's costs of the first instance proceedings. The maximum amount payable from the fund for any one appeal is $10,000. As well, an indemnity certificate is accompanied by the stringent qualifications provided in s 6(2) of the Suitors' Fund Act. 41 In relation to those costs incurred by the appellant arising from Ms Kerrison's application to reopen the appeal proceedings, we propose to make an order in favour of the appellant. 42 That application was a discrete issue filed by Ms Kerrison nearly two and a half years after our appeal judgment was handed down and, because of her illness, before we could schedule the costs hearing. As reference to that judgment makes clear, there was nothing in the substance of that application that arises from the decision of Schmidt J at first instance nor was it based on an error of law amenable to any consideration under the Suitors' Fund Act. That issue certainly does not attract the public interest considerations that have resulted in us otherwise refusing costs of the appeal. 43 For the reasons enunciated in our judgment: Kerrison v New South Wales Technical and Further Education Commission (2007) NSWIRComm 140, Ms Kerrison's application to reopen the appeal proceedings was dismissed. Accordingly, there is no reason to deny the appellant it's costs in defending that application. 44 In a submission that is unclear, Ms Kerrison contended, as best as we understand, that her employer TAFE and on TAFE's behalf, the appellant, is liable to 'indemnify' her pursuant to the Employee Liability Act 1991. 45 In our view, that Act has no relevance to these proceedings. The Employee Liability Act is legislation designed to ensure that an employee at law is not required to indemnify an employer where the employer is personally or vicariously liable for the tortious act of an employee. 46 No such situation arises here. As respondent to the successful appeal, that Ms Kerrison may be liable to pay the appellant's costs is not a tortious act as contemplated by the Employee Liability Act 1991 (NSW). We take the same view in relation to submissions made by Ms Kerrison to the 'statute of limitations'. The provisions of the Limitation Act 1969 (NSW) do not apply to these proceedings.

Considerations as to monies to be paid by Ms Kerrison to the appellant 47 Schmidt J delivered her substantive first instance judgment on 21 March 2003. There was a period of some months from March to November 2003 during which the parties disputed the terms of final orders to properly reflect her Honour's findings. Submissions as to that matter were heard by Schmidt J in November 2003 and, on 10 December 2003, her Honour delivered judgment in which she determined final orders. Inter alia, the final orders required the appellant pay to Ms Kerrison certain monies representing pay and entitlements from June 1995 to November 2003. 48 In the intervening period, between 21 March 2003 and 18 December 2003, the appellant paid Ms Kerrison $1,000 per week. The background to the appellant paying that amount requires some elaboration. 49 In support of an order that Ms Kerrison repay monies, the appellant filed an affidavit sworn by Mr Peter Cribb. Mr Cribb is a Senior Legal Officer with the Department of Education and Training and has had responsibility for the carriage of this matter on behalf of the appellant. 50 Mr Cribb helpfully dissects the monies paid by the appellant to Ms Kerrison as follows: (i) the first period being payments made from 21 March 2003 to 18 December 2003: the amount paid being $39,000. (ii) the second period being payments made from 19 December 2003 to 12 February 2004: the amount paid being $8,000. (iii) the third period being payments made from 13 February 2004 to 2 December 2004: the amount paid being $42,000. 51 As Mr Cribb deposed, we consider correctly, the payments made to Ms Kerrison during the first period denoted were made on what has been described by Mr Cribb as an ex gratia basis in the sense that the appellant was under no legal obligation to make the payments to Ms Kerrison. That is, the payments were made voluntarily by the appellant before any final orders were made by Schmidt J at first instance. 52 In his affidavit, Mr Cribb explained the making of such payments voluntarily and the context in which the phrase ex gratia was used by him on behalf of the appellant in the following terms: [7] My recollection is that the payments made in respect of the first period were not made pursuant to any order, but were made voluntarily by the Appellant after the Respondent had sought orders for such (or similar) payments from her Honour Justice Schmidt . My recollection is that her Honour did not make such an order but requested that the Appellant consider the Respondent's request. I recall being cross-examined in the course of the further hearings that occurred during the first period. I remember using the expression ex-gratia payment , however, at no time did the Appellant consider, nor represent to the Respondent, that the payments were made on the basis that the payments were not refundable in the event the Appellant was successful in the proceedings. I used the expression ex-gratia payment in the sense that the Appellant was under no legal obligation to make the payments to the Respondent. 53 The appellant does not seek the repayment of monies paid to Ms Kerrison during the second period identified above. The reason for that is that following the making of final orders by Schmidt J on 10 December 2003, the appellant sought a stay. That application was dealt with by Walton J, Vice-President. In the first instance, the stay was granted by orders made in the following terms: (i) the applicant appellant shall make payment to the respondent of $1,000 per week; (ii) The moneys so paid from the first payment after today's date until the last payment made prior to the matter being called on 3 February; in other words, payments made within the interim period shall not be repayable to the appellant in the event that the appellant is in whole or in part successful in its appeal. 54 When the matter was next before his Honour in February 2004 in order to progress the appeal, the stay was continued on condition the appellant continued to pay Ms Kerrison $1,000 per week. The issue as to whether the payments made for the ensuing period (the third period) should be repaid by Ms Kerrison if the appeal was successful was left to be determined at another time. In that respect, we do not agree with Ms Kerrison that it was acknowledged by counsel for the appellant that funds paid in the third period were not refundable. Reference to the transcript of 3 February 2004 before Walton J, Vice-President and to statements made by Mr Menzies QC on behalf of the appellant makes that clear as follows. ... The only stumbling block to the continuation of the stay on that basis is the second order, that is, that the money never be repayable. Your Honour made those orders, as we understood it, at least in part, because they were of an interim nature, and the essence of the appellant's case is that the termination of the respondent's employment took place at the time that the appellant said it did, and therefore she is no longer our employee.

If that is right, then any moneys paid to the plaintiff after that date are obviously repayable. ...

We would be content if your Honour made orders for continuation of the stay on the basis of payment of $1,000 per week with no further order, and the resolution of what happens to that $1,000 can be something dealt with at an appropriate time if necessary.

HIS HONOUR: ... As to the second condition, I note the parties have preserved the question as to what may be done in due course with respect to such moneys for argument.

55 Having considered the facts and circumstances of this matter giving rise to the appellant's payments to Ms Kerrison, we are not persuaded to make the order sought that Ms Kerrison should now repay the money. 56 Notwithstanding Mr Cribb's explanation as to the context in which the expression ex gratia was used, the payments of $1,000 per week totalling $39,000 made to Ms Kerrison during the first period from 21 March to 18 December 2003 were made on a voluntary basis following Schmidt J's decision that Ms Kerrison's employment with the appellant was still on foot and continuing. Having been made voluntarily, and in the absence of the imposition of some relevant condition, we see no reason to order their repayment. 57 Further, we have some sympathy for Ms Kerrison given the position she is now in. The crux of the appellant's success on appeal turned on the meaning of the phrase 'cause the member to be retired' in s 20 of the TAFE Act - a relatively narrow but, nevertheless, important point. 58 In addition, Ms Kerrison's professional life has been adversely affected in that she has been unable to be employed as a TAFE teacher for some years and, as best we understand, has had no gainful employment during that time. It is apparent her financial circumstances are limited. As well, Ms Kerrison has had a significant health problem to contend with during the course of these proceedings. Further, and significantly in our view, she now has a significant costs order to contend with. 59 Overall, for the reasons stated, we are not minded to accede to the appellant's application for an order requiring Ms Kerrison to repay the monies paid to her by the appellant during the first and third periods, as denoted in this judgment. 60 Mr Johnston, who was given leave to appear for Ms Kerrison as agent, submitted that the judgments of the Commission at first instance and on appeal in these proceedings should be removed from publication and, in particular, removed from the internet pursuant to s 132 of the Evidence Act 1995. We understand, by this application, that Ms Kerrison wishes to have no disclosure of those earlier judgments. Given that they have already been published, the application is then truly that an order be made removing the judgments from the internet and perhaps otherwise being restricted from publication. Section 132 of the Evidence Act is irrelevant in that respect. The relevant provisions are most likely s 164(A) of the Industrial Relations Act 1996 or rule 151 of the Industrial Relations Commission Rules (we have had regard in this respect to Day v Smidmore (No 2) [2005] NSWIR 406, and in particular paragraph [43] of that judgment). We consider that no proper basis has been established to justify the making of the orders sought by Ms Kerrison. 61 In conclusion, we make the following orders:

(i) The respondent shall pay the appellant's costs, on an agreed or assessed basis, in Matter No IRC 3124 of 2000.

(ii) The respondent shall pay the appellant's costs, on an agreed or assessed basis, of costs incurred in the respondent's application to reopen as part of Matter No IRC 7143 of 2003. Otherwise, there shall be no order as to costs in that matter.

(iii) Failing agreement between the parties, the matter may be referred for assessment. The cost of any assessment is to be borne by the appellant.

(iv) The stay granted by Walton J is dissolved. No moneys paid to Ms Kerrison under or as a condition of the stay or arising out of the decision of Schmidt J shall be repayable to the appellant. ____________________

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.