National Australia Bank Limited v KRDV [2012] FCA 543 (28 May 2012) Last Updated: 28 May 2012 FEDERAL COURT OF AUSTRALIA National Australia Bank Limited v KRDV [2012] FCA 543 Citation: National Australia Bank Limited v KRDV [2012] FCA 543 Appeal from: KRDV v National Australia Bank Limited [2011] AATA 210 Parties: NATIONAL AUSTRALIA BANK LIMITED v KRDV File number: NSD 515 of 2011 Judge: COWDROY J Date of judgment: 28 May 2012 Catchwords: WORKER’S COMPENSATION – mental illness suffered by employee – Tribunal finds mental illness caused by meeting at work between employee and supervisor – whether meeting constituted ‘reasonable administrative action with respect to employee’s employment’ – whether meeting was administrative action taken in a reasonable manner – appeal dismissed PRACTICE AND PROCEDURE – suppression orders – whether respondent’s name should be suppressed – risk of increased mental illness if respondent’s name published – suppression order made Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 35 , 44 Federal Court Act 1976 (Cth) s 50 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4 , 5A , 5B , 7 , 14 Supreme Court Act 1986 (Vic) s 18 Cases cited: Advertiser Newspaper Ltd v Mc Allister [2010] SASCFC 32 Anon 2 v XYZ [2008] VSC 466 Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228 BK v ADB [2003] VSC 129 Bropho v Human Rights and Equal Opportunities Commission [2004] FCAFC 16 ; (2004) 135 FCR 105 Commissioner of Taxation v H [2010] FCA 480 ; (2010) 268 ALR 101 Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 ; (2012) 125 ALD 181 Hart v Comcare (2005) 154 FCR 29 Headway Support Services v Wickham [2009] TASSC 99 Herald & Weekly Times Ltd v Williams & Others [2003] FCAFC 217 ; (2003) 130 FCR 435 Hogan v The Australian Crime Commission & Ors (2010) [2010] HCA 21 ; 240 CLR 651 Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 Keen v Workers Rehabilitation & Compensation Corporation [1998] SASC 7056 ; (1998) 71 SASR 42 KRDV v National Australia Bank Limited [2011] AATA 210 ; (2011) 125 ALD 311 Pataki v University of Tasmania [2000] TASSC 144 ; (2000) 9 TASR 397 Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 PVYW v Comcare Australia [2011] FCA 535 Re: a proposed proceeding by a plaintiff as “P.P.P.” (Coldrey J, Supreme Court of Victoria, 27 August 1993) Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247 ‘X’ v Sydney Children’s Hospitals Speciality Network and Anor [2011] NSWSC 1272 Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327 ; (1995) 57 FCR 432 Yu v Comcare [2010] AATA 960 ; (2010) 121 ALD 583 Date of hearing: 11 August 2011 Date of last submissions: 2 April 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 101 Counsel for the Applicant: Mr Howe QC with Mr Snell Solicitor for the Applicant: Sparke Helmore Counsel for the Respondent: Mr Phillips SC with Mr Best Solicitor for the Respondent: Carroll & O'Dea Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 515 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: NATIONAL AUSTRALIA BANK LIMITED Applicant AND: KRDV Respondent JUDGE: COWDROY J DATE OF ORDER: 28 MAY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The appeal be dismissed. The Applicant pay the costs of the Respondent. The Respondent’s name be permanently suppressed Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 515 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: NATIONAL AUSTRALIA BANK LIMITED Applicant AND: KRDV Respondent JUDGE: COWDROY J DATE: 28 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT The National Australia Bank Limited (‘NAB’) appeals pursuant to s 44 of the Administrative Appeals Tribunal Act (Cth) (‘the AAT Act’) from the decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 29 March 2011: see KRDV v National Australia Bank Limited [2011] AATA 210 ; (2011) 125 ALD 311 (‘the AAT decision’). In its decision the Tribunal set aside the decision under review made by NAB on 15 May 2009 and held that the respondent had sustained an injury on 6 June 2008 as defined in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) and that NAB was liable under s 14 of the Act for such injury. The Tribunal found that the injury consisted of an aggravation of an existing stress-related depressive disorder suffered by the respondent, and as such was compensable by NAB under s 5A(1)(c) of the SRC Act. The injury resulted from the conduct of a work-related meeting described hereunder. Pursuant to a confidentiality order made by this Court on 11 August 2011 the respondent will be identified as KRDV. The hearing of these proceedings took place in August 2010. However, judgment was postponed pending the decision of the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 ; (2012) 125 ALD 181 (‘ Reeve ’), a decision delivered on 8 March 2012. This decision directly impacted one of the issues in these proceedings. After judgment was delivered, parties were granted leave to file further submissions as to the effect of Reeve on the proceedings at hand. The final submissions were filed on 2 April 2012. RELEVANT LEGISLATION Section 14 of the Act renders an employer liable to pay compensation to an employee in respect of any ‘injury’ suffered by the employee if such injury results in impairment or incapacity for work. ‘Injury’ is defined in s 5A of the Act which relevantly provides: Definition of injury (1) In this Act: "injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment . [Emphasis added] (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: (a) a reasonable appraisal of the employee's performance; (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment; (c) a reasonable suspension action in respect of the employee's employment; (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment; (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d); (f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. Further, ‘disease’ is defined in s 5B of the Act which relevantly provides: Definition of disease (1) In this Act: "disease" means: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; ‘Ailment’ is defined within s 4 of the Act, which relevantly provides: "ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). FACTS In 1999 the respondent commenced employment at MLC Limited (a subsidiary of NAB) as an administrator. The respondent was subsequently promoted to various positions. In 2005 the respondent was appointed to the role of team leader and in October 2006 she was further promoted to the position of ‘Customer Service Manager’. Due to an internal restructure within NAB in the latter part of 2006, the respondent was made responsible for customer service teams in both Sydney and Melbourne for a period of six to eight months. As part of her duties the respondent travelled regularly to Melbourne. In Melbourne the respondent was made responsible for redeploying or rendering redundant Melbourne-based staff in her area of oversight. During late 2006 and early 2007 the respondent began to suffer from deteriorated sleep and experienced fainting incidents which led her to consult her medical practitioner. The respondent was advised to ‘ take some time out’ . Subsequently the respondent took an extended holiday and on her return in September 2007 worked exclusively in the Sydney office of NAB. In late 2007 NAB announced that the section in which the respondent worked was to be again restructured. As a result the respondent found that her workload greatly increased. In February 2008 the respondent estimated that her workload had ‘ tripled ’. As a result of her continued health problems the respondent sought expert medical assistance. In November 2009 Dr Julian Parmegiani, the respondent’s psychiatrist, expressed the opinion that such fainting episodes were caused by mental and physical exhaustion and diagnosed the respondent as having a ‘ Major Depressive Disorder ’. While employed by NAB the respondent’s performance was assessed quarterly, and she was graded the second highest out of five and was consistently assessed to be a ‘significant contributor’. The grade she was awarded was the highest grade for any comparable employee. Up until March 2008, the respondent’s manager was Ms Pillay with whom the respondent had a relationship described by her as an ‘excellent working relationship’ . Thereafter Ms Pillay took extended maternity leave commencing in March 2008 and Mr Brendan Daly was appointed to replace her. Prior to 5 June 2008, Mr Daly had not raised any issues relating to the respondent’s performance with her nor had he voiced any of his opinions to her concerning her ability to do her work. However, on 5 June 2008 two meetings (‘the meetings’) took place, which the parties agree were the ‘ trigger ’ for the respondent taking extended sick leave. THE AOM MEETING The first meeting held on 5 June 2008 was known as an Active Operation Management meeting (‘the AOM meeting’). Such meetings were regularly held. This meeting was attended by eight team leaders (including the respondent) and chaired by Mr Daly. The purpose of such meeting was described by the Tribunal at [19] of its decision as follows: Managers within the Corporate Client section held weekly AOM meetings to plan and forecast the work load of the section and their respective teams. Each manager was required to estimate the amount of work that had been allocated to their team at a particular point and estimate the resources available — primarily labour — to complete that work. Where the manager estimated that, based on its available resources, a team would complete its allocated work within say three days it was described as being “over by three days”; one with spare capacity was described as being “under by three days”. The planning meetings were a tool used by managers to assess and discuss their respective current and anticipated workloads. A team assessed as being “under” was expected to donate resources to teams assessed as being “over”. A whiteboard was used to assist the participants to assess which teams were in greater need of additional resources. According to Mr Daly an objective of the 100 day plan was the reduction of work “turnaround” to 24 hours across all teams by 30 June 2008. The respondent claimed that she was ‘picked on and singled out for criticism by Mr Daly at that meeting’ ; and that she was ‘very upset by the end of the AOM Meeting’ . Mr Daly conceded that the respondent may have been distressed by the end of the AOM meeting, although he said it wasn’t apparent to him at that time. THE CASUAL CHAT MEETING Immediately following the conclusion of the AOM meeting Mr Daly asked the respondent to meet with him. Such meeting was held in a private room and only involved Mr Daly and the respondent. Before the Tribunal Mr Daly referred to this meeting as a ‘casual chat’ meeting (‘the casual chat meeting’). It was held, according to Mr Daly, to ‘ discuss what appears to be troubling her ’, i.e. the respondent. The Tribunal set out the respondent’s full account of this conversation at [27] of its decision. The Tribunal accepted that at such meeting Mr Daly accused the respondent of having a negative attitude to her work, saying ‘ your attitude is negative and you are not on board’ ; that she ‘ needed to make a decision about what she was going to do next ’; and stated that ‘ If things continue like this you may have no choice because I don’t see you having a role in corporate clients and possibly anywhere in the organisation if things continue ’. The respondent gave evidence that Mr Daly ‘always appeared to be in a rush and she found his management style abrasive and confrontational’ . Mr Daly gave evidence to the Tribunal that in his dealings with the respondent she ‘exhibited a degree of despondency’ . The Tribunal found at [32] that it was common ground that by the end of the meeting the respondent appeared ‘ extremely stressed and sought out Ms Pillay ’. On 26 June 2008 the respondent sent an email to Mr Daly stating that she found his comments most distressing and stating that despite his comments that she might have no alternative but to resign, she had no intention of doing so. Later in the same week the respondent was certified unfit for work by Dr Wong. Towards the end of July 2008 the respondent consulted a psychologist, Dr Patrick Jabour. The respondent has not worked since 5 June 2008. FINDINGS OF THE TRIBUNAL The Tribunal at [33] determined that the key issue before them was whether the condition suffered by the respondent was ‘as a result of’ reasonable administrative action taken in a reasonable manner. The Tribunal observed that under the Act an employee is taken to have suffered an ‘injury’ on the day they first sought medical treatment for such injury: see s 7(4) of the Act. The respondent submitted that her depressed condition occurred in January 2007 when she first saw her medical practitioner for stress-related sleep dysfunction. The Tribunal at [37] accepted the evidence of Dr Parmegiani that the respondent was likely suffering from depression prior to the meetings on 5 June 2008. However the Tribunal found that these meetings could constitute ‘an aggravation’ of such ailment for the purposes of the Act (see s 5A(1)(c) of the Act. NAB contended before the Tribunal that the AOM meeting constituted an ‘ appraisal of the applicant’s performance or counselling action in respect of her performance ’ and thus would fall within the ambit of subsections 5A(2)(a) and 5A(2)(b) of the Act. Accordingly, it was not liable for the alleged ‘injury’ as it would fall within the ambit of ‘reasonable administrative action’: see s 5A(2)(a) of the Act. The respondent disputed that the actions relied upon by NAB constituted ‘reasonable administrative action’. At [54] of its decision, the Tribunal found that, applying the ejusdem generis rule , the action referred to in s 5A did not extend to any managerial or administrative action. The Tribunal rejected NAB’s submission that the exchange between Mr Daly and the respondent during such AOM meeting constituted ‘ administrative action... in respect of the [respondent’s] employment ’. The Tribunal found at [59]: On Mr Daly’s account, managers were encouraged to actively participate in an exchange of information and opinions at the meeting. At its highest the applicant’s evidence is that Mr Daly challenged her decision not to accept resources donated by others; they argued; she ultimately acquiesced. In our view it is something of a stretch to suggest that this exchange constituted an appraisal of the applicant’s performance, informal counselling, something comparable or something done in relation to those actions. We are not satisfied that the exchange constitutes “administrative action...in respect of the applicant’s employment”. As to the casual chat meeting the Tribunal found that such meeting fell within the scope of administrative action contained in subsections 5A(2)(a) of the Act, but it was not taken reasonably. The Tribunal said at [62]: Counsel for the applicant contends that the second meeting did not constitute reasonable administrative action because as Mr Daly was at pains to point out, he had intended that the meeting be nothing more than a casual chat and not a formal disciplinary or counselling session. Whatever he might have intended as things turned out in the course of the meeting, Mr Daly raised concerns about the applicant’s performance and attitude and advised that things must change. That discussion in our constitutes an appraisal of the applicant’s performance or a counselling action and falls within the scope of ss 5A(2)(a) and 5A(2)(b) of the definition of “administrative action”. However, the Tribunal said that the central issue was whether such meeting was conducted in a ‘reasonable manner’ as required by s 5A of the Act. The Tribunal concluded that it was satisfied that the casual chat meeting was not taken in a reasonable manner. The Tribunal summarised its conclusion as follows at [78]: The [respondent] suffered an injury within the meaning of the Act. The injury was not the result of reasonable administrative action taken in a reasonable manner. Accordingly NAB is liable to pay compensation in accordance with the Act. It follows that the decision under review must be set aside. THE APPEAL NAB raised four principal grounds of appeal. The first issue of law on the appeal raises the question of the construction of the expression ‘ reasonable administrative action taken in a reasonable manner in respect of the employee’s employment ’ as appears in s 5A(1) of the SRC Act. The second issue raises the question of whether the Tribunal complied with its statutory obligation under s 43(2)(b) of the AAT Act to provide reasons for its decision including its findings on material questions of fact. The third ground is whether in the absence of any finding concerning ‘material points of difference’ in the evidence, it was open to the Tribunal to find that reasonable administrative action was not ‘taken reasonably’. The fourth ground is whether it was open to the Tribunal to find that the respondents post-restructure position was not a source of concern to her given her claims to the contrary. On this issue, no oral submissions were made by either party. GROUND 1: CONSTRUCTION OF ‘INQUIRY’ CONTAINED IN SECTION 5A OF THE SRC ACT NAB contends that there is no justification for the Tribunal to have confined the operation of s 5A(2)(f) by reference to the kind of matters referred to in s 5A(2)(a)-(e) of the SRC Act. The issue concerning the interpretation of s 5A of the Act has been resolved by the decision in Reeve . Although the applicant has not conceded the correctness of such decision, this Court is bound by its findings. The decision comprises a judgment of Gray J, and a joint judgment of Rares and Tracey JJ. Both judgments reached the same conclusion. The facts in such decision are strikingly similar to those in the present appeal. In Reeve a bank officer who had been subjected to stress resulting in an ‘injury’ claimed compensation under the Act resulting from such injury. The ‘injury’ resulted from a scheduled meeting to discuss the performance of Mr Reeve and his work team, and a subsequent negative appraisal. In his decision Gray J, commencing at [23] considered the interpretation of s 5A and at [33] his Honour said: In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to “legitimate human resource management actions”. Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “ injury ”, unless the action taken was not reasonable, or was not reasonably taken. [Emphasis in original] Significantly, Gray J pointed to the conduct ‘ with respect to the employment relationship that the particular employee has with the employer ’ to which the exclusion is directed. Rares and Tracey JJ in their joint decision arrived at the same conclusion. At [60] their Honours said: The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “ in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson [2010] FCAFC 88 ; (2010) 185 FCR 566 at 586 [72] - [73] per Dowsett J, with whom Spender J agreed. Rares and Tracey JJ found that the meeting at which Mr Reeve’s performance was considered unfavourably by his employer and which resulted in his stress was not administrative action taken in respect of his employment, but instead was ‘ part and parcel of his employment ’. At [64] their Honours said: The CBA’s argument that the wording of s 5A(2)(e) was broad enough to comprehend the teleconferences and uses of customer surveys in them as being done in connection with the appraisal of managers such as Mr Reeve also fails. The customer surveys may have been obtained and provided to Mr Reeve in connection with a future appraisal of his performance. The issue that now arises is whether what was done was done in connection with (s 5A(2)(e)) reasonable administrative action that consisted of a reasonable appraisal (s 5A(2)(a)). The teleconferences and use in them of the customer surveys were actions not done in connection with any appraisal of the employee’s performance; they were done as part of the ordinary course of Mr Reeve’s employment and in appraising the performance of his branch. At [61] the Tribunal in the proceedings now before the Court held, inter alia: As the Tribunal commented in Radulovic “administrative action” does not extend to management actions at large. It is limited to the examples listed in s 5A(2) and “anything reasonable done in connection with” those examples, and to other administrative action that falls within categories comparable to those listed. The action described by Counsel for NAB effectively catches all conduct by Mr Daly that relates to the applicant. In our view this class of conduct does not constitute administrative action. The Full Court’s decision in Reeve confirms NAB’s submissions that the ejusdem generis reasoning of the Tribunal in interpreting s 5A(2) of the SRC Act is an error. The joint judgment in Reeve at [62] states: The non-exhaustive list of examples of “reasonable administrative action” in s 5A(2) could not confine the meaning of that expression as used in s 5A(1). So much follows from the chapeau to s 5A(2) that contained the words “without limiting” in referring to the expression “reasonable administrative action”: Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J with whom Barwick CJ at 674 and Aickin J at 680 agreed. Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1). Likewise, s 5A(2)(e) and (f) provided that this expression included anything reasonably done in connection with either any of the actions in paragraphs 5A(2)(a)-(d) or the employee’s failure to obtain a different position or to obtain or retain a benefit in connection with his or her employment. NAB acknowledges that the content of the AOM meeting relating to Mr Daly’s arrangements for the business of the respondent’s section and the respondent’s obligation to attend AOM meetings could not amount to administrative action taken ‘in respect of’ the respondent’s employment. However NAB submits that the exchanges which took place at the AOM meeting between Mr Daly and the respondent which specifically concerned her employment fall within the definition of administrative action taken ‘in respect of’ the respondent’s employment within the meaning of s 5A. NAB submits that both the context surrounding the meeting itself and what occurred at the meeting are relevant to a proper characterisation of the specific exchanges in question. NAB relies upon Mr Daly’s observations that the respondent’s team was not showing the same signs of development as other teams; that the low level of engagement with the new initiatives was impacting upon the respondent’s team; that the respondent was not delivering on normal and basic requests as part of a business process; that the respondent’s inability to cope with the workload appeared to be due to performance as a manager and her attitude to change and that the respondent was not following the processes put in place across the teams and was not ‘on board ’ for the end of financial year planning. Further, NAB relies upon Mr Daly’s evidence relating to the respondent’s participation in the AOM meeting, namely that she sat with her arms folded and stared off into space for much of the meeting; that the respondent demonstrated ‘ particular recalcitrance at the meeting ’; that the respondent had a different view about sharing or work between the teams and did not participate appropriately in the meeting and that the respondent’s body language was such ‘ that everyone knew she wasn’t going to participate or contribute. She literally disengaged from the process ’; that the respondent displayed ‘ passive belligerence ’ and refused to accept resources. NAB submits that the exchanges between Mr Daly and the respondent are to be assessed having regard to the context of the AOM meeting. It submits that Mr Daly’s concern for the performance of the respondent’s team and the respondent’s participation in the AOM meeting is a relevant consideration in determining whether NAB’s conduct, via Mr Daly, was administrative action taken ‘in respect of’ the respondent’s employment; that Mr Daly’s directions to overcome the respondent’s resistance to work sharing is not simply action ‘ forming part of the everyday duties or tasks ’ of NAB (see Reeve at [60]); nor is it ‘part and parcel’ of the respondent’s employment (see Reeve at [61]). Instead, the issuing of directions to the respondent by Mr Daly was made ‘in respect of’ but apart from the respondent’s ordinary duties (see Reeve [63]); was specific to the respondent’s work (see Reeve at [69]), was designed to deal with that employee as an individual in respect of his or her employment (see Reeve at [73]); and comprised the taking of a specific step under the respondent’s contract of employment (see Reeve at [74]). Taking these matters into consideration, NAB submits that the directions of Mr Daly constituted in effect taking informal disciplinary action within the meaning of s 5A(2)(e) or taking a step ‘in connection therewith’; and the taking ‘in connection with’ reasonable counselling action within the meaning of s 5A(2)(e). Alternatively, if the above submissions are not accepted, NAB submits that the action taken by Mr Daly nevertheless amounted to administrative action within the meaning of s 5A(1) and that the giving of the direction was specific action targeted and intended to deal with the respondent as an individual employee, unlike the circumstances which prevailed in Reeve where it was non-targeted implementation of a workplace policy and restructuring. FINDINGS The submissions of NAB must be considered within the overall context of the purpose of the AOM meeting. The meeting was not called for the purpose of discussing the respondent’s individual performance, nor that of her team. It was a meeting, as set out above, attended by eight team leaders. Such meetings were held weekly, and the purpose in holding such meetings was to plan and forecast the work load of a section and their respective teams. During the meeting, exchanges took place between those persons present relating to the amount of work which had been allocated, the resources and performance. Even if during the course of the meeting statements were made by Mr Daly which could be said to have been a reasonable appraisal of the respondent’s performance, it could not be said that the AOM Meeting was something to which the exclusion in s 5A(1) had application, because it was not ‘ administrative action taken ... in respect of ’ the respondent’s employment. The joint judgment in Reeve has drawn the distinction between matters arising in the course of an employee’s employment and action taken ‘in respect of’ the employee’s employment: see joint judgment at [60] which is reproduced above at [37]. To qualify for the exemption in s 5A(1) only conduct taken ‘in respect of’ the employment will satisfy such requirement. That action must be specific action directed to the employee’s employment. For these reasons it could not be said that the AOM meeting, nor any part thereof, constituted reasonable administrative action with regard to the respondent’s performance under s 5A(2)(a); nor could it be construed as a reasonable counselling action (s 5A(2)(b)); nor could it be said to be anything reasonably done in connection with either of those actions (see s 5A(2)(e)). The purpose of the AOM meeting was nothing of that kind. Rather, it was directed solely to the performance of the company and of the teams reporting at that meeting. Even if, contrary to the Court’s finding, a portion of the AOM meeting was administrative action taken ‘in respect of’ the respondent’s employment, it was not taken in a reasonable manner because the administrative action occurred without notice to the respondent. As was observed by Bleby J in Keen v Workers Rehabilitation & Compensation Corporation [1998] SASC 7056 ; (1998) 71 SASR 42 , whether conduct can be classified as reasonable is a question of fact. His Honour said at 63: In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented. Although it is a finding of fact as to whether the action was taken in a reasonable manner, that fact depends in part on inferences to be drawn from the primary facts, on the weight to be given to particular primary facts and on the fact finder’s assessment of what is reasonable in all those circumstances. It is a jury question committed, in this case, to the Review Officer. However, the determination as to what is reasonable in the established circumstances, being in the nature of an inference to be drawn from the primary facts, is a factual conclusion that the Tribunal, in most cases, will be able to make for itself. Of course the Tribunal should give respect and weight to the finding reached by the Review Officer on that topic, but in the end, it is open to the Tribunal to reach its own conclusion on the topic and to give effect to it: see Warren v Coombes (at 551) per Gibbs ACJ, Jacobs and Murphy JJ. For these reasons, whilst the Court finds that the Tribunal’s ejusdem generis approach to the interpretation of s 5A was erroneous, no part of the AOM meeting constituted reasonable administrative action. Further, even if such meeting could be considered to be administrative action, it was not taken reasonably with respect to the respondent’s employment. Nor did the casual chat meeting without notice to the respondent satisfy the requirement of being reasonable: see Yu v Comcare [2010] AATA 960 ; (2010) 121 ALD 583 at [42] . GROUND 2: ADEQUACY OF REASONS NAB submits that the Tribunal left undecided ‘ significant material factual issues ’, namely a finding as to versions of the differing conversations between Mr Daly and the respondent at the casual chat meeting. NAB submits that pursuant to s 43(2)(b) of the AAT Act, reasons are required, and that a decision-maker must provide reasons for the decision: see Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247 per Kirby P at 258F; Pataki v University of Tasmania [2000] TASSC 144 ; (2000) 9 TASR 397 per Cox CJ at 401, and Advertiser Newspaper Ltd v Mc Allister [2010] SASFC 32 per Doyle CJ at [31] (Gray and Sulan JJ agreeing). In oral submissions, NAB made the following submission: Rather than adjudicating the divergence and making findings, instead it extracted points of common ground, knitted them together, and came up with a tapestry that, with respect, bore no resemblance to Mr Daly’s versions, and in circumstances where it did not reject that version, it was not permitted on the strength of the points of common ground to find unreasonableness on his part. The Tribunal had before it two versions of the events that occurred at the casual chat meeting. As to the casual chat meeting the Tribunal observed that there was conflicting evidence concerning Mr Daly’s claims that there were shortcomings ‘in the applicant’s performance or attitude’ (see [63]) and at [65] noted that ‘the assessment of what was said at the meeting is made difficult giving the conflicting evidence, the passage of time, the absence of independent evidence and the emotive quality of the discussions’ . However the Tribunal then continued: Despite significant points of disagreement there is nonetheless some common ground about what was said at that meeting. First, immediately after the AOM meeting Mr Daly requested the applicant meet with him alone and did not foreshadow what he intended to discuss. Second, the meeting opened with Mr Daly accusing the applicant of being negative in the workplace and raising a number of performance issues. Third, he announced that if her performance and behaviour did not improve 'we would need to progress this further” and he would “be left with few options”. Fourth, the applicant raised the issues of retrenchment and her classification within the restructure. Fifth, Mr Daly said that unless matters improved the applicant was unlikely to succeed in obtaining alternative employment within NAB. The Tribunal therefore made its factual findings based upon matters which were common ground and it was accordingly unnecessary for it to resolve the points of difference between the conflicting versions of the witnesses as to the events of the casual chat meeting. This is apparent from the Tribunal’s findings at [66] where it said: The only material points of difference about the content of those discussions are whether, as Mr Daly claimed, the applicant immediately responded to his opening comments about her negative attitude etc with the comment that she should have been retrenched in the recent restructure; whether, as she claimed, Mr Daly retorted, “you won’t have the case” after she mentioned constructive dismissal; and, whether she had accused Mr Daly of bullying and harassment. At [67] the Tribunal found that Mr Daly, as was admitted by him, had become increasingly frustrated and annoyed with the respondent during the preceding eight weeks. Further, the Tribunal found that Mr Daly saw the AOM meeting as being ‘ the tipping point ’ and that both Mr Daly and the respondent perceived it as having ‘ an undertone of tension ’. The Tribunal continued (in respect of the casual chat meeting): In our view the following considerations are relevant to an assessment of whether the meeting was undertaken “in a reasonable manner”. First, as Mr Daly admits, in the eight weeks preceding the meeting he had become increasingly frustrated and annoyed with the applicant and saw the AOM meeting as being the “tipping point”. While the applicant and Mr Daly gave different accounts of that meeting, both perceived it as having an undertone of tension: Mr Daly thought that the applicant had presented as especially negative and uncooperative; she thought she was singled out for criticism. We think it more probable than not that despite Mr Daly’s self assessment that he managed to keep his emotions in check, he took his feelings of annoyance and frustration into the second meeting and they infected its tenor. Second, the relationship between the parties was in its infancy and as agreed far from robust. As such Mr Daly’s feelings of annoyance and frustration were likely to be acutely perceived by the applicant. Third, the applicant was given no notice of what was to be discussed and was moved straight from the AOM meeting into another. In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 , the joint judgment of the High Court made it plain that in a civil matter, inferences may be drawn provided that the inferences do more than merely give rise to conflicting inferences of ‘ equal degrees of probability ’ resulting in conjecture. The Court said at 5: But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678. In this instance the Tribunal reached its conclusions based upon factual matters which were common ground, and upon the inferences which it was entitled to draw from the facts. Such conclusions clearly favoured the respondent’s version of the meeting. NAB submits that if the extracts of common ground are considered and ‘decontextualised’ and regard is not given to whether Mr Daly’s version should be accepted, there is no ‘hint’ in any finding by this Tribunal why Mr Daly may have made the statements he did, nor any consideration of whether he was acting under the unreasonable provocation of hostility that the respondent evinced. Furthermore, NAB submits that no primary findings at all have been made in respect of the contest between Mr Daly and the respondent and there has been no real treatment of the factual background against which the meeting was conducted and what occurred in the course of it. The mere fact that the Tribunal did not specifically reject Mr Daly’s evidence is immaterial since it can be inferred that the Tribunal did so. The Tribunal considered both versions, and for the reasons given, it preferred the evidence of the respondent. The Tribunal in these circumstances was not obliged to state that it explicitly rejected Mr Daly’s version of the events of the casual chat meeting. NAB’s strictly analytical approach to the Tribunal’s finding is not appropriate to the reasoning of a tribunal: see Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327 ; (1995) 57 FCR 432 at 444. The Court is satisfied that the Tribunal provided adequate reasons and discharged its statutory obligation by the reasons it provided. GROUND 3: WAS THE ACTION TAKEN REASONABLY? The Tribunal said at [58]: It is contended for NAB that this meeting [the AOM meeting] constitutes an appraisal of the applicant’s performance or counselling action in respect of her performance (ss 5A(2)(a) and 5A(2)(b)). Plainly the meeting as a whole could not be said to constitute action of that type “in respect of the applicant’s employment”. It will be recalled that it was a meeting of managers held to plan workloads and allocate resources within the Corporate Clients section. The only basis “the action” could be said to fall within the scope of the provision, is if it is limited to the exchange that took place between Mr Daly and the applicant. (a) Application of Statutory provisions NAB submits that the language used by the Tribunal is erroneous insofar as the words ‘ in respect of the applicant’s employment’ are referred to. Rather, the words used in s 5A are ‘in respect of the employee’s employment ’. NAB submits that the language of s 5A is directed to ‘ in respect of the employee’s employment’ and not, ‘in respect of the applicant’s employment ’. NAB refers to the decision of John Holland Group v Robertson [2010] FCAFC 88 ; (2010) 185 FCR 566 at [73] , where Dowsett J (with whom Spender J agreed) commented that: The Act is very much concerned with conditions in which employees work and their terms of engagement, rather than how they may be classified. NAB further submits that action may be taken in respect of a person’s employment other than on a ‘ person-particular basis ’; that the expression does not refer to or require exclusivity of effect or impact; that a narrow approach to the expression would not give effect to the evident purposes of s 5A; that the words ‘in respect of’ are generally regarded as having a wide import; and that the Tribunal’s approach did not conform to the approaches taken by courts when construing similar exclusionary provisions. Finding This discrete submission can be readily addressed, since the Court finds that NAB’s submissions focus too much upon the language used by the Tribunal. The Tribunal’s decisions should not be approached in this way: see Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708, as referred to in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The Tribunal applied the legislation correctly, as seen in the decision at [59] (reproduced above at [25]). The Tribunal substituted the words ‘applicant’s’ employment instead of ‘ employee’s’ employment, but indicated that it was merely giving effect to the requirement of s 5A(1) when it said: We are not satisfied that the exchange constitutes administrative action... in respect of the applicant’s employment. As to NAB’s submission concerning the construction of the words ‘in respect of’, such issue has been now decided by Reeve at [60]. That is, the action must be directed to the person’s employment per se, and not merely comprise administrative action taken in respect of ‘ everyday duties or tasks that the employee performed in his or her employment of job ’: see Reeve at [60]. The relevant paragraph states: Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson [2010] FCAFC 88 ; (2010) 185 FCR 566 at 586 [72] - [73] per Dowsett J, with whom Spender J agreed. (b) ‘Reasonable’ NAB has referred to the fact that the versions of events at the AOM meeting attended by Mr Daly and the respondent and others differed, and submit that the Tribunal made no factual finding that Mr Daly did or said anything untoward at the AOM meeting. NAB relies upon the fact that the Tribunal found at [63] of its decision that it was not unreasonable for Mr Daly, at the conclusion of the AOM meeting, to raise concerns with the respondent concerning her performance and attitude with her. NAB submits that this observation is a significant finding. NAB also relies upon the fact that nothing untoward resulted from Mr Daly’s conduct at the AOM meeting and that it was not unreasonable for Mr Daly to discuss the respondent’s performance at the casual chat meeting following the AOM meeting. NAB further submits that ‘ taking feelings of annoyance and frustration into a meeting ’ cannot of itself make the meeting unreasonable; that ‘ whether feelings of annoyance and frustration infected the tenor of the meeting must depend on what was said and done at the meeting ’; and that ‘ the infancy and non-robust nature of the relationship between Mr Daly and the respondent was a neutral factor ’. NAB has referred the Court to decisions in which the word ‘reasonable’ or ‘reasonableness’ have been decided such as Bropho v Human Rights and Equal Opportunities Commission [2004] FCAFC 16 ; (2004) 135 FCR 105 in which French J (as he then was) observed at [79] that something is done ‘reasonably’: ... if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. See also Headway Support Services v Wickham [2009] TASSC 99 per Blow J at [14]; Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 per Rein J at [71]-[74]. Finding The matters relied upon in support of this submission fail to recognise the Tribunal’s factual findings concerning the demeanour and the emotions of Mr Daly and the respondent during the AOM meeting, and the Tribunal’s findings that Mr Daly’s feelings of annoyance and frustration were carried into the casual chat meeting; with the result that ‘ the [casual chat] meeting quickly descended from the quick chat into something much more serious ’, irrespective of the fact that ‘ Mr Daly did not foreshadow what he intended to discuss ’. Mr Daly, when conducting the AOM meeting, did not suggest that the meeting had anything to do with performance management or counselling. Rather, it was a meeting held to assist NAB reach its objectives under its 100 day plan strategy. In contrast, the casual chat meeting was found as a fact by the Tribunal to be related to the respondent’s employment. The Tribunal continued at [68]: Mr Daly’s decision to meet with the applicant on 5 June 2008 was a spur of the moment decision. We accept that he did not set out to formally counsel or discipline the applicant or, as she believes, to bully, threaten or intimidate her. However that she took the words, to which he admits using after criticising her performance — “we would need to progress this further” and “[he would] be left with few options” — as a veiled threat, is hardly surprising. The unavoidable inference to be drawn from those comments is that the applicant’s employment was under threat unless matters improved. They illustrate that whatever Mr Daly’s intention might have been for calling the meeting, it quickly transcended into something more than an informal chat. In our view Mr Daly’s decision to initiate a meeting with a subordinate without notice about a matter of some consequence in circumstances where he felt annoyed and frustrated, was a serious error of judgement. While other factors no doubt contributed to the strength of the applicant’s reaction, that she found the meeting distressing is not surprising in those circumstances. We are not satisfied that the action was taken in a reasonable manner. The Tribunal thus concluded that notice of the casual chat meeting should have been given if Mr Daly was going to raise the matters that were of concern to him with the respondent and particularly if he intended to raise them in the manner in which he did. It was the tension-charged casual chat meeting, coupled with the absence of notice to the respondent of the serious matters being raised, which the Tribunal found was unreasonable. The discussion reached the point that Mr Daly said he would be left with ‘few options’; this was the ‘veiled threat’, as found by the Tribunal. Significantly, the Tribunal drew such conclusions based upon evidence which was common ground. The Court concludes that there was ample evidence before the Tribunal to arrive at such conclusion and that the Tribunal’s reasoning justifies its findings. The Court rejects NAB’s third ground of appeal. GROUND 4: OCCURRENCE OF ‘INJURY’ The fourth ground of appeal raises for consideration the question whether it was open to the Tribunal to find that the respondent’s post-restructure position was not of concern to her given her claims to the contrary. In written submission NAB referred to remarks allegedly made by the respondent at an interview held on 28 October 2008 with an NAB rehabilitation officer. The remarks suggested that ‘the three key issues’ troubling the respondent were the restructure; the workload; and the meeting with Mr Daly. NAB referred the Court to the definition of ‘injury’ considered by the Full Court in Hart v Comcare (2005) 154 FCR 29 , as relevant to a consideration of the time when the respondent first sustained her injury. No oral submissions were addressed on this issue by either party. In these circumstances the Court infers that this ground of appeal is abandoned. The Court also observes that there was ample evidence before the Tribunal to support its finding that it was the distressing events of the casual chat meeting which was causative of the respondent’s ‘injury’ as defined, by way of an aggravation of an existing condition. CONCLUSION The Court is satisfied that the challenges to the Tribunal’s decision fail. Accordingly the Court will order that the appeal be dismissed with costs. SUPPRESSION OF RESPONDENT’S IDENTITY An application has been made pursuant to s 50(1) of the Federal Court Act 1976 (Cth) (‘the Federal Court Act’) that the Court prohibit the publication of the name of the respondent. Section 50(1) of the Federal Court Act provides: Prohibition of publication of evidence etc. (1) The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. When the hearing of these proceedings commenced the Court granted an interim order pursuant to s 50(1) of the Federal Court Act as it was aware that the Tribunal had made an order before it pursuant to s 35(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth). At that stage of the proceedings the Court was not fully apprised of the facts and the making of the interim order was considered appropriate until the appeal had been fully heard. The application is now sought on a permanent basis and such application is not opposed by NAB. The application is made upon the ground that the respondent has been diagnosed with major depression resulting from her employment with NAB. The evidence discloses that the respondent, who remains unemployed because of such condition, is in receipt of medication for her condition and that she is under the regular treatment of Mr Patrick Jabour, a psychologist. The evidence contained in the affidavit of the respondent sworn on 17 August 2011 avers that if the respondent’s name is published, it will have a detrimental effect upon her wellbeing and particularly her mental health and adversely impact upon others who do not know her. The respondent fears that should her name be publicised, she will be ‘wrongly labelled’. She claims that she frequently feels ashamed, stigmatised and embarrassed by the events which have happened resulting from the conduct of NAB and that she is endeavouring to return to the state of her pre-injury mental health. In written submissions made in support of the application for the continued suppression order, the respondent acknowledges the basic principle that the Court is usually to exercise jurisdiction in open court: see Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228 at 232 and at 253 per Deane J; Commissioner of Taxation v H [2010] FCA 480 ; (2010) 268 ALR 101 at [14] ; that s 50 of the Federal Court Act allows an exception to that principle and that when applying s 50 of the Federal Court Act, the Court must consider the risk of prejudice to the administration of justice in deciding whether to make a suppression order ( Australian Broadcasting Commission v Parish at 233-235 per Bowen CJ and 255-257 per Deane J). Mr Patrick Jabour, psychologist, in his report dated 14 August 2011 stated that he has been treating the respondent since 24 July 2009 for major depression. Mr Jabour states that the respondent’s symptoms indicate significant levels of depression, anxious arousal, anger and irritability and impaired self esteem. The report continues: KRDV continues to suffer from major depression, impaired self-esteem, and a lack of confidence. KRDV currently fulfils the DSM IV criteria for major depression. Although she is motivated to function and her level of focus is strong for short periods of time she is excessively depressed and anxious. This is exacerbated by extreme concern about her future. Mr Jabour states that only close family and friends are aware that the respondent is not at work and that she has accordingly been protected by confidentiality since the inception of the proceedings against NAB and that such confidentiality has ‘ helped give her the courage to maintain her drive and focus ’. Mr Jabour’s report contains: The maintenance of her privacy is paramount and she is particularly concerned about being stigmatised when she seeks future employment. Mr Jabour concluded: The need for KRDV to continue treatment after this long and protracted legal process is essential if she is to rebuild and continue to reconnect with resilient and pleasurable activities that enhance self-confidence and return her to the workforce in a self assured manner. In my opinion the application of a permanent order restricting the publication of KRDV’s name would assist this considerably. CONSIDERATION The Court must evaluate the nature and extent of the hardship which will be suffered by a litigant or a witness in the event that a confidentiality order is not made: see PVYW v Comcare Australia [2011] FCA 535 at [15] . Should it be established that if the identity of an applicant were made known and this fact would cause such applicant to be deterred from bringing proceedings, the Court may regard this as a sufficient reason for granting an order preventing publication. In Herald & Weekly Times Ltd v Williams & Others [2003] FCAFC 217 ; (2003) 130 FCR 435 the Full Court considered whether a suppression order granted by the Tribunal should be continued in this jurisdiction. At [30] Merkel J said: The fundamental differences between the AAT and the court, and the different criteria that are to be applied in respect of suppression orders under s 35 of the AAT Act and s 50 of the FCA Act, afford strong support for the view that there is no legislative intention that the privacy and confidentiality in relation to a matter in the AAT should continue when that matter, or a part thereof, comes before the court. When the matter comes before the court pursuant to ss 44 or 45 of the AAT Act, s 39B of the Judiciary Act or s 5 of the Administration Decisions (Judicial Review) Act 1977I (Cth) the criterion prescribed by s 50 must be satisfied before a suppression order may be made. His Honour continued relevantly at [31]: Thus, before exercising the power conferred by s 50 of the FCA Act the primary judge was required to determine whether it appears that the order sought was “necessary in order to prevent prejudice to the administration of justice”. Section 50 is concerned with prejudice in respect of the exercise by the court of the judicial power of the Commonwealth, rather than prejudice in respect of the exercise by the AAT of the administrative power of the Commonwealth. Merkel J recognised that embarrassment or damage resulting from publicity would be a relevant factor if it was such that a litigant would be deterred from litigating and at [36] said, inter alia: If that situation arises it can be weighed in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice. However, that situation has not arisen in the present case. The Full Court observed that mere embarrassment was not of itself sufficient for the Court to grant a suppression order. In Hogan v The Australian Crime Commission & Ors [2010] HCA 21 ; (2010) 240 CLR 651 the High Court considered an application made under s 50 of the Federal Court Act in respect of the non-publication of the financial affairs of a well-known public figure. At [29] the High Court (French CCA, Gummow, Hayne, Heydon & Kiefel JJ) considered the operation of s 50 of the Federal Court Act. At [30]-[32] the High Court said: 30. As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish , that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest. 31. It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics. 32. If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may ... make such order” is to be understood in this sense. In BK v ADB [2003] VSC 129 Nettle J granted an order under analogous legislation, s 18(1)(c) of the Supreme Court Act 1986 (Vic). In that decision his Honour had evidence before him of psychological harm. Significantly such evidence satisfied the Court that unless a suppression order were made the applicant ‘ would reasonably be deterred from bringing the proceedings unless public disclosure of her identity were prevented ’: (see [13]). Under the same legislation, in Anon 2 v XYZ [2008] VSC 466 Kaye J considered an application to set aside a suppression order in circumstances in which the plaintiff claimed damages for alleged sexual assault by the defendant. Kaye J, having reviewed numerous authorities, drew a distinction between the making of such an order at the interlocutory stage compared to a final hearing and concluded that at the interlocutory stage, the rule as to prohibition of publication of the identity of parties to the litigation was by no means as rigorous compared to a contested application. Ultimately, the Court must weigh up the consideration of whether it is ‘necessary’ to prevent prejudice to the administration of justice that the suppression order sought should be granted. In certain instances, such an order has been made where psychiatric damage is alleged to result if a suppression order was not granted. In Re: a proposed proceeding by a plaintiff as “P.P.P.” (Coldrey J, Supreme Court of Victoria, 27 August 1993) the Court, faced with such evidence and mindful of the fact that a plaintiff would be deterred from proceeding with litigation if the proceedings became public, granted a suppression order under the Victorian legislation. Coldrey J concluded: Having given the matter anxious consideration, I have concluded that, in applying the principles I have enunciated, I should make the order here sought on the ground relating to the applicant’s current medical condition. However, I should add that a ground also advanced in the materials as warranting anonymity, namely, the potential embarrassment of the applicant’s family, is not one which, in all the circumstances, would have justified this order. Nor would the mere creation of embarrassment for the applicant herself provide a sufficient ground for the dispensation sought. FINDING The Court is satisfied that the existing suppression order should be made permanent, for the following reasons: (a) the evidence shows that the health of the respondent is likely to be prejudiced if the suppression order is not continued. (b) these proceedings do not involve any public interest; nor will any significant precedent arise due to the factual circumstances. (c) These proceedings have been heard in open court, and there is no request that the report of the proceedings be suppressed. (d) The court respectfully adopts the observations of Adams J in ‘X’ v Sydney Children’s Hospitals Speciality Network and Anor [2011] NSWSC 1272 wherein his Honour found at [15] that the making of ‘pseudonym orders interfere with open justice only minimally’. The Court accordingly orders that the name of the respondent be permanently suppressed. I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 28 May 2012