Application by Krcho, Daniel - [2020] FWC 181

1

Fair Work Act 
2009 
s 789FC - Application for an order to stop bullying

Daniel Krcho
(AB2018/637)

DEPUTY PRESIDENT SAMS SYDNEY, 23 JANUARY 2020

Application for an FWC order to stop bullying – second application for interim orders – 
unsuccessful appeal – third application for interim orders, seeking recusal of Commission 
member – anonymisation of applicant and his wife’s names – orders sought to substantially 
vary earlier interim orders decision subject to unsuccessful appeal, restoration of undertaking 
and confidentiality of medical and financial records – recusal application ‘conditional’ on the 
Commission agreeing to vary earlier decision and restore Undertaking that no action be taken 
by the University to effect applicant’s dismissal until his stop bullying application is determined 
– applicant now given show cause letter for failing to comply with direction to attend an 
Independent Medical Examination (‘IME’) – whether direction lawful and reasonable – 
applicant’s continued refusal to attend IME – application to vary earlier decision refused – 
undertaking not restored – application to anonymise applicant and wife’s names refused – 
confidentiality orders relating to medical records refused – limited confidentiality orders 
relating to financial circumstances – recusal application refused – principles for interim orders 
not established – no reasonable prospects of success – balance of convenience does not favour 
interim orders being granted – application for interim orders refused, save for order at [63].

BACKGROUND

[1] In a decision of the Full Bench of the Fair Work Commission (the ‘Commission’) on 10 

December 2019, Krcho v Hiss & University of New South Wales and Others [2019] FWCFB 

8269, which refused permission to appeal and dismissed an appeal filed by Daniel Krcho (the 

‘applicant’), against my decision of 31 July 2019 in Daniel Krcho [2019] FWC 5278 (the ‘31 

July 2019 Decision’), the Full Bench said in a postscript: 

‘[64] Since finalising the draft of this decision but before its publication, Dr Krcho 
applied (by correspondence dated 23 November 2019 but received on 25 November 
2019) to the Full Bench seeking an order to prevent his dismissal arising from 
correspondence sent to him by the University dated 19 November 2019. The letter 
concerns events which post-date the Deputy President’s decision the subject of this 
appeal.

[2020] FWC 181 [Note: An appeal pursuant to s.604 (C2020/500) was 
lodged against this decision - refer to Full Bench decision dated 
18 August 2021 [[2021] FWCFB 5113]  for the result of the appeal.]

DECISION


AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb5113.htm


[2020] FWC 181

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[65] The Presiding Member conducted a mention on 9 December 2019 at which 
Dr Krcho was advised that the Full Bench would not deal with the application as it does 
not raise any matter relevant to establishing whether the Deputy President erred in the 
Decision. Dr Krcho’s application will be allocated to the Deputy President for hearing 
and determination. The University has undertaken not to take any further step in relation 
to the matter canvassed in its correspondence of 19 November 2019 until the hearing 
and determination of Dr Krcho’s application mentioned at [64].”

[2] Upon remittal to me, the foreshadowed application from the applicant, for urgent interim 

orders, was programmed for expedited hearing on 20 December 2019. The parties agreed that 

I determine the urgent application ‘on the papers’; namely, on the submissions of the parties. 

Directions were issued and later amended twice at the applicant’s request, to allow him further 

time to respond to the submissions of the University of New South Wales (‘the University’ or 

‘UNSW’) and the other named respondents. Despite the objection of the University to the 

extended timetable proposed by the applicant, I allowed the applicant’s reply submissions to be 

filed on 9 January 2020.

[3] The applicant’s application in his original submission of 16 December 2019 reads: 

‘1.) Pursuant to the recommendation of the FWC FB (10/12/2019) [at 58] the applicant 
hereby applies for (quoting): “variation of [His Honour’s published] the Decision [dated 
31/07/19] (and the Reasons for Decision)” as per the applicants request itemized in this 
application, 

(a) in this context, please kindly re-establish your earlier removed respondent’s 
undertaking to the FWC (originally issued by DP Hampton) until the entire 
Stop Bullying Application at the FWC has been finalized, 

2.) in case this application for variation in full, or any part of it is denied, then pursuant 
the apprehended bias principle we respectfully ask that His Honour DP Sams proceeds 
to disqualify himself from any further dealing with this matter, 

High Importance 

Confidential & Personal Information 

1.) 16/09/2019 – IME Report Dr. Leonard Chin
2.) 04/03/2019 – IME Report Dr. Bertucen – Extract 
3.) 24/09/19 – POWED Triage Admission Referral- Re-traumatization 
03C.) 11/01/2011 – IME Report Dr. Roberts – Extract
03K.) 08/08/2019 – IME Report Dr. Brierley 
4.) 23/11/2019 – Applicant’s Response to Prof Hoffman’s Show Cause Letter dated 

19/11/2019”’








[2020] FWC 181

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[4] In short form, it is apparent that the applicant seeks at least four orders under the 

following headings: 

(1) The deletion and/or variation of a significant number of paragraphs in the 31 July 

2019 decision, which the applicant agrees with, or claims are errors of fact and law. 

(The Variation application);

(2) The reinstatement of the undertaking given by the University in earlier proceedings 

between Hampton C, in 2018, which I had released the University from in the 31 

July decision. (The Undertaking application);

(3) That I disqualify myself from further dealing with the applicant’s matter if I refuse 

to grant (1) and (2) above, ‘in full or part of it (the ‘Recusal application’); and 

(4) That I retrospectively order the anonymisation of the identity of the applicant and 

his wife and suppress the publication and distribution of their personal health and 

financial information, including removing all such references from my 31 July 2019 

decision. (The Confidentiality application).

SUBMISSIONS

For the applicant 

[5] I do not intend to rehearse all the submissions of the applicant, as for the most part they 

are onerously repetitive and/or deal with the applicant’s substantive stop bullying application. 

Nevertheless, I have carefully perused the applicant’s submissions and have taken them into 

account. However, in order to give the reader an appreciation of what the Commission is being 

asked to determine in this interlocutory application, I will reproduce what I apprehend to be a 

summary of the applicant’s case, by quoting directly from his submissions. 

‘1. On recommendation of the FWC FB Please kindly make the following variations to 
your published interim decision in full, as per request below: 

a) Please kindly retrospectively anonymise the identity of the applicant and his 
wife in your published interim decision, on the grounds that your Interim 
Decision contains serious factual errors resulting in unnecessary, 
unreasonable and irreparable damage to the applicant’s reputation, career and 
any future employment elsewhere, and also

b) Issue suppression order for publishing and further distribution of your original 
Decision dated 31/07/19, and also








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c) Remove all applicant’s and his wife’s personal, including sensitive personal 
information (such as health and financial information, including leave 
entitlements details), from your published decision, 

i) On the grounds that the Sensitive Personal Information regarding the 
applicant’s health provided to the FWC by the employer is false (as the 
applicant has always maintained) – and as is now clear from the 9 
consistent IMEs Reports available to date (4 of which were available 
for his Honour’s consideration at the relevant time, but were neglected 
from mention), and also

ii) On the grounds that unprotected public disclosure of the applicant’s 
financial information or of his socio-economic status is a serious breach 
of his Privacy, and 

d) Please also kindly remove (reformulate) your paragraph [6-7] and paragraphs 
[25-26] on the grounds that they are incorrect and prejudiced (as explained in 
detail further below), but also because the applicant already previously 
explained (also in his Application 22/07/19), post is not his preferred method 
of communication. His preferred method of correspondence is the secure 
employment email, which has been inappropriately blocked by the respondent 
in breach of its own ITC Policy, dictating use of official employment accounts 
for all employment related matters, which the Stop-Bullying Application 
represents, and …

e) Please also kindly remove (rephrase) your paragraphs [30-33] on the same 
grounds (as per facts and explanation further below), as it is not correct that 
the respondent’s coercive IME direction dated 27/06/19 (made under duress, 
and without consent), or any later IME Directions were reasonable and 
lawful. 

His Honour ought to have correctly found that the employer’s IME Direction 
(27/06/19) to collect/obtain additional, unnecessary (at that time), excessive, 
intrusive, IME Report from a GP (which was made under duress), was not 
likely to have been made for an appropriate purpose, was in fact in breach of 
the PPIPA, in breach of the applicant’s privacy rights, and was hence 
excessive, unnecessary, (at that time), made outside due process, and was 
hence unreasonable and unlawful Direction. 

Please kindly rephrase your paragraphs [30]-[33] to reflect the correct facts 
and circumstances (at that time) leading to correct conclusion that the 
employer’s directions dated 27/06/19, as well as its later IME Directions, 
were unreasonable and unlawful. 

In respect, please also kindly duly acknowledge the existence of the 6 IMEs 
(which have been available to the FWC at that time), and duly consider their 
content, which have medical information unnecessary and unreasonable;

f) Please also kindly re-establish your earlier removed respondent’s undertaking 
to the FWC grounds that: 








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1.) Your removal of the undertaking was unfair and unjust because it was 
based on the respondent’s skilful deception convincing the Commission 
[at 25] that the delay in proceedings was caused by the applicant, while 
in fact the delay has been caused by the respondent’s abuse of power 
and psychiatry by commissioning retaliatory malicious misdiagnosis 
from Dr. Deepinder Miller (dated 20/11/2018 and 27/11/2018) which 
labelled the applicant mentally ill (hence unable to continue in his FWC 
matter).

2.) This means that the respondent has abused your removal of the 
undertaking by

i) Its excessive issuance of 7 additional, unnecessary, excessive, 
invasive, re-traumatizing (i.e. unreasonable & unlawful) IMEs for 
inappropriate purpose without genuine need for them, and outside 
proper due process

ii) By breaching its PPIPA obligations to the applicant crucial for 
validity of the IME process, and the resulting IME Report, 

iii) Resulting in the 3rd Show Cause Letter dated 19/11/19. 
iv) It needs to be noted that the unnecessary and excessive Directions 

were issued for inappropriate purpose of justification of 
applicant’s termination of his employment before the substantive 
matter can be heard. 

(5) We respectfully ask His Honour Deputy President Sams to disqualify himself from 
any further dealing with this matter because he has previously (31/07/2019) unfairly 
prejudiced the matter on the following topics/issues:

a) Application (22/07/2019, 31/07/2019, & 19/08/19) for anonymisation of 
applicant and his wife in the Decision;

c) (sic) Application (22/07/2019, 31/07/2019) for urgent stay of the 
Proceedings until the respondent restores the applicant’s access to this 
employment documents, records and evidence necessary for running of 
his case, including his email account;

d) Application (22/07/2019, 31/07/2019) for urgent stay of the Proceedings 
until the applicant is cleared by specialist psychiatrist as mentally fit (and 
mentally credible) to run his case; 

e) Unfair aware (on 19/11/2018, on 31/07/2019) of external legal 
representation to the respondent without proper form application, despite 
applicant’s objections (19/11/18, 22/07/2019) not allowing him to be 
properly heard on that issue; 

f) Application for (22/07/2019, 31/07/2019) Interim order to prevent 
employment termination, or reinstatement of the respondent’s undertaking 
to the FWC

g) Refusal to deal (31/07/2019) with the respondent’s breach of the 
applicant’s Privacy deliberately caused by the respondent’s coercive and 
unlawful Direction (made under duress) dated 27/06/2019 – amounting to 
continuous bullying even during the FWC process’. (original emphases 
omitted)

For the University








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[6] Solicitors for the respondent set out the principles the Commission is to apply in 

determining an application for interim orders. The University’s response to the applicant’s 

application is summarised at paras 6-20 of its submissions as follows: 

‘6. The University opposes the making of any interim orders to prevent it from taking any 
further steps in relation to the Allegations Letter and the Applicant’s response to that 
letter.

7. There is not a serious question to be tried to justify the making of an interim order.

8. In all the circumstances, as outlined below, the Allegations Letter issued by the 
University does not amount to bullying. It is culmination of more than a year of attempts 
by the University to assist the Applicant to safely and durably return to work; but the 
Applicant has resisted every endeavour of the University. The University’s directions 
were lawful and reasonable: see Blackadder v Ramsey Butchering Services Pty Ltd 
[2002] FCA 603 at [67] to [69]; Australian and International Pilots Association v 
Qantas Airways Ltd [2014] FCA 32 at [61] to [64], and disobedience of an employer’s 
direction can provide a basis for consideration of dismissal: Adami v Maison de Luxe 
Ltd (1924) 35 CLR 143 at 151 and R v Darling Island Stevedoring and Lighterage Co 
Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601.

9. Care needs to be taken that this anti-bullying jurisdiction is also not used to prevent 
legitimate management action: Applications by Hien, Le; Sankey, Joseph; Soy, Bora 
[2019] FWC 4274 at [15].

10. Further, the balance of convenience does not warrant an interim order. The Applicant 
has been too unwell to pursue his substantive bullying application (continuing) but 
wishes to return to work. The University has been endeavouring to assist in that regard, 
but the Applicant has resisted every endeavour of the University. Even if the University 
was satisfied the Applicant was fit to return to work, the Applicant refuses to engage 
with Career Capital to assist with a successful return to work. The Applicant’s refusal 
is contrary to his obligations under s 28 of the Work Health and Safety Act 2011 (NSW), 
in particular ss 28 (c) and (d). The University’s right to manage its employees (and their 
disobedience and lack of co-operation) must weigh against the balance of convenience 
in favour of the Applicant. The Applicant responded to the Allegations Letter and it is 
appropriate the University deals with the response. If a decision is ultimately made to 
terminate employment, the Applicant would have other substantive rights to challenge 
his dismissal: Daniel Krcho [2019] FWC 5278 at [29].

11. In respect of anonymity and suppression, the University says:

(a) The FW Act has a presumption that any hearing will be held in public: see 
section 594; also see Justin Corfield [2014] FWC 4887 at [20], followed in 
Bowker & Ors v DP World Melbourne Limited [2014] FWC 7381 at [6] and 
Application by Mac [2015] FWC 774, VP Hatcher said at [6] to [7]. This is 
reflective of the ‘open justice’ principle.








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(b) Critically, there is no evidence upon which the Commission could reasonably 
reach the conclusion that it is necessary to make an order as to anonymity in the 
interests of the administration of justice.
(c) Further, given the decision in Daniel Krcho [2019] FWC 5278 has been 
published for over three months, and not overturned on appeal (see Dr Daniel 
Krcho v. University of New South Wales & Ors [2019] FWCFB 8269), an order 
as to suppression is not appropriate.

12. It is not proper for the Applicant to also seek editing and or altering / redrafting of 
the decision in Daniel Krcho [2019] FWC 5278. The decision was upheld on appeal: Dr 
Daniel Krcho v University of New South Wales & Ors [2019] FWCFB 8269. The 
criticisms made by the Applicant in ASoD were not accepted by the Full Bench.

13. In ASoD the Applicant requests this Commission “also kindly re-establish your 
earlier removed respondent’s undertaking”. The University:

(a) opposes any such request; and
(b) other than the limited undertaking given to DP Gostencnik3, give no further 
undertakings.

14. For the reasons set out below, the recusal application is without basis.

15. The University seeks the Application be dismissed.

Recusal application

16. The Applicant asserts that DP Sams is biased. The University disagrees.

17. The test is whether in all the circumstances a fair-minded lay observer may entertain 
a reasonable apprehension that the judge might not bring an impartial and unprejudiced 
mind to the resolution of the issue before him or her: Johnson v Johnson (2000) 201 
CLR 488 at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Michael 
Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 437 [31] per Gummow 
ACJ, Hayne, Crennan and Bell JJ. Disqualification is only appropriate when a 
reasonable apprehension of bias is “firmly established”: Re JRL; ex parte CJL (1986) 
161 CLR 342 at 352 per Mason J. As is identified below, no plausible basis for bias is 
identified.

18. The Applicant complained about bias to the Full Bench of the Fair Work 
Commission in an appeal from the decision in Daniel Krcho [2019] FWC 5278. A lot 
of the same complaints are made in ASoD. The relevant complaints and the University’s 
responses in the Full Bench proceedings were as follows (and are adopted here):

52. A basis for the bias complaint is that DP Sams was apparently “clearly 
commandeering” at the hearing (AB, p.8). The Appellant at AB, p.8 extracts PN 
51 from the Transcript in support of that proposition. Notably, the extract in the 
Appeal, includes an exclamation mark (!) at the end of DP Sams statement that 
is not in the Transcript (AB, p. 306).
53. The Appellant then relies on an assertion that DP Sams “protected the 
respondent” from answering the Appellant’s question (AB, pp. 8-9). Such a basis 
misunderstands the nature of the hearing before DP Sams which was to hear 








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submissions from each party; not cross-examination. In any event, the University 
answered the question asked by the Appellant (see PN 285 and 510 to 522 at 
AB, pp. 328 and 350) and the fact the Appellant did not find the University’s 
answer satisfactory does not mean DP Sams is biased in the relevant legal sense.
54. The Appellant then relies on the fact the Respondents were allowed to tender 
and rely on a bundle of documents (AB, p. 9). As a matter of procedural fairness, 
the Respondents were entitled to respond to the Interim Application after being 
served with it on 24 July 2019. The bundle (AB, p.386) was discrete; it contained 
material that was seen by, and known to, the Appellant previously (other than 
case extracts). As said above, the relevance of the material was explained by the 
Respondents at the hearing (see Transcript, PN 214 and PN 227 to 317 at AB, 
pp. 320 to 332). Also, as said above, the Appellant was given an adjournment in 
the hearing (PN 324), of 35 minutes (AB, p.333), to prepare a response, and was 
content with the course (PN 328 to 332). No bias is demonstrated, including on 
the grounds of the conduct of the hearing of the Interim Application.
55. The Appellant complains about the giving of an ex tempore decision as 
demonstrating bias (AB, p.9). For the reasons set out below at paragraphs [58] 
to [60] of these submissions, this basis for alleging bias is without merit. As is 
plain from the Transcript, DP Sams considered the Interim Application and 
heard all submissions before giving his decision.
56. The Appellant also complains about exchanges between him (and his wife) 
with DP Sams. There is no bias in a member of the Commission having 
exchanges with a party to understand the case and to focus the submissions on 
issues immediately relevant to the proceedings.
57. Further, the making of general observations, like that at paragraph [7] of the 
Decision, do not itself establish bias or prejudgment. So much is apparent when 
regard is had to the actual decision that properly sets out the relevant factual 
context, the relevant legal principles and applies those principles to the facts in 
an orthodox manner.

19. The Full Bench dismissed the Applicant’s appeal: Dr Daniel Krcho v. University of 
New South Wales & Ors [2019] FWCFB 8269. (See Tab 44 of “Respondents’ 
Documents”). At paragraph [59], all appeal grounds were found to be unlikely to be 
upheld.

20. To the extent the Applicant supports the claim of apprehended bias by cavilling with 
the findings of DP Sams in the Daniel Krcho [2019] FWC 5278, this argument is 
misplaced. The appeal from DP Sams’ decision was dismissed. The Full Bench made 
no findings of significant errors of fact or otherwise.’

Submissions in reply 

[7] The applicant’s reply submissions are headed: 

‘Subject:

(1) Response in reply relevant to and extending the applicant’s earlier Application 
(dated 16/12/2019) for: 








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a) Either Full Variation of His Honour’s Interim Decision 31/07/19 or 
b) His Honour’s DP Sam’s Disqualification. 

(2) Application to The Director, Client Services, Fair Work Commission, for 
immediate removal of His Honour DP Sams from any further management of the 
applicant’s case if Full Variation is unachievable, 

(3) Application to Honourable Charles Christian Porter MP – Attorney-General for 
Australia for immediate investigation into FWC’s processes.

The only matters from the above which I am able to deal with concern 1(a) and (b). 

[8] A summary of the applicant’s claims is to be found at 96-105 which reads: 

‘96. The respondent’s unreasonable obstruction of applicant’s access to his 
employment email account and records amounts to an attempt to prevent due course of 
justice and obstruct justice.

97. Consequently, under such unfair and disadvantageous circumstances it should not 
be the applicant’s duty to provide to the FWC these employment documents and relevant 
evidence because the respondent is unreasonably preventing the applicant’s access to 
them.

98. Considering that it appears that the FWC does not intend to interfere with the 
employer’s decision regarding its ban of the applicant’s access to his email account and 
employment records (as per His Honour’s DP Gostencnik's Mention (09/12/2019 at 
09:00 at PN45)),

a) in contradiction to its duty under s.577 of the FWA to ensure that the FWC 
process is fair, just, informal, avoiding unnecessary technicalities, is open, and 
transparent, and that the applicant receives his opportunity to be fully heard and 
listened to, to avoid bias in the relevant legal sense,
b) the FWC’s should then run the case through an alternative, active and 
inquisitorial method, as an broadened assistance lent to the disadvantaged, under 
resourced and unrepresented litigant.

99. On the basis of the 11 IME Records declaring the applicant fit for work and NOT 
Delusional, the respondent needs to be reminded of its responsibilities, as well as of its 
Model Litigant Obligation to the FWC, and ordered to fully remove the access ban, so 
that the applicant can access his office to collect the remainder of his necessary 
evidence, and to access his employment email records and relevant evidence, and 
progress the FWC matter.

100. Since the respondent banned the applicant from work on the basis of its purchased 
misdiagnosis, which misdiagnosis has in the meantime been repudiated by a number of 
medical doctors and specialists, who all declared the applicant as mentally healthy and 
fit to return to his work, with Dr. Brierley and Dr. Bertuchen even stating that return to 
work is most beneficial for the applicant’s health, the respondent’s justification for its 
ban of the applicant from work no longer exists. For this reason, the Respondent should 
be ordered to immediately allow the Applicant’s unobstructed return back to his work.








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101. In order to follow due process, the Respondent needs to be ordered to postpone any 
disciplinary/punitive actions against the Applicant until after the FWC matter has been 
finalised.

102. In order to follow due process, the Respondent needs to be ordered to postpone the 
Career Capital (or alike) processes and/or to redirect them onto the relevant entities 
responsible for the bullying of the Applicant, i.e. the UNSW HR/ER.

103. Based on the medical records dating back to 21/11/2018 (already with the 
Respondent), UNSW needs to be ordered to:

a) return back to the Applicant all his misspent leave entitlements, and to
b) apologise to the Applicant for the prolonged psychological torment caused by 
the purchased misdiagnosis, followed by his quarantine and the 7 months of 
victimization by isolation.

104. The Respondent needs to be ordered to refrain from abusing its power by exerting 
undue pressure (exercised through its abuse of process) onto medical practitioners and 
the applicant in relation to his ability to continue in his FWC application, because that 
amounts to bullying and a Contempt of Court.

105. Respondent’s refusal to act honestly and candidly before the Commission, as a 
consequence of its prohibitions dated 04/01/2019 (in AB, p.719-720) and 14/02/2019 
(in AB, p.721, dot point 9, & in HT26/07/19 PN207), but also as a consequence of its 
provision of false and misleading document to FWC (as to the applicant’s misdiagnosis), 
has resulted in public defamation of the applicant and consequently in an irreparable 
damage caused to his earning capacity, and as such amounts to undue interference with 
the justice process, preventing the due course of justice, resulting in obstruction of 
justice, and its miscarriage (in the Interim Hearing 26/07/2019, and its resulting 
published Interim Decision 31/07/2019), for which caused unfairness, injustice and 
harm the applicant now seeks remedy – through proper Variation of the decision.’

[9] In total, the reply submissions are 49 pages with 151 pages of attachments previously 

provided to the Commission. The applicant entirely misses the point of reply submissions. Just 

as reply submissions are not to be used as an opportunity to agitate new matters, it is not an 

opportunity to repeat the same material which was contained in a party’s submissions in chief. 

[10] While I accept the applicant expressly responded to the University’s submissions of 

2019, it was done primarily by repeating, ad nauseum, all of the same complaints, allegations 

and criticisms that the applicant has claimed on numerous earlier occasions, containing the 

usual flourish of extravagant language and inappropriate and improper accusations. However, 

there now appears to be a ‘ramping up’ of the attacks on Mr J Mattson, the respondent’s 

solicitor, as the following extracts reveal: 








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‘10.) Mr. Mattson’s claims in his par. 12 are misleading. Considering that he is a lawyer 
such vexation and lies attempting to mislead the injured and unrepresented party are 
grossly inappropriate. On these grounds also we ask that the External Legal Counsel is 
instantly prohibited from representing the respondent. It is not correct that the Interim 
Decision was upheld on Appeal, because the leave to Appeal was denied due to being 
out of time, hence there was no Appeal, hence Mr Mattson’s second claim, that the 
applicant’s criticisms made in his Appeal Application were not accepted by the Full 
Bench, is also incorrect.”

…

14.) To address Mr. Mattson’s par. 19.
Mr. Mattson appears to be ignoring the fact that the grounds for a leave to Appeal are 
different from the grounds in this application.
This he does intentionally in order to mislead. This is a sign of extreme dishonesty, lack 
of respect for the law, for the legal process, legal profession, and demonstrates a lack of 
candour to the FWC, and certainly an absolute lack of respect for his disadvantaged 
opponent, i.e. the legally untrained, unexperienced, unrepresented and injured victim of 
the respondent’s prolonged bullying.”

[11] I have considered all the applicant’s submissions and reviewed his list of cited cases, 

although most of these cases are not directly relevant to the facts and circumstances of this 

matter, and/or were decided in other jurisdictions (including the United Kingdom), under very 

different legislative regimes. Nevertheless, I have endeavoured to cover the primary arguments 

of the applicant which are now set out. 

CONSIDERATION

[12] It may reasonably be accepted that all of the orders sought by the applicant in his latest 

application are in the nature of ‘interim’ or ‘interlocutory’ orders. The principles to be applied 

by the Commission to applications of this type, are well known. However, I note the applicant’s 

submissions rarely seek to engage with these principles or entirely misunderstand them. I repeat 

what I said in the 31 July 2019 decision at [17] – [19]:

‘[17] Section 589 of the Act provides as follows:

‘589 Procedural and interim decisions

 (1) The FWC may make decisions as to how, when and where a matter is to be dealt 
with.

 (2) The FWC may make an interim decision in relation to a matter before it.








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 (3) The FWC may make a decision under this section:

 (a) on its own initiative; or

 (b) on application.

 (4) This section does not limit the FWC’s power to make decisions.’

[18] As s 589(2) does not limit the Commission’s powers to make an interim decision 
to particular species of applications or exclude others, it may be safely assumed that the 
making of interim orders in a stop bullying application is a power available to the 
Commission. Put another way, there is no express or inferred statutory provision which 
would exclude the Commission from exercising such a power in s 789FC applications; 
see: Worker A, Worker B, Worker C, Worker D and Worker E v Automotive, Food, 
Metals, Engineering, Printing and Kindred Industries Union known as the Australian 
Manufacturing Workers’ Union; Communications, Electrical, Electronic, Energy, 
Information, Postal, Plumbing and Allied Services Union of Australia and others listed 
in Schedule A [2016] FWC 5848 and Application by Bayly (‘Bayly’) [2017] FWC 1886. 

[19] The Commission is frequently called upon, in all of its areas of jurisdiction under 
the Act, to make interim decisions and/or orders. The principles to be applied in such 
circumstances are well established and are often referred to as the tests of whether prima 
facie firstly, there is a serious question to be tried, and secondly, whether the balance of 
convenience favours the order for interim relief. In Quinn v Overland [2010] FCA 799, 
Bromberg J set out at [45] and [46] the two main considerations as follows:

‘[45] In determining an application for interlocutory relief, the Court addresses 
two main inquiries. First, whether the applicant has made out a prima facie case 
in the sense that if the evidence remains as it is, there is a probability that at the 
trial of the action the applicant will be held entitled to relief. Second, whether 
the inconvenience or injury which the applicant would be likely to suffer if an 
injunction were refused outweighs or is outweighed by the injury which the 
respondent would suffer if an injunction were granted: Australian Broadcasting 
Corp v O’Neill (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant 
must show that it is more probable than not that the applicant will succeed at 
trial. It is sufficient that the applicant show a sufficient likelihood of success to 
justify in the circumstances the preservation of the status quo pending the trial. 
How strong the probability needs to be depends upon the nature of the rights the 
applicant asserts and the practical consequences likely to flow from the order the 
applicant seeks. In that context there is no objection to the use of the phrase 
“serious question” to convey the strength of the probability: Australian 
Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson 
CJ and Crennan J agreeing at [19].’

[13] For the reasons that follow, I am not satisfied that the applicant has established an 

arguable case that he has a serious issue to be tried which would be lost if the interim orders are 








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not granted. This would be sufficient to dismiss the application for interim orders. However, 

for completeness, I also consider that the balance of convenience does not fall in the applicant’s 

favour. These are my reasons. 

General Observations 

[14] It is commonly understood that once a recusal application is made against a judge or 

judicial officer, all associated proceedings in which the recusal applicant is involved, are 

immediately put on hold, or stayed, pending the determination of the recusal application. It does 

not make sense for other associated proceedings to continue with such a ‘cloud’ over their 

conduct of the member being alleged. 

[15] However, in an unprecedented move, the applicant’s recusal application in this case, is 

conditional, in the sense that he will not press for my recusal, on the condition that I grant ‘in 

full’ the entirety of the variations he seeks to the 31 July 2019 decision, including my release 

of the Undertaking of the University not to take steps to terminate his employment until his 

substantive stop bullying application is determined. I will say more about this condition later. 

[16] The applicant said that the variations he seeks were ‘[o]n recommendation of the FWC 

FB’. They are nothing of the sort. There were no recommendations of the Full Bench; let alone 

that it had impliedly ‘recommended’ anything which is now sought by the applicant in his 

interim orders application. The applicant’s submissions are replete with repeated and ‘loaded’ 

words and phrases, carelessly thrown around as allegations and which, for the most part, are 

without evidentiary foundation (let alone having never been properly explained or tested). At 

this point, they reflect little more than the applicant’s subjective unsubstantiated beliefs. They 

include, but are not limited to:

Allegations against the University:

 Vexatious manipulation of the process;

 Covert, spying and stalking;

 Fraud;

 Obstruction of justice;








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 Malicious retaliation;

 Defamation and deception;

 Intimidation, duress, coercion and smear;

 Mala fide fraud;

 Abuse of psychiatry and OH& S Policies for improper purpose;

 Fabricating fake reasons;

 Counterproductive retaliating nonsense (sic);

 Top down mob based ‘conspiracy to terminate employment’; and

 Frivolous and vexatious psychological games.

[17] This is not to forget the outrageous, and probably libellous claim, that Dr Miller’s report 

was a ‘purchased, fraudulent, invalid misdiagnosis’. It is apposite to refer to the judgement of 

the Federal Court in Chan v Harris (No.2) [2010] FCA 1393 where the Court held at paras 66 

and 67:

‘66. The Court accepts the submissions of Corrs that in the absence of any evidence 
such allegations should never have been made. The allegations suggest serious 
misconduct by three legal practitioners. In Bahonko v Nurses Board of Victoria [2008] 
FCAFC 29 Gyles, Stone and Buchanan JJ stated at [10]:

‘The processes of the Court and the Court itself are brought into disrespect if 
unreasonable relaxation of ordinary standards is extended to litigants in person 
simply for the reason that they are without legal assistance. There is no basis to 
think that the rights of any litigant in person are infringed or diminished by the 
steady insistence that proceedings in this Court are not be used as a means of 
sullying the reputation of other parties to the proceedings or third parties who 
are not directly involved in the proceedings at all.’

67. To the same effect Mansfield J in Kowalski v Chief Executive Officer of 
Medicare Australia [2010] FCA 413; (2010) 185 FCR 42 said at [34]:

‘First, as has been remarked in other judgments in which Mr Kowalski has been 
a party, he is prone to make scandalous offensive and unsubstantiated allegations 
about public figures, about judges or administrative decision makers, and about 
the solicitors and counsel appearing in those matters. Even allowing for him 
being a litigant in person, those allegations are entirely inappropriate. He seems 
to be unable to accept that others might in good faith take a different view about 
certain things. Whether or not a different view is erroneous, there is no basis for 
asserting that the person taking that view is attempting to pervert the course of 








[2020] FWC 181

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justice, or is lying, or is acting unprofessionally. Those sorts of assertions, or like 
offensive epithets, should not be tolerated.’’

[18] I will come back later to the colourful epithets, used to describe my alleged conduct in 

support of the applicant’s recusal application. At this juncture, I am reminded what Pembroke J 

said in Zepinic v Chateau Constructions (Aust) Limited [2017] NSWSC 582 where His Honour 

said at para 47: 

‘47. Mr Zepinic’s conduct is an extreme example, but given his constant resort to 
exaggerated description and unjustified language, it is useful to recall the advice of 
Atticus Finch to his daughter Scout. She said: ‘Atticus told me to delete the adjectives 
and I’d have the facts’: To Kill a Mockingbird, Harper Lee, ch 7. And it is worth 
repeating my own words in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] 
NSWSC 717 at [32]:

‘... The promiscuous use of extravagant language tends to obscure the value that 
may exist in the underlying submission. It is timely to repeat the compelling 
wisdom of the words attributed to Lord Bingham of Cornhill by Lord Mackay 
of Clashfern in his address at the Thanksgiving Service for Lord Bingham; The 
Times, 26 May 2011:

The effective advocate is not usually he or she who stigmatises conduct as 
disgraceful, outrageous, or monstrous, but the advocate who describes it 
as surprising, regrettable or disappointing.

48. What is clear is that Mr Zepinic, in his own right and on behalf of his wife and 
daughter, has become a ‘vexatious’ litigant in every sense of the word. Not only has he 
pursued one hopeless claim after another, but he has criticised or condemned his own 
solicitors and sought to disqualify judges who have made orders against him. His 
obsessive behaviour is wasteful and destructive. And it has been exacerbated by his 
dishonesty, which takes it to a new level of seriousness. It must be stopped. It is contrary 
to the public interest.”

[19] The applicant continues to strenuously object to the University being represented by a 

lawyer. It is open for the applicant at any time in a conference/hearing to object to the 

Commission continuing to allow permission for the University to be represented by a lawyer, 

pursuant to s 596 of the Act. However, in the present circumstances this is irrelevant, as the 

application for interim orders is to be decided, by consent, ‘on the papers’. I refer to what the 

Full Bench said in the appeal at [6]: 

‘[6] The Respondents sought permission to be represented by a lawyer. Dr Krcho 
opposed permission being granted, however, as the appeal was to be determined on the 
papers, permission to be legally represented is not required. Pursuant to Rule 12(1)(b) 
of the FWC Rules, if a person is not participating in a conference or hearing, that person 








[2020] FWC 181

16

may be represented by a lawyer or paid agent in the matter without the permission of the 
Commission.’

[20] In addition, I note that:

(a) there was no objection to Mr Mattson’s appearance in the proceedings on 26 July 

2019; and

(b) it does not appear that any grounds of appeal of the decision of 31 July 2019 (the 

‘Decision’) related to permission for the University to be represented by a lawyer. 

There is certainly no reference to such a ground of appeal in the Full Bench 

decision. 

Further, it does not appear the applicant has established any connection between the principles 

for the making of interim orders and the legal representation of the University. 

[21] The applicant continues to assert his severe disadvantage and unfairness, given he and 

his wife’s lack of legal training in the face of the University being legally represented. It is 

difficult to reconcile this complaint with the applicant’s claims of breaches by the University 

and others of Federal and State laws, arguments going directly to legal questions and his citing 

of numerous authorities in support of his submissions. I turn now to the Variation application. 

Variation application 

[22] The essence of what the applicant seeks by these orders is to challenge my conclusions 

and findings in respect of the 31 July 2019 decision, which he appealed and for which the Full 

Bench refused permission to appeal and dismissed his appeal on 10 December 2019. The 

applicant seeks to delete numerous paragraphs in the Decision or the rephrasing of paragraphs, 

with which he does not agree. 

[23] Most of the applicant’s 41 pages of closely typed and highlighted submissions and 70 

pages of annexures, and 49 pages and 151 pages of annexures in reply, have been previously 

agitated before me in earlier proceedings, including persistent allegations of ‘mob bullying’ and 

unlawful conduct by the University which have never been tested, let alone determined by the 

Commission. In reading the applicant’s submissions to the Full Bench, he repeated most of the 








[2020] FWC 181

17

same extravagant arguments he put before me. Indeed, the applicant’s appeal grounds were 

distilled by the Full Bench into five key themes: 

‘[25] The notice of appeal contains 73 paragraphs in which Dr Krcho advanced his 
grounds of appeal. 31 In addition, Dr Krcho filed written submissions on 16 September 
2019 and 22 October 2019 pursuant to the directions made by the Presiding Member. 
The appeal grounds are set out in submission form but may conveniently be grouped 
into five key themes by which Dr Krcho contends the Deputy President erred by: 

(1) variously displaying bias towards the Respondents and by denying 
procedural fairness to Dr Krcho; 32
(2) making significant errors of fact through inter alia his failure to deal with 
“crucial events, facts and dates” said to show the University’s unreasonable and 
vexatious conduct which in the result produced a decision contrary to the 
overwhelming weight of the evidence; 33
(3) making significant errors of law through inter alia his failure to exercise 
power to compel the University to explain why it sought to compel Dr Krcho to 
produce medical material or attend an examination under threat of dismissal; 3
(4) inappropriately refusing (or otherwise adjourning) each of the orders 
sought by Dr Krcho; 35 and
(5) allowing the Respondents permission to be legally represented at the 
hearing.’

[24] The Full Bench found at [59]: 

‘[59] Having regard to the above matters, we do not consider that Dr Krcho has 
established an arguable case that the Deputy President erred in his consideration of the 
application in the manner contended. In our view, none of the appeal grounds are likely 
to be upheld; some of the grounds are futile for the reasons we have identified; and the 
balance of the orders sought by the application the subject of the Decision are moot for 
the reasons earlier described. Dr Krcho is not prevented from making a further 
application for interim relief should there be a change in his circumstances.’

[25] These themes are reflected in the same repetitive, argumentative, accusatory, and in 

some cases scandalous and offensive material that have been agitated in earlier proceedings. I 

do not intend to answer every point or submission of the applicant in the present matter, most 

of which are irrelevant for present purposes, as it is plainly obvious that unless I agree to make 

all of the variations and orders he seeks, it would not matter what I say or determine, he will 

not accept any Commission outcome which he does not agree with. 

[26] The applicant was previously reminded the decisions of the Commission are final, 

unless otherwise quashed or varied by a Full Bench of the Commission on appeal. The applicant 

availed himself of the opportunity to appeal the 31 July 2019 decision which was wholly 








[2020] FWC 181

18

unsuccessful. The appeal was dismissed with permission to appeal refused, pursuant to s 604 

of the Act. This means the 31 July 2019 decision is final and stands on the record. It is not open 

for the applicant to seek to delete paragraphs or have paragraphs altered or rephrased to his 

liking, simply because he does not agree with the Decision. This must be a fortiori when his 

appeal of the 31 July 2019 decision was left intact and unscathed by the Full Bench. In my 

view, what the applicant seeks is improper and a waste of the Commission’s resources, paid for 

by the taxpayer, and which might otherwise be utilised in determining properly prosecuted 

cases. 

[27] On one view, the present application may be seen as perilously close to constituting an 

abuse of process. There is a public interest consideration in the need for finality in litigation. 

As Gleeson J said in Minister for Immigration [2002] HCA 11 at [7] and [8]: 

‘7. In Chandler v Alberta Association of Architect Sopinka J, speaking for the 
majority in the Supreme Court of Canada, pointed out that, as a general rule, 
subject to a power to correct a slip or an error of expression, a tribunal cannot 
revisit its own decision because it has changed its mind, or recognises that it has 
made an error within jurisdiction, or because there has been a change of 
circumstances. However, the Court held that the principle of functus officio 
should not be strictly applied if the tribunal has failed to discharge its statutory 
function and "there are indications in the enabling statute that a decision can be 
reopened in order to enable the tribunal to discharge the function committed to 
it by enabling legislation.

8. The requirements of good administration, and the need for people affected 
directly or indirectly by decisions to know where they stand, mean that 
finality is a powerful consideration.  And the statutory scheme, including the 
conferring and limitation of rights of review on appeal, may evince an intention 
inconsistent with a capacity for self-correction.  Even so, as the facts of the 
present case show, circumstances can arise where a rigid approach to the 
principle of functus officio is inconsistent with good administration and fairness.  
The question is whether the statute pursuant to which the decision-maker was 
acting manifests an intention to permit or prohibit reconsideration in the 
circumstances that have arisen.  That requires examination of two questions.  
Has the tribunal discharged the functions committed to it by statute?  What does 
the statute provide, expressly or by implication, as to whether, and in what 
circumstances, a failure to discharge its functions means that the tribunal may 
revisit the exercise of its powers or, to use the language of Lord Reid, reconsider 
the whole matter afresh?’ (my emphasis)

This judgment was referred to in Panayiotou v University of Adelaide [2019] FWCFB 8487 

where the Full Bench said at [49]:








[2020] FWC 181

19

‘[49] As noted by a Full Bench in Snyder there are sound public policy reasons why 
the Commission should not readily accede to an application for permission to appeal in 
circumstances where there has been a previous appeal of the same decision. The public 
policy benefits associated with providing finality in litigation tells against such a course. 
As Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v 
Bhardwaj, albeit in a different context:

“The requirements of good administration, and the need for people affected 
directly or indirectly by decisions to know where they stand, mean that finality 
is a powerful consideration.”’ (endnotes omitted)

[28] The applicant’s claim to have the 31 July 2019 decision varied or rephrased, as 

proposed, is rejected and dismissed. 

The Undertaking application

[29] I readily acknowledge that unlike the two earlier unsuccessful application for interim 

orders, there is now a different factual circumstance which was not in existence previously and 

why, inter alia, those earlier applications were not granted. This new circumstance is the 

University’s letter to the applicant of the 19 November 2019, which emerged during the period 

the Full Bench had reserved its decision in the appeal. There is little doubt that, for the first 

time, the applicant has been required to ‘show cause’ why his employment should not be 

terminated for failing to comply with a reasonable and lawful direction of the employer to attend 

an Independent Medical Examination (‘IME’) to assess his fitness for work. So much is clear 

from the following extract from the letter. 

‘Allegations and Opportunity to Provide a Response

UNSW now alleges that you failed to attend the scheduled independent medical 
appointment and thereby you have failed to comply with lawful and reasonable 
directions of your employer. 

It appears from your communications to us that you never had any intention to comply 
with the direction. Despite endeavours to explain the basis and reason for the direction, 
you refused to comply. 

Further, it appears to UNSW that you have not, and are not willing to, co-operate with 
UNSW in its endeavours to work towards a return to work, including through a 
facilitation process with Career Capital. 

Consistent with Clause 35.1(b) of The University of New South Wales (Professional 
Staff) Enterprise Agreement 2018 [(‘Agreement’)], you are invited to submit a response 
to the allegations set out above. 








[2020] FWC 181

20

Any response, if provided, is to be submitted to me in writing by no later than 4.00pm 
on Friday 29 November 2019. 

It is your responsibility to ensure that this timeframe is met. 

No findings or decisions have been made at this stage in relation to the allegation. 
Once I have received your response, I will consider next steps, one which may be 
making a recommendation to the Vice President Human Resources to terminate your 
employment in accordance with Clause 35.2 of the Agreement. 

If that occurs, you will have a further period of five working days to provide a response 
to the Vice President of Human Resources in respect of that recommendation, prior to 
him making a final decision regarding your employment.’

[30] Accordingly, I accept that this letter now includes a prospect that the applicant may be 

dismissed, according to the University’s disciplinary policy and process and the Agreement, 

after he responds to what is commonly understood to be a Show Cause letter of the 19 

November 2019. 

[31] Unsurprisingly, the applicant maintains that the University’s direction to attend an IME 

is both unlawful and unreasonable. His consistent arguments are not new and were rehearsed 

and decided in the 31 July 2019 decision. I need only repeat my conclusion at [21]-[23] and 

[29]: 

‘[21] It cannot seriously be disputed that an employer is able to direct an employee to 
attend a medical examination to establish whether the employee is fit to continue, or 
resume their duties, and perform the inherent requirements of their role. In Blackadder, 
Madgwick J said at 68-69:

‘68. It is, in my opinion, essential for compliance with the above duties, that an 
employer be able, where necessary, to require an employee to furnish particulars 
and/or medical evidence affirming the employee’s continuing fitness to 
undertake duties. Likewise, an employer should, where there is a genuine 
indication of a need for it, also be able to require an employee, on reasonable 
terms, to attend a medical examination to confirm his or her fitness. This is likely 
to be particularly pertinent in dangerous work environments. Abattoirs entail 
obvious risks, among other things, of injuries from the repetitive use of knives 
at speed, and to the spinal column from the necessity to twist, bend and/or lift.

69. The question whether it is reasonable for an employer to request an employee 
to attend a medical examination will always be a question of fact as will the 
question of what are reasonable terms for the undertaking of the medical 
examination.  The matters will generally require a sensitive approach including, 
as far as possible, respect for privacy.  Nevertheless, I assume that there now 








[2020] FWC 181

21

should be implied by law into contracts of employment terms such as those set 
out in the first two sentences of the preceding paragraph, on the basis that such 
terms pass the test of “necessity” accepted by McHugh and Gummow JJ in Byrne 
v Australian Airlines Ltd (1995) 185 CLR 410 at 450.

This is particularly so where there is conflicting medical opinions or, as is the case in 
this instance, the applicant rather unusually claims he is fit to return to work; albeit, 
under specific conditions acceptable only to the applicant and not to the University, and 
where the University has a specialist psychiatrist’s (Dr Miller) opinion that the applicant 
is unfit for work, with no prospective date for a return. The applicant disputes this 
opinion and asserts - entirely inappropriately in my view - that the Doctor’s report is a 
‘malicious misdiagnosis’.

[22] It is also curious and difficult to reconcile that the applicant claims he is fit to 
work, yet he says he is unfit to conduct proceedings in his stop bullying application. 
This is why I have adjourned these proceedings generally until he can demonstrate he is 
fit to conduct his case.

[23] It is equally unarguable that an unreasonable refusal to attend a medical 
examination may be a valid reason for an employee’s dismissal under s 387 of the Act. 
It is patently clear that the applicant has refused to attend his own doctor for an updated 
assessment on his capacity to attend work, except on his own terms.

…

[29] In any event, even if the applicant’s substantive stop bullying application is 
dismissed, he will have other rights to challenge that decision in the Commission and/or 
the Courts. In the event he is successful in challenging his dismissal, it may result in 
orders of reinstatement. Moreover, even if the applicant is dismissed, it does not 
automatically follow that his stop bullying application must be dismissed, as there is no 
longer a risk of him being bullied at work, which is a jurisdictional prerequisite for any 
stop bullying application to succeed: s 789FF(1)(b)(ii). See also: Shaw v Australia and 
New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines [2014] FWC 3408 
and Alley Renee Hamilton [2019] FWC 1816. Although rare, stop bullying applications 
have been stayed in such circumstances; see: Bayly, G.C. [2014] FWC 6988 and 
Applications by Hien, Le; Sankey, Joseph; Soy, Bora [2019] FWC 4274 (although 
stayed by consent).’

[32] Further, I quote what I said in Applications by Hien, Le; Sankey, Joseph; Soy, Bora 

[2019] FWC 4274 at [15]-[16]:

‘[15] At this point, the question arises, however, if there is a serious issue to be tried, 
in circumstances where two bullying investigations have said there is not (albeit this is 
strongly disputed by the Union) and more importantly, for present purposes, whether the 
Commission should interfere in the employer’s prerogative to institute disciplinary 
proceedings which might result in dismissal, and for which the applicants will have 
recourse to other provisions of the Act to challenge the fairness of such dismissals. I 
have recently said that it is not acceptable to use the stop bullying jurisdiction of this 








[2020] FWC 181

22

Commission as a shield or ‘stalking horse’, to prevent, delay or deflect justifiable 
disciplinary outcomes, or to claim that the disciplinary outcomes themselves are 
repeated unreasonable behaviour, constituting bullying. It demeans and undermines the 
important work of the Act’s stop bullying provisions to prevent workplace bullying; see: 
Karki [2019] FWC 3147.

[16] I emphasise that even if the applicants are dismissed, there is no automatic rule 
that their stop bullying applications must be dismissed on the grounds of them having 
no prospects of success. So much is clear from the recent decision of Hampton C in Dr 
Ng [2019] FWC 3055.

See also: Ingall v Virgin Australia Airlines Pty Ltd T/A Virgin Australia [2019] FWC 4947 at 

[99] and Application by Jennings [2019] FWC 8609.’

[33] Lest there be any doubt, I cite the following passage from King v Catholic Education 

Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta; Catholic 

Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta v King 

[2014] FWCFB 2194. At [26], the Full Bench said: 

‘[26] It is well established that an employee has an obligation, implied by law, to 
comply with the lawful and reasonable directions of his or her employer. The 
circumstances in which an employer’s direction will be lawful were described by Dixon 
J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte 
Halliday and Sullivan in the following terms: 

“If a command relates to the subject matter of the employment and involves no 
illegality, the obligation of the servant to obey it depends at common law upon 
its being reasonable. In other words, the lawful commands of an employer which 
an employee must obey are those which fall within the scope of the contract of 
service and are reasonable.” (endnotes omitted)

Further, in Briggs v AWH Pty Ltd [2013] FWCFB 3316 at [8]: 

“[8] The determination of whether an employer’s direction was a reasonable one 
(there being, as earlier stated, no contest in this case that AWH’s direction was 
lawful) does not involve an abstract or unconfined assessment as to the justice 
or merit of the direction. It does not need to be demonstrated by the employer 
that the direction issued was the preferable or most appropriate course of action, 
or in accordance with “best practice”, or in the best interests of the parties. The 
proper approach to the task is that identified by Dixon J in The King v Darling 
Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and 
Sullivan 13 in the following terms:

"But what is reasonable is not to be determined, so to speak, in vacuo. The 
nature of the employment, the established usages affecting it, the 
common practices which exist and the general provisions of the 








[2020] FWC 181

23

instrument, in this case an award, governing the relationship, supply 
considerations by which the determination of what is reasonable must be 
controlled."’

[34] I do not accept the direction that the applicant attends an IME in circumstances where 

there are conflicting medical reports, including differences in diagnoses and what Return to 

Work (‘RTW’) conditions should apply, which the applicant himself relies on, is an 

unreasonable or unlawful direction. Further, in circumstances where the applicant has twice 

refused to attend arranged IMEs, without reasonable (or any) explanation/s, and his continued 

refusal to engage with Career Capital, (even though he was encouraged to do so by his preferred 

doctor) constitutes a reasonable and lawful basis for the University to have issued the ‘show 

cause’ letter, dated 19 November 2019. 

[35] In any event, the undertaking given to Commissioner Hampton in 2018 was not 

expressed, or intended to be a perpetual, unequivocal guarantee the University would take no 

disciplinary action against the applicant until his substantive application was determined. So 

much so is clear from para 2 of the Undertaking which reads:

‘2. If the circumstances, referred to in paragraph 5.2 of the Respondents’ 
submissions dated 25 October 2018, substantially change such that the Applicant’s 
employment is at threat, the University will:

a. give the Applicant notice of the change, and
b. take no action to implement the change until the resolution of any further 

application by the Applicant for an interim order, provided that the Applicant 
makes such a further application for an interim order within 7 days after the 
Applicant receives the notice referred to in (a).”

On any view, the qualifications set out in para 2 above, have been met. 

[36] Accordingly, I have no intention of interfering in that process, and in addition to the 

same reasons why I refuse to vary the 31 July 2019 decision, it follows I will not reinstate the 

Undertaking which released the University from at [25] of the Decision. 

Recusal application 

[37] Firstly, I note that since I have been allocated this matter on 2 November 2018, I have 

been involved in a number of phone conferences, directions hearings and formal proceedings. 








[2020] FWC 181

24

In all these earlier proceedings, the applicant and his spokesperson (his wife) have raised 

numerous complaints about the conduct of the proceedings, but have not sought my recusal in 

this matter. That said, I accept unreservedly, their right to do so – albeit, procedurally 

incorrectly in the applicant’s recent appeal. 

[38] It is necessary to set out the principles relevant to an application for recusal based open 

a reasonable apprehension of bias. These principles were recently helpfully set out in Bronze 

Hospitality Pty Ltd v Hansson [2019] FWCFB 3456 where the Full Bench said at [22]: 

‘[22] The principles relating to disqualification on the ground of apprehended bias are not 
seriously in contest. These principles are found in Ebner v Official Trustee in Bankruptcy 
14 and were usefully summarised by Middleton J in Kirby v Centro Properties Limited 
(No 2)15 as follows:

“The principles respecting disqualification for apprehended bias represent a 
balance between two competing policy considerations, namely the maintenance 
of public confidence in the judicial system, by ensuring that the public perceive 
that cases are decided only by reference to the evidence before the court, and the 
need for judges to discharge their duties unless good reason is shown.

The apprehension of bias principle is stated in Ebner v The Official Trustee in 
Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, 
Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):

“... a judge is disqualified if a fair-minded lay observer might reasonably 
apprehend that the judge might not bring an impartial mind to the resolution of 
the question the judge is required to decide.”

The question is one of possibility (real and not remote), not probability. If there 
is an appropriate apprehension of bias, then the judge must disqualify himself or 
herself, no matter what case management considerations arise in the efficient and 
effective determination of a proceeding.

In Ebner, the majority in the High Court affirmed that the application of this test 
involves two steps. First, there must be identification of what it is that might lead a judge 
to decide the particular questions before him or her other than on the merits. Second, 
having identified the factors or circumstances that might influence a departure from 
meritorious decision-making, it is “no less important” to articulate the “logical 
connection” between those factors and the fear that the judge might not apply proper 
judicial method (that is, merits based decision-making) in resolving the controversy on 
the facts and the law (at [8]). 

The mere fact that a judge has made a particular finding on a previous occasion does 
not necessarily give rise to an apprehension of bias. Nevertheless, in some situations 
previous findings may lead to disqualification and “what kind of findings will lead to 
relevant apprehension of bias must depend upon their significance and nature”: Gascor 








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v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom 
Brooking JA agreed); and see Cabcharge at [34].

However, as the majority observed in British American Tobacco Australia Services Ltd 
v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and 
in this regard: 

“... the lay observer might reasonably apprehend that a judge who has found a 
state of affairs to exist, or who has come to a clear view about the credit of a 
witness, may not be inclined to depart from that view in a subsequent case. It is 
a recognition of human nature” (at [139]). (Emphasis in original.)

The application of these principles does not change merely because a judge expressly 
acknowledges at the hearing of the first proceeding that different evidence may be led 
in the later proceeding, casting new light on the facts he or her had found in the previous 
proceeding. This is assumed to occur in any event. Such an acknowledgment does not 
necessarily remove the impression created by reading the earlier judgment that the views 
there stated might influence the determination of the same issue in a later judgment: see 
Laurie at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]

These principles must be carefully applied. It has been said that: “... disqualification 
flows from a reasonable apprehension that the judge might not decide the case 
impartially, rather than that he will decide the case adversely to a party”: Cabcharge at 
[32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

Needless to say, disqualification of a judge by reason of prejudgment must be “firmly 
established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to 
recusal by reason of apprehended bias.

To apply these principles in any given case is a matter of judgment and evaluation 
depending on the exact circumstances. Undoubtedly, the question of an apprehension of 
bias requires one to focus on the issues that the judge is called upon to decide - see eg 
British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per 
Brereton J. No strict approach should be taken in identifying the legal and factual issues. 
The issues before a judge sought to be disqualified may well be different in some 
respects to those issues determined in the earlier proceeding. At the core of the inquiry 
is an examination of the legal and factual issues on foot and the extent to which previous 
findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability 
to decide the matter other than on its merits. 

Because the test of apprehended bias involves “a fair-minded lay observer” who is 
observing a judge, the assumed characteristics of each need to be considered. 

A judge is trained and is required “to discard the irrelevant, the immaterial and the 
prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted 
in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); 
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, 
McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] 
(Heydon, Kiefel and Bell JJ). 








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As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed 
that a reasonable observer would note the possibility of the evidentiary position 
changing between the previous proceeding and the subsequent proceeding. 

In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at 
CL (with whom the other members of the New South Wales Court of Criminal Appeal 
agreed) stated that:

“The ordinary fair minded person understands that in the exercise of the judicial 
function it will be necessary, from time to time, for a judge to reconsider matters 
which have previously been considered or which may have been pronounced 
upon by that particular judge.”

In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ 
agreeing) stated that the fair-minded observer would recognise that a professional judge 
would be capable of departing from an earlier expressed opinion.

However, as I have indicated, applying these principles will be a matter of judgment and 
evaluation in the circumstances. The application of these principles to particular facts in 
earlier authorities, concerning as they do, the particular circumstances that may or may 
not have lead a judge to be disqualified, are not to be elevated to the “principles” to be 
applied. Nor is the application of the principles in any given case to be used as a gloss 
upon those principles. As the authorities demonstrate, including Laurie, the principles 
are relatively well established, but in the application of these principles reasonable 
minds may differ as to the result.”” (endnotes omitted)

[39] Also pertinent to this case, the Full Bench in Grabovsky v United Protestant Association 

NSW Ltd T/A UPA [2019] FWCFB 8605 at [49] said: 

‘[49] We stated that the fact that we have previously made decisions adverse to the 
Appellant is not determinative, relying on Kirby v Centro Properties Limited (No.2) and 
what was outlined by Justice Mason (as he then was) in Re J.R.L.; Ex parte C.J.L.:

“It needs to be said loudly and clearly that the ground of disqualification is a 
reasonable apprehension that the judicial officer will not decide the case 
impartially or without prejudice, rather than that he will decide the case 
adversely to one party. There may be many situations in which previous 
decisions of a judicial officer on issues of fact and law may generate an 
expectation that he is likely to decide issues in a particular case adversely to one 
of the parties. But this does not mean either that he will approach the issues in 
that case otherwise than with an impartial and unprejudiced mind in the sense in 
which that expression is used in the authorities or that his previous decisions 
provide an acceptable basis for inferring that there is a reasonable apprehension 
that he will approach the issues in this way.”’ (endnote omitted)

[40] As mentioned, the applicant sought to have the Full Bench recuse me from further 

dealing with his matter, despite no recusal application having ever been made to me in the 








[2020] FWC 181

27

conventional way. The respondent summarised these complaints and its response in 

submissions before the Full Bench which are repeated in the present matter as follows:

‘18. The Applicant complained about bias to the Full Bench of the Fair Work 
Commission in an appeal from the decision in Daniel Krcho [2019] FWC 5278. A lot 
of the same complaints are made in ASoD. The relevant complaints and the University’s 
responses in the Full Bench proceedings were as follows (and are adopted here):

52. A basis for the bias complaint is that DP Sams was apparently “clearly 
commandeering” at the hearing (AB, p.8). The Appellant at AB, p.8 extracts PN 
51 from the Transcript in support of that proposition. Notably, the extract in the 
Appeal, includes an exclamation mark (!) at the end of DP Sams statement that 
is not in the Transcript (AB, p. 306).
53. The Appellant then relies on an assertion that DP Sams “protected the 
respondent” from answering the Appellant’s question (AB, pp. 8-9). Such a basis 
misunderstands the nature of the hearing before DP Sams which was to hear 
submissions from each party; not cross-examination. In any event, the University 
answered the question asked by the Appellant (see PN 285 and 510 to 522 at 
AB, pp. 328 and 350) and the fact the Appellant did not find the University’s 
answer satisfactory does not mean DP Sams is biased in the relevant legal sense.
54. The Appellant then relies on the fact the Respondents were allowed to tender 
and rely on a bundle of documents (AB, p. 9). As a matter of procedural fairness, 
the Respondents were entitled to respond to the Interim Application after being 
served with it on 24 July 2019. The bundle (AB, p.386) was discrete; it contained 
material that was seen by, and known to, the Appellant previously (other than 
case extracts). As said above, the relevance of the material was explained by the 
Respondents at the hearing (see Transcript, PN 214 and PN 227 to 317 at AB, 
pp. 320 to 332). Also, as said above, the Appellant was given an adjournment in 
the hearing (PN 324), of 35 minutes (AB, p.333), to prepare a response, and was 
content with the course (PN 328 to 332). No bias is demonstrated, including on 
the grounds of the conduct of the hearing of the Interim Application.
55. The Appellant complains about the giving of an ex tempore decision as 
demonstrating bias (AB, p.9). For the reasons set out below at paragraphs [58] 
to [60] of these submissions, this basis for alleging bias is without merit. As is 
plain from the Transcript, DP Sams considered the Interim Application and 
heard all submissions before giving his decision.
56. The Appellant also complains about exchanges between him (and his wife) 
with DP Sams. There is no bias in a member of the Commission having 
exchanges with a party to understand the case and to focus the submissions on 
issues immediately relevant to the proceedings.
57. Further, the making of general observations, like that at paragraph [7] of the 
Decision, do not itself establish bias or prejudgment. So much is apparent when 
regard is had to the actual decision that properly sets out the relevant factual 
context, the relevant legal principles and applies those principles to the facts in 
an orthodox manner.

19. The Full Bench dismissed the Applicant’s appeal: Dr Daniel Krcho v. University of 
New South Wales & Ors [2019] FWCFB 8269. (See Tab 44 of “Respondents’ 








[2020] FWC 181

28

Documents”). At paragraph [59], all appeal grounds were found to be unlikely to be 
upheld.

20. To the extent the Applicant supports the claim of apprehended bias by cavilling with 
the findings of DP Sams in the Daniel Krcho [2019] FWC 5278, this argument is 
misplaced. The appeal from DP Sams’ decision was dismissed. The Full Bench made 
no findings of significant errors of fact or otherwise.’

[41] It seems, in his more recent recusal application, I am accused of: 

 Publication of falsities;

 Obstructions of justice; 

 Protecting and assisting the respondent; 

 ‘heavy’ bias, coercion and prejudice;

 Abuse of power and process; and 

 Gross miscarriage of justice.

‘Sugar coating’ the application in the introduction by using expressions such as ‘please kindly 

request’ or ‘respectfully request’, sit rather oddly with the hyperbolic and extravagant language 

used frequently in the body of the applicant’s submissions. 

[42] I earlier described the recusal application as unprecedented. I will explain further. In my 

view, this a bizarre and highly irregular application. The applicant seeks my recusal, seemingly 

not due to any claims of real or apprehended bias, but only if I do not do what he wants me to 

do in varying and recasting the 31 July 2019 decision. Such a proposition would effectively 

mean that I will make new and different findings, wholly based on the applicant’s subjective 

views and highly critical of the respondent’s evidence, without ever having heard, or considered 

the relevant evidence. It is an absurd and nonsensical proposition. 

[43] Put another way, if I effectively rescind and replace the Decision, which notably has not 

been successfully appealed, the applicant will not press for my recusal. If ever there was a 

suggested abuse of fair process, this must be it. Indeed, on one view, this proposition might be 

perceived as a party to proceedings, improperly seeking to influence, or encourage the 

Commission to alter a final decision, which the unsuccessful party simply does not agree with. 

In this respect, s 674(5) of the Act reads as follows: 








[2020] FWC 181

29

‘(5)  A person commits an offence if:

(a)  the person uses words (whether by writing or speech) that are intended to 
improperly influence another person; and

(b)  the other person is an FWC Member or a person attending before the FWC.

Penalty:  Imprisonment for 12 months.’

[44] Suffice to say, I will not be moved, let alone deflected by such an improper, intimidatory 

proposition. This conclusion would be enough to dismiss the recusal application. It is little more 

than a very unwise tactical device in the applicant attempting to achieve his main objective of 

preventing disciplinary action being taken against him. When viewed in this way, it is not a 

serious or genuine application for recusal at all. 

[45] Nevertheless, in my view, a fair minded lay observer, who had read the 31 July 2019 

decision, the transcript of the proceeding, or had listened to the numerous interlocutory 

telephone listings, would not reasonably apprehend that I might not bring an impartial mind to 

the issues to be decided in this case; particularly when it  must be noted, the Commission has 

not even reached the substantive application for stop bullying orders. 

[46] Further, in my view, a fair-minded lay observer could not distil from anything I have 

said, or determined as being conduct which disclosed that I had:

(a) Protected and assisted the respondents;

(b) Had displayed a ‘heavy’ bias, coercion and prejudice;

(c) Exhibited an abuse of power and process;

(d) Had engaged in a miscarriage of justice; or

(e) Published falsities.

[47] I reject, in particular, that I had ‘clearly commandeered’ the hearing on 26 July 2019. 

Listening to the audio recording, it is plainly obvious Mrs Krcho was not only interrupting and 

challenging me and Mr Mattson, but would often interrupt and overspeak her husband. At one 

point, she started clapping when she thought Mr Mattson had conceded one of the applicant’s 

arguments (which he had not). This behaviour is entirely consistent with what occurred in the 

consultation with Consultant Psychiatrist, Dr Bertucen, on 26 February 2019, and as was also 








[2020] FWC 181

30

observed by the University’s HR representative, Wendi Greenhalgh, in a meeting with the 

applicant and his wife on 12 July 2018, in which Ms Greenhalgh recorded: 

‘When I tried to speak to Daniel she kept jumping in and giving her opinion. She did not 
want Daniel to speak. Andrea was aggressive and disruptive.’

[48] I also observe that after Mr Mattson’s oral reply to the application for interim orders on 

26 July 2019, and on my own initiative, I adjourned for half an hour to allow the applicant and 

his wife time to prepare a reply – hardly an action demonstrating a bias in favour of the 

respondents. 

[49] Moreover, the applicant’s submissions even criticise decisions and rulings I have given, 

which he had sought for his own benefit. For example, he sought urgent interim orders on 26 

July 2019, but now complains I must have predetermined the outcome because I delivered an 

ex tempore decision. Putting aside that urgent interim order applicants are invariably 

determined on an ex tempore basis, the applicant omitted the fact that he had actually asked me 

to make the interim orders without a hearing because, as he asserted, it must be plainly obvious, 

from his submissions, that I did not even need the respondent’s submissions to find in his 

favour. Obviously, this meant I had his submission well prior to the hearing and nothing was 

necessary to be said in the hearing that had not been repeated many times previously. 

Accordingly, preparing a short ex tempore decision was a relatively easy task. 

[50] Secondly, the applicant criticises the Commission for adjourning his substantive stop 

bullying application until he is fit to prepare and conduct his case. The Commission reluctantly 

agreed to the adjournment at the applicant’s express request. I note again that while he claims 

he cannot prepare and present his substantive case, he has no trouble in preparing long, detailed 

submissions for interim order applications and for the appeal of the 31 July 2019 decision. I 

note that he has also recently made long and detailed applications to Safe Work and the 

University, which are annexed to his current submissions. 

[51] Thirdly, the applicant claims my bias in favour of the respondents was demonstrated in 

an exchange between the Bench, Mr Mattson and the applicant when the applicant demanded 

Mr Mattson answer whether he would be accepted back to work, if his GP agreed he was fit to 

do so. Two responses can be made about this. Mr Mattson was not in the witness box giving 








[2020] FWC 181

31

evidence and I could not compel him to answer, but secondly, and in any event, Mr Mattson 

had answered, the question; the reality was the applicant did not like the answer. 

[52] Fourthly, the applicant continues to insist he should be provided complete access to his 

work email, which has been denied to him by the University. Let me make it absolutely clear, 

the applicant’s University email is, and continues to remain the property of the University. He 

has no right to its access, much less a right to use the University’s resources in order to prepare 

for, and search out material in his litigation against his employer. In any event, the denial of 

this access does not appear to have hampered him or his wife in any way, in preparing, printing 

and presenting material which he perceives to be relevant to his legal rights.

[53] Fifthly, I am aware that the applicant made a complaint to the President on 

18 December 2019 (incorrectly made to the Director, Client Services), in which he alleges that 

I had demonstrated bias in favour of the University by not extending the time for him to file 

reply submissions in this matter. The relevant timetable is set out at [2] above. Rather than 

demonstrating bias in the University’s favour, the evidence is that I had expressly rejected the 

University’s objection to granting the applicant further time and, in fact, extended the 

applicant’s time twice to reply, to 23 December 2019 and then to 9 January 2020. This 

effectively meant that the University had three days to respond to the voluminous (albeit mostly 

replicated) documentation of the applicant, and the applicant was provided 18 days to respond 

to the University’s material, the vast bulk of which the applicant has had in his possession for 

a considerable period of time.

[54] In this context, it is difficult to see how any fair-minded lay observer would consider 

this series of events to be actions/decisions taken by me as demonstrating a reasonable 

apprehension of bias against the applicant.

Application for anonymity and confidentiality orders

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

‘593 Hearings

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








[2020] FWC 181

32

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

Confidential evidence in hearings

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

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

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

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

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

(i)  evidence given in the hearing;

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

(4)  Subsection (3) does not apply to the publication of a submission made to the FWC 
for consideration in an annual wage review (see subsection 289(2)).’

[56] Section 594 of the Act deals with confidential evidence and reads:

‘594 Confidential evidence

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

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

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

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

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

(2)  Subsection (1) does not apply to the publication of a submission made to the FWC 
for consideration in an annual wage review (see subsection 289(2)).’








[2020] FWC 181

33

[57] At this point, I accept I was mistaken when I authorised an email to the parties on 31 July 

2019, which stated that no party had raised the issue of anonymisation of the persons in the 

proceedings. The issue was raised in the hearing on 26 July 2019. I apologise for the mistake. 

However, a few matters arise from this issue. Firstly, the mistake is not referred to in the 31 

July 2019 decision. Secondly, although the University’s position was that it did not oppose the 

continuation of the arrangement adopted by Hampton C on 31 October 2018, it did not 

necessarily support the arrangement now and it does not do so in this case. A not dissimilar 

position arose in Owen [2019] FWC 8567, where the respondent initially did not object to an 

anonymity application, but later objected to it. Thirdly, I have no idea what to make, or infer 

from the applicant’s observation under this heading, that Ms Rena Christmann, In House Legal 

Counsel, and Professor Mark Hoffman, Dean of the University’s Engineering Faculty, had 

recently left the University. The applicant could not possibly know why either of them left the 

University. 

[58] In any event, the applicant’s continued protest about he and his wife’s names and 

personal medical and financial information, does not impact, in any way, on my mistake. He 

misses the point entirely. As the Full Bench said in the Appeal Decision at [56]: ‘… the Deputy 

President was not obliged or required to adopt the confidentiality arrangement proposed [by 

Hampton C]’. This was the real point of the email of 31 July 2019. Further, the Full Bench 

decided in the next paragraph that my failure to make a confidentiality order did not give rise 

to an arguable case of error. The Full Bench said at [57]:

‘[57] A review of Dr Krcho’s submissions in support of the application reveals that 
the request for a confidentiality order was confined to a circumstance where the 
Commission “decides to exercise its authority to run its own independent investigation 
and/or research to inform itself and/or to resolve the matter.” It is apparent that the 
interim application before the Deputy President did not warrant an independent 
investigation into the issues giving rise to the substantive stop bullying application. It 
was therefore not incorrect for the Deputy President to form the view that the 
confidentiality issue was more appropriately stood over until such time as the 
substantive application was heard. In the circumstances therefore, we are not 
persuaded that the failure to make a confidentiality order in respect of the Decision 
gives rise to an arguable case of appealable error. The grounds of appeal directed 
to this aspect of the Decision are therefore not likely to be upheld and so permission 
to appeal is likely to be refused.’ (endnote omitted) (my emphasis)








[2020] FWC 181

34

[59] The principles applying to the anonymisation of persons in proceedings and 

confidentiality of evidence in proceedings are well known. In the ordinary course, the interests 

of open justice require that decisions of the Commission will generally identify all parties. So 

much so is clear from the decision in Mac v Bank of Queensland Limited; Michelle Locke; 

Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman [2015] FWC 

774, where Hatcher VP said at [6]-[7]:

‘[6] The principle of open justice will usually be the paramount consideration in 
determining whether a confidentiality order of the type sought by the respondents ought 
be made. The main features of that principle were usefully summarised in the NSW 
Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v 
James Warburton (No 1) as follows:

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

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

[4] The consequence of the principle of open justice is that embarrassing, 
damaging and inconvenient facts may occasionally come to light. That 








[2020] FWC 181

35

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

[5] To avoid the consequences that sometimes follow from the conduct of 
proceedings publicly and in open view, parties can, and frequently do, choose to 
litigate their disputes by private commercial arbitration. But if they choose to 
litigate in court, they must accept the necessity for the Court to conduct its 
proceedings openly and with transparency.”

[7] The above passage describes the open justice principle in relation to courts, but I 
consider that the passage is equally applicable to a tribunal such as this Commission 
which conducts its processes in a quasi-judicial fashion.’

[60] I respectfully agree with the Vice President’s conclusions. I do not consider the facts 

and circumstances of this case justify the displacement of the ‘ordinary course’ of open justice 

to accommodate the applicant’s request for he and his wife’s anonymity. I come to this 

conclusion for the following reasons:

(a) Since Hampton C’s decision on 31 October 2018, this matter has taken a convoluted 

and complicated course, involving numerous interlocutory applications and 

proceedings which have been listed and published under the applicant’s name. In 

other words, the circumstances which faced the Commissioner in October 2018 

were materially different to those which now prevail.

(b) There was no evidence that the applicant’s ‘reputation, career, any future 

employment anywhere’ has suffered ‘irreparable damage’. Mere assertions to this 

effect are meaningless and insufficient. In any event, I do not understand there has 

been any general media interest, or any publicity at all of the applicant’s case and 

its facts and circumstances. In the absence of any objective evidence justifying the 

applicant’s concerns, I do not intend to displace the primary consideration of open 

justice by anonymising the applicant and his wife’s names.

(c) It has been six months since the 31 July 2019 decision, without any objective 

evidence of damage being occasioned on the applicant or his wife.

(d) The present request for anonymity and suppression before me cannot impact at all 

on the un-sanitised decision of the Full Bench of 10 December 2019. Given that the 








[2020] FWC 181

36

appeal decision will remain on the public record (unless the Full Bench decides 

otherwise), it is difficult to see what point there is to making anonymity or 

suppression orders dealing with the same subject matters in the Full Bench decision. 

It is unclear whether the applicant sought similar orders before the Full Bench. As 

it is certainly not mentioned in the decision, I suspect no such request was made.

(e) In Owen [2019] FWC 8567, Lee C dealt with applications for orders seeking to 

prohibit the publication of the name of the applicant. The Commissioner said at [9] 

referring to the applicant’s arguments as follows:

‘At the hearing on 16 December 2019, the Applicant continued to press the 
application made on the first day of hearing, namely to have the name of the 
Applicant made confidential. The Applicant confirmed that it also agreed to the 
interim order being made on a permanent basis, however submitted that the 
Applicant’s name should be made confidential as a minimum. The Applicant 
referred to claims that the Applicant had been bullied in the past and has a current 
injury which would mean that medical information which is personal to him 
would be disclosed, which is in the material before the Commission. The 
Applicant made the submission that those who have been bullied in the past are 
likely to be bullied again. Further, that this could damage the Applicant’s 
prospects for further employment. The Applicant submits that this is an 
important ground of consideration for the Commission to take into account 
before such orders are made.’ (endnotes omitted)

[61] In dismissing the application, the Commissioner said at [13]:

‘As there was not finality to the proceedings, the principle that there will be a 
deterrent effect that is in the public interest is not relevant to the consideration 
here. However, there is no evidence before the Commission which demonstrates 
that there has been adverse treatment suffered by the Applicant as a result of the 
matter being made public as described above. There has also been no satisfactory 
explanation as to why the material before the Commission in respect to this 
matter, is of a confidential nature. There were no medical reports in evidence. 
Nor has there been evidence before the Commission that would frustrate the 
administration of justice, to warrant an order being made. Significantly, the 
Applicant’s union, the UFUA has not itself taken steps to maintain 
confidentiality and has in fact published information related to the application 
on social media. Taking into account all of the circumstances, I am not satisfied 
that the Applicant has established that there should be a departure from the 
presumption of the administration of open justice in this matter.’

[62] For the same reasons, I am not prepared to grant confidentiality orders in respect to the 

applicant’s medical records. In this case, the applicant’s fitness to return to work is a ‘live’ and 

strongly contested issue in this case. The applicant’s medical records are primarily in the form 








[2020] FWC 181

37

of a number of different doctors’ reports with specific diagnoses and conclusions as to his 

fitness or unfitness to return to work, and conflicting views about the terms and conditions of 

such a RTW plan. To do as the applicant proposes would make any future decisions on crucial 

contested issues in this case, unintelligible and incomprehensible.

[63] As to the applicant and his wife’s personal financial circumstances, I will grant limited 

confidentiality orders as to the disclosure of such information. I make the following order:

1. The applicant and his wife’s personal financial circumstances and records relating 
thereto, unrelated to these proceedings, shall remain confidential to the parties and 
the Commission, unless otherwise ordered by the Commission.

[64] To avoid doubt, the above order shall not apply to the applicant’s salary or accumulated 

benefits and accrued leave. Such information is regularly required to be disclosed in unfair 

dismissal cases, where the Commission is mandated to assess appropriate compensation, 

according to the Sprigg Formula; see: Sprigg v Paul’s Licensed Festival Supermarket (1998) 

88 IR 21, where a dismissal is found to be unfair and reinstatement is determined to be 

impractical.

CONCLUSION

[65] On the material which has been provided by both parties, I am not satisfied that the 

applicant’s stop bullying application has, prima facie, reasonable prospects of success, such as 

to justify the making of the interim orders sought. As it was said by the Full Bench in Tunsted 

v Busways North Coast Pty Ltd [2020] FWCFB 25 at [33]-[34]:

‘[33] Given all of the above, changes in the circumstances of the parties and/or the 
workplace may provide a context in which the stop-bullying application has no 
reasonable prospects of success by virtue of the import of s.789FF(1)(b)(ii) of the Act. 
When considered as a preliminary point, this is not a reflection upon the substantive 
merit (or otherwise) of that application (s.789FF(1)(b)(i)), but rather, consideration only 
of whether there is the absence of one of the (other) prerequisites for the making of any 
orders from such an application due to the fact that the applicant is no longer a worker 
at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in making that 
assessment the Commission must consider whether there is any other reasonably likely 
context in which the applicant might, as a worker, be subject to the risk of future 
workplace bullying conduct in the relevant workplace by the individual or group.








[2020] FWC 181

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[34] Further, the finding that there is no reasonable prospect of success informs the 
exercise of any discretion that arises and that discretion must be assessed in the context 
of each particular case and is not to be exercised lightly.’

[66] I stress that I have no final view as to the merits of the applicant’s substantive stop 

bullying matter. Nevertheless, it must be patently obvious that the University’s continued 

patience in seeking to have the applicant engage with it for a sensible RTW cannot go on where 

it has been met by obfuscation, resistance, unreasonable challenge, nonsensical legal objections 

and downright non-compliance.

[67] I note that despite the applicant’s claim that in 33 years of employment he has never 

refused a lawful or reasonable direction of the employer, it is worth recalling that what appeared 

to be the genesis of the applicant’s relentless ongoing challenge to the University, was his 

refusal to attend White Card training in 2018 when directed to do so.

[68] As I have previously opined, it is inappropriate to permit the stop bullying jurisdiction 

as a means of stalling or circumventing reasonable management action taken in a reasonable 

manner. As was said by Hampton C in D.K. [2018] FWC 6691 at [19]:

‘… interim orders of the nature being considered here should not be issued lightly. The 
direct intervention of the Commission at such an early stage of proceedings should be 
exercised with considerable caution. Further, the mere indication that a disciplinary 
process was involved in the complaints of workplace bullying, without much more, is 
unlikely to trigger the balance of convenience necessary for such action. Each 
application must be considered in its own right and circumstances.’

[69] As to the balance of convenience, the applicant cannot continue to resist every effort to 

have him RTW and engage in that process, particularly when he claims to be fit for work, but 

cannot pursue his Commission proceedings. The University has a right to manage its employees 

and in the face of blatant disobedience and a failure to cooperate, these factors must weigh 

against the balance of convenience favouring the applicant.

[70] Further, given the applicant’s employment may be terminated, if the disciplinary process 

results in such an outcome, the applicant obviously has other avenues under the Act to challenge 

the basis of such a dismissal, including by relying on the material that has been provided to 

date, including claims such as ‘mob bullying’ which have not been considered to this point. 

Indeed, there is no automatic rule that a stop bullying application is dismissed or extinguished 








[2020] FWC 181

39

on the grounds that the application has no reasonable prospects of success; see: Dr Ng [2019] 

FWC 3055. These factors tell against a finding that the balance of convenience favours the 

applicant.

[71] For all the aforementioned reasons, the applicant’s application for interim orders is 

dismissed, save for the confidentiality orders I make at [63] above.

DEPUTY PRESIDENT

Written submissions:

For the applicant: 16 December 2019

For the respondents: 17 December 2019

Applicant in reply: 6 January 2020

Printed by authority of the Commonwealth Government Printer

PR715893


E FAIR WORK SEAL O SSION THE

Cases cited by this decision: