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Legal Services Commissioner v Sewell[2019] QCAT 181

Legal Services Commissioner v Sewell[2019] QCAT 181

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Sewell [2019] QCAT 181

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant/appellant)

v

DONNA MAREE SEWELL

(respondent)

APPLICATION NO/S:

OCR181-15

ORIGINATING APPLICATION NO/S:

OCR181-15

MATTER TYPE:

Occupational Regulation Matters - Application

DELIVERED ON:

19 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

Assisted by:

Dr John de Groot, Legal Panel Member

Dr Margaret Steinberg AM, Lay Panel Member

ORDERS:

  1. Until further or other order, the tribunal prohibits the publication of all information which enables the identification of XY.
  1. The decision of 31 October 2017 in OCR181-15 be redacted to remove the information subject to the non-publication order in direction 1 above.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PRACTICE AND PROCEDURE – NON-PUBLICATION ORDER – DECISIONS AND ORDERS – Queensland Civil and Administrative Act 2009, s 66 – where application for disciplinary proceedings dismissed – where decision published on the Queensland Supreme Court Library website – where the applicant applies to deidentify a named person in the published decision 18 months following the publishing of the decision – where the applicant argues the decision contains confidential medical information capable of causing reputational damage of a named person – where principle of open justice applies - whether special circumstances justify making a deidentification order.

Queensland Civil and Administrative Act 2009, ss 32, 66

Cutbush v Team Maree Property Services (No 3) [2010] QCATA 89

Legal Services Commissioner v Sewell [2017] QCAT 387

NCK v A (Qld) Pty Ltd & Ors [2013] QCAT 111 (Anti-Discrimination)

REPRESENTATION:

 

Applicant:

Acting Legal Services Commissioner Robert Brittan

Respondent:

Mr Ben Cohen, Partner, Bartley Cohen

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    The Legal Services Commissioner has filed a miscellaneous matters application seeking reissuing of the reasons in Legal Services Commissioner v Sewell [2017] QCAT 387 deidentifying a named person under s 66(1)(c) QCAT Act.
  2. [2]
    The discretion to make orders prohibiting publication of information that may enable a person affected by a proceeding is conferred by s 66(2)(c) QCAT Act.
  3. [3]
    A non-publication order may relevantly be made under s 66(2)(b) and (e) QCAT Act by the tribunal as constituted for the proceeding on the application of a party.
  4. [4]
    The applicant has the onus of demonstrating that recalling and cancelling it will not offend the open justice principle or impair community confidence in the integrity of tribunal procedures.
  5. [5]
    In Cutbush v Team Maree Property Services (No 3)[1] the appeal tribunal held that where the identity of affected third parties is concerned publication tending to embarrass or cause “unfortunate financial effects” is generally not sufficient reason to redact names after they have already been published.
  6. [6]
    However, evidence of a “fragile” mental state was sufficient to justify a non-publication order in NCK v A (Qld) Pty Ltd & Ors.[2]
  7. [7]
    As we understand the correct test non-publication of health related information or anonymisation to protect identity is permissible where the tribunal considers it necessary to do so for one of the reasons mentioned in s 66(2) QCAT Act including where full disclosure would be contrary to the public interest to or non-disclosure is in the interests of justice.
  8. [8]
    The information in issue was published 18 months ago.  The application was not made until after the named person recently drew the applicant’s attention to its detrimental effect on him.
  9. [9]
    Despite the long delay and prior publication anonymisation is in the interests of justice and necessary to protect or at least minimize the damage to the professional reputation and future employability of the person affected.  We are reasonably satisfied on the filed material that identifying him by name and referring to his past mental disorder is contrary to the public interest because it would deter witnesses in a similar position from coming forward and hinder the Commissioner from taking appropriate disciplinary action in analogous cases.
  10. [10]
    Open justice is an important principle but not the paramount consideration here. It can be departed from without harm to the legal process or the community’s faith and trust in the court system.
  11. [11]
    The application is granted along with any procedural relief needed to regularize it.
  12. [12]
    Orders –
    1. Until further or other order, the tribunal prohibits the publication of all information which enables the identification of XY.
    2. The decision of 31 October 2017 in OCR181-15 be redacted to remove the information subject to the non-publication order in direction 1 above.

Footnotes

[1]  [2010] QCATA 89.

[2]  [2013] QCAT 111 (Anti-Discrimination).

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Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Sewell

  • Shortened Case Name:

    Legal Services Commissioner v Sewell

  • MNC:

    [2019] QCAT 181

  • Court:

    QCAT

  • Judge(s):

    Carmody J

  • Date:

    19 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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