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  4. McLeod Heeman v State of Queensland - [2020] QCAT 352

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McLeod Heeman v State of Queensland[2020] QCAT 352

McLeod Heeman v State of Queensland[2020] QCAT 352

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McLeod Heeman v State of Queensland [2020] QCAT 352

PARTIES:

braiden maxx mcleod-heeman (by heidi heeman)

(applicant)

v

state of queensland 

matthew denzin

samantha ilic

sylvia boase

(respondents)

APPLICATION NO/S:

ADL006-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

17 September 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. The application that the proceedings be heard in closed court is refused.
  2. The application for a notice to produce is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – PRODUCTION AND INSPECTION OF DOCUMENTS – where application for closed court on basis child is the complainant – where application for production of staff photographs to identify potential witnesses – whether a fishing expedition

Anti-Discrimination Act 1991 (Qld), s 191

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 66, s 90

BSO Network Inc v EMClarity Pty Ltd [2020] QSC 186

Director-General, Department of Community Services Re; Jules [2008] NSWSC 1193

Douglas v CTML Pty Ltd [2018] QCAT 461

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Mr E.Shorten, counsel instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    These proceedings relate to alleged unlawful discrimination by the respondents on the basis of impairment against Braiden McLeod-Heeman, while he was a student at Trinity Beach State School. The complaint has been brought on his behalf by his mother, Heidi Heeman.
  2. [2]
    On 28 July 2020, Ms Heeman filed an application for miscellaneous matters seeking an extension of time for the filing of evidence, an order for a closed hearing and a direction under s 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) that Trinity Beach State School produce staff photos from all staff that worked in the special education unit for 2018, 2019 and 2020.
  3. [3]
    The respondents consented to an eight week extension of time for the filing of evidence and also to Ms Heeman’s request for a closed hearing.
  4. [4]
    On 17 August 2020 the Tribunal made directions granting an extension of time for the filing of evidence and sought submissions from the parties addressing, in relation to the application for a closed hearing, s 90(2) of the QCAT Act and seeking the respondents’ submissions in relation to the application to produce the staff photographs. Further submissions were filed by the respondents on 14 September 2020. No further submissions were provided by the applicant.

Proceedings in closed court

  1. [5]
    The Tribunal has the power pursuant to s 90 of the QCAT Act to direct a hearing or part of a hearing be held in private.
  2. [6]
    Section 90 provides:

90 PUBLIC HEARING

  1. Unless an enabling Act that is an Act provides otherwise, a hearing of a proceeding must be held in public.
  2. However, the tribunal may direct a hearing or a part of a hearing be held in private if the tribunal considers it is necessary—
  1. to avoid interfering with the proper administration of justice; or
  2. to avoid endangering the physical or mental health or safety of a person; or
  3. to avoid offending public decency or morality; or
  4. to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  5. for another reason in the interests of justice.
  1. The tribunal may make directions about the persons who may attend a hearing or a part of a hearing to be held in private.
  2. The tribunal may make a direction under this section on the application of a party to the proceeding or on its own initiative.
  1. [7]
    The Tribunal also has power to make an order prohibiting the disclosure of information that may tend to identify a person. Those provisions are s 66 of the QCAT Act and s 191 of the Anti- Discrimination Act 1991 (Qld) (AD Act).
  2. [8]
    Section 66 of the QCAT Act provides:

66 NON-PUBLICATION ORDERS

  1. The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
  1. the contents of a document or other thing produced to the tribunal;
  2. evidence given before the tribunal;
  3. information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
  1. The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
  1. to avoid interfering with the proper administration of justice; or
  2. to avoid endangering the physical or mental health or safety of a person; or
  3. to avoid offending public decency or morality; or
  4. to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  5. for any other reason in the interests of justice.
  1. The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
  2. The tribunal’s power to act under subsection (1) is exercisable only by—
  1. the tribunal as constituted for the proceeding; or
  2. if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.
  1. [9]
    Section 191 of the Anti-Discrimination Act 1991 (Qld) provides:

191 ANONYMITY

  1. If the tribunal is of the reasonable opinion that the preservation of anonymity of a person who has been involved in a proceeding under the Act is necessary to protect the work security, privacy or any human right of the person, the tribunal may make an order prohibiting the disclosure of the person’s identity.
  2. A person must comply with an order.

Penalty—

Maximum penalty—100 penalty units.

  1. In this section, a reference to involvement in a proceeding under the Act includes—
  1. making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  2. being a respondent to such a complaint; and
  3. involvement in a prosecution for an offence against the Act ; and
  4. giving information or documents to a person who is performing a function under the Act ; and
  5. appearing as a witness in a proceeding under the Act .
  1. [10]
    Section 90 provides that, unless an enabling Act provides otherwise, a hearing must be held in public. The relevant enabling Act is the Anti-Discrimination Act 1991 (Qld).[1] Unlike other statutes, for example the Working with Children (Risk Management and Screening) Act 2000 (Qld)[2] or Child Protection Act 1999 (Qld),[3] there is no provision that requires discrimination proceedings be held in private. That is the case even where those proceedings involve children.
  2. [11]
    There are sound reasons why, in my view, particularly in proceedings involving alleged discrimination and human rights, they would be held in open court. I am not satisfied, given the importance of the principles underpinning an open justice system and the basis upon which the application is made, that it is in the interests of justice that the hearing be closed.
  3. [12]
    I refer to a decision in the parens patriae jurisdiction of the New South Wales Supreme Court in Director-General, Department of Community Services Re; Jules[4] involving highly sensitive issues surrounding whether a child should be made a ward of the state to enable the child to be vaccinated in circumstances where the child was at a high risk of contracting Hepatitis B from his mother. There, Brereton J, in revoking an order previously made that the proceedings be heard in closed court, held:

While (NSW) Civil Procedure Act 2005, s 71C, provides that the business of the Court in relation to any proceedings may be conducted in the absence of the public if it concerns the guardianship, custody or maintenance of a minor, that is not to say that such business must be conducted in the absence of the public. Again, a practice seems to have developed of practically invariably making an application, in this type of proceeding, that it be heard in closed court, and it seems that those orders are at least very frequently, if not invariably, made. In my view, great caution is required before determining that proceedings, even of this type, should be conducted in closed court. It is one thing to make an order, as has been done in these proceedings (and there is no suggestion to the contrary) prohibiting the publication or disclosure of any information that would tend to reveal the identity of a party or a child, but it is quite another to order that the proceedings be conducted effectively in secret. The issues which typically arise in this type of case — whether they involve blood transfusions, vaccinations, compulsory treatment for anorexia nervosa, or the manifold other issues that arise — are generally of significant public interest, not merely out of curiosity but because all parents and the community as a whole have deep and abiding interest in the welfare of children. Proceedings such as these have a significant informative and educative function. It is important that what the Court does in this field be open to public knowledge, information and scrutiny.

Proceedings in the Family Court of Australia — in which there is a large amount of litigation concerning the welfare, custody and guardianship of children — are not heard in closed court, although they are protected by a statutory prohibition on publication that would identify the parties. Adoption proceedings are required to be heard in closed court by the particular legislation which applies to adoptions, but traditionally special considerations of confidentiality have applied to them. I do not see why proceedings in the parens patriae jurisdiction, including for medical treatment orders, should as a general rule be heard in closed court. There may no doubt be some cases in which that course is appropriate, but ordinarily sufficient protection of the child will be achieved by a non-publication order of the type to which I have referred.[5]

  1. [13]
    The Tribunal may make an order prohibiting the disclosure of a person’s identity under s 191 of the AD Act where the Tribunal is of the reasonable opinion that it is necessary “to protect the work security, privacy or any human right of the person.” A similar power also exists in s 66 of the QCAT Act to make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.[6]
  2. [14]
    In my view, this is a case where the appropriate order may be a non-publication order under s 66 of the QCAT Act in respect of the complainant’s identity. If the applicant wishes to apply for such an order then she should do so addressing the factors in s 66(2) of the QCAT Act. Similarly, in relation to any other children that may be referred to in the proceeding, the parties may wish to apply for an order prohibiting the disclosure of their identity under s 191 of the AD Act.
  3. [15]
    In view of the above, I am not satisfied under s 90 of the QCAT Act, that this is an appropriate case for a closed hearing. Accordingly, the application for a closed hearing is refused.

The application for a notice to produce

  1. [16]
    On 28 July 2020 the applicant made an application under s 62(3) of the QCAT Act for a direction requiring the respondents to produce “staff photos from SEP/unit”. Subsequent correspondence to the Tribunal clarified that what is sought is disclosure of photographs of all staff that worked in the Special Education Program (SEP) at Trinity Beach State School in 2018, 2019 and 2020 along with matching ‘names/surnames’.
  2. [17]
    The applicant, in support of her application, submits:

I need to view photos to get names/surnames for legal documents and to match up faces with name or vie versa as the school is being uncooperative and I do not know every ones names.

  1. [18]
    The respondents do not consent to the request for production of staff photographs in the SEP unit for 2018, 2019 and 2020 because the staff photographs because:
    1. (a)
      The applicant does not demonstrate the direct relevance of the documents sought to the issues in dispute;
    2. (b)
      The request for production of the SEP staff photographs is too broad – not all SEP teachers and teacher aides worked with Braiden or were connected with the dispute;
    3. (c)
      The 2020 staff photographs are outside the claim period;
    4. (d)
      The application does not demonstrate that the documents sought are necessary in order for all relevant facts to come under scrutiny at a hearing of the proceeding.
  2. [19]
    Section 62 of the QCAT Act provides, relevantly:

62 DIRECTIONS

  1. The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
  2. The tribunal may hold a directions hearing for giving the direction before any other hearing is held for the proceeding.
  3. Without limiting subsection (1), the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or provide information to—
  1. the tribunal; or
  2. another party to the proceeding.

…

  1. [20]
    The exercise of the Tribunal’s power to order disclosure of documents was considered in Douglas v CTML Pty Ltd.[7] There it was held:

The Tribunal has a discretion as to whether to make directions that a party produce certain documents. In exercising that discretion the Tribunal will balance the costs, time and possible oppression to the party required to produce against the importance and likely benefits to the applying party (fn Simpson v Thorn Australia Pty Ltd trading as Radio Rentals [2018] FCA 1219, [9]).[8]

  1. [21]
    Documents will only be directed to be produced where they are described with particularity and have demonstrated direct relevance to the issues in dispute.[9] Parties are not allowed to engage in fishing expeditions by way of an application to produce for the purpose of seeking to obtain possible evidence.
  2. [22]
    It is relevant therefore, in determining whether to order disclosure of the photographs, to consider the allegations of discrimination made by the statement of contentions. If the photographs are not directly relevant to the contentions, they will not be disclosable. In relation to the staff photographs of 2020 the applicant argues that she needs those photographs in case some staff have changed their name due to marriage. The respondents argue that they are not aware of any staff changing their name in the last 12 months and that the photographs are otherwise outside the material time for these proceedings. The complaint was made on 2 October 2019 and no out of time allegations were accepted. The staff photographs of 2020 are outside the relevant time period and, without submissions as to how they are directly relevant to the proceedings are, accordingly, not disclosable.
  3. [23]
    The complaint is brought against the principal of the complainant’s school, the Head of Special Education at the school and a special education teacher at the school. Those people are identified. It seems that the applicant wants the photographs from 2018 and 2019 in an effort to try to identify persons she thinks may have witnessed various incidents during the time frame relevant to the proceedings.[10] The applicant does not, however, attempt to identify those incidents or to provide any details in relation to the incidents, including how they might be relevant to the proceedings.
  4. [24]
    The application for a notice to produce filed on 28 July 2020 is dismissed.

Footnotes

[1]QCAT Act, s 6(2)(a).

[2]Under s 361(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) a hearing of a proceeding for a QCAT child-related employment review must be held in private.

[3]Under s 99J of the Child Protection Act 1999 (Qld), a hearing of a proceeding to which Part 2 of the Act applies, must be held in private.

[4][2008] NSWSC 1193.

[5]Ibid at [24]-[25].

[6]The Tribunal can only make the order if it considers it necessary for the reasons set out in s 66(2).

[7][2018] QCAT 461.

[8]Ibid at [6].

[9]BSO Network Inc v EMClarity Pty Ltd [2020] QSC 186.

[10]Email of Heidi Heeman dated 3 August 2020 to QCAT.

Close

Editorial Notes

  • Published Case Name:

    McLeod Heeman v State of Queensland

  • Shortened Case Name:

    McLeod Heeman v State of Queensland

  • MNC:

    [2020] QCAT 352

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    17 Sep 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
BSO Network Inc v EMClarity Pty Ltd [2020] QSC 186
2 citations
Jump To
Cite 1 - [2020] QSC 186
Cite 2 - [2020] QSC 186
Douglas v CTML Pty Ltd [2018] QCAT 461
3 citations
Jump To
Cite 1 - [2018] QCAT 461
Cite 2 - [2018] QCAT 461
Cite 3 - [2018] QCAT 461
Re Jules [2008] NSW SC 1193
3 citations
Jump To
Cite 1 - [2008] NSW SC 1193
Cite 2 - [2008] NSW SC 1193
Cite 3 - [2008] NSW SC 1193
Simpson v Thorn Australia Pty Ltd trading as Radio Rentals [2018] FCA 1219
1 citation
Jump To
Cite 1 - [2018] FCA 1219

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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