Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. JCN v James Cook University & Ors No 3 - [2024] QCAT 258

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

JCN v James Cook University & Ors No 3[2024] QCAT 258

JCN v James Cook University & Ors No 3[2024] QCAT 258

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JCN v James Cook University & Ors No 3 [2024] QCAT 258

PARTIES:

JCN

(applicant)

v

JAMES COOK UNIVERSITY

(first respondent)

PROFESSOR RICHARD MURRAY

(second respondent)

DR RANJIT RASALAM

(third respondent)

MS LAURA-ANNE BULL

(fourth respondent)

APPLICATION NO/S:

ADL005-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

24 April 2024

HEARING DATES:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. Subject to Order 2, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of the following, other than to the parties to the proceeding (including legal representatives acting on their behalf), is prohibited without further order of the Tribunal:
  1. the original (unredacted) Reasons for Decision issued in this proceeding on 8 December 2023 (the Original Reasons);
  2. the names of those persons named in the Original Reasons who are anonymised in the redacted version of the Reasons for Decision referred to in Order 3 (Redacted Reasons);
  3. all of the information contained in the Original Reasons which has been redacted in the Redacted Reasons;
  4. the contents of all documents or things filed in or produced to the Tribunal in the proceeding;
  5. evidence given before the Tribunal, including transcript evidence in the proceeding.
  1. Each of the parties to the proceeding is permitted to publish, solely for the purpose of any application for leave to appeal or appeal to the Appeal Tribunal, or any application for leave to appeal to the Queensland Court of Appeal, the Original Reasons and the names, information, documents, things, and evidence referred to in Order 1.
  2. The Redacted Reasons have been prepared to give effect to these Reasons for Decision (concerning the issue of non-publication) and, subject to any further order, the Redacted Reasons may be published on the Queensland Supreme Court Library website, following the expiry of 14 days after the issue of this Decision.
  3. The Applicant is refused any further extension of time to comply with Direction 4(b) of the Tribunal’s directions dated 22 February 2024.

CATCHWORDS:

PROCEDURE – PROCEEDINGS IN QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – JUDGMENTS AND ORDERS – GENERALLY – REASONS FOR JUDGMENT – NON-PUBLICATION ORDERS – where the applicant brought proceedings against the respondents alleging direct and indirect discrimination, and victimisation, contrary to the Anti-Discrimination Act 1991 (Qld) – where applicant’s complaint was dismissed – where Reasons for Decision published – where two persons named in the Reasons sought non-publication orders – whether a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should be made in respect of those persons – whether the Tribunal should, of its own initiative, make non-publication orders in respect of other persons named in the Reasons

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

Anti-Discrimination Act 1991 (Qld), s 191

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

Merlo v Queensland Law Society Inc (No 2) [2023] QCAT 459

Minister for Immigration and Border Protection v Egan [2018] FCA 1320

Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422

Russell v Russell (1976) 134 CLR 495

YWG v Medical Board of Australia [2023] QCAT 93.

APPEARANCES & REPRESENTATION:

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

Applicant:

Self-represented

Respondents:

Colin Biggers & Paisley Lawyers

REASONS FOR DECISION

Introduction

  1. [1]
    The primary Decision of the Tribunal in this proceeding (‘the primary Decision’) was made on 8 December 2023.[1]
  2. [2]
    These Reasons address whether a non-publication order should be made consequent upon two applications filed by persons named in the Reasons for the primary Decision (‘the Original Reasons’), or upon the initiative of the Tribunal, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
  3. [3]
    For the reasons set out below, I conclude that:
    1. a non-publication order should be made by anonymising (de-identifying) the two persons who have filed an application for a non-publication order;
    2. of the Tribunal’s own initiative, various other persons named in the Reasons for the primary Decision (‘the Original Reasons’) should be anonymised;
    3. some information in the Original Reasons should be redacted to avoid identification of two of the persons anonymised;
    4. subject to further order of the Tribunal, a non-publication order should be made in respect of the contents of all documents or things filed in or produced to the Tribunal in the proceeding and evidence given before the Tribunal, including transcript evidence in the proceeding.
  4. [4]
    Redacted reasons (‘the Redacted Reasons’) have been prepared to give effect to these reasons. In these reasons, I adopt the same anonymised reference for persons previously named in the Original Reasons as are adopted in the Redacted Reasons.

Brief procedural background

  1. [5]
    On 18 January 2024, JCA filed an Application for miscellaneous matters (‘JCA application’). JCA sought a non-publication order in relation to the ‘Published Public Record’ of the primary Decision that would enable JCA to be identified. The basis for the JCA application is addressed below.
  2. [6]
    On 13 February 2024, JCB sent an email to the Tribunal requesting that the case ‘be taken down from google searches’.  On 16 February 2024, JCB filed an Application for miscellaneous matters (‘JCB application’), in which JCB sought a non-publication order. The basis for this application is addressed below.
  3. [7]
    At my direction, the Original Reasons were taken down from the Supreme Court Library website on 16 February 2024.
  4. [8]
    Before addressing the respective applications for non-publication orders, I will provide my reasons for:
    1. refusing the Applicant’s application to postpone his response to the applications by JCA and JCB until after the costs decision in the proceeding had been delivered;
    2. refusing the Applicant’s application to further extend the time for responding to the applications by JCA and JCB.

Refusal to extend time

  1. [9]
    With respect to the JCA application, I made directions (relevantly):
    1. on 14 February 2024, that:
      1. (i)
        JCA file written submissions by 4:00pm on 21 February 2024 (those submissions were filed on 16 February 2024);
      1. (ii)
        the Applicant (and the Respondents) file any written submissions upon which each seeks to rely in response by 4:00pm on 6 March 2024. The Applicant did not file any submissions by that date;
    2. on 8 March 2024, that the time for compliance with the direction referred to in subparagraph 9(a)(ii) above be extended to 4:00pm on 12 March 2024. The Applicant did not file any submissions by that date.
  2. [10]
    With respect to the JCB application, I made directions on 22 February 2024 (‘22 February directions’), that (relevantly):
    1. JCB file written submissions by 4:00pm on 27 February 2024 (on 22 February 2024, JCB sent an email to the Tribunal simply stating: ‘I dont [sic] understand - but it looks like it has come down on Google’);
    2. (if opposed) the Applicant (and the Respondents) file any written submissions setting out the grounds of opposition by 4:00pm on 5 March 2024. The Applicant did not file any submissions by that date.
  3. [11]
    On 4 March 2024, the time for compliance with the direction referred to in subparagraph 10(b) above was extended to 4pm on 12 March 2024.
  4. [12]
    On 12 March 2024, the Applicant filed two separate applications to extend time seeking to extend time for both the filing of his own application (if pursued) and his response to each of the JCA and JCB applications until the decision on costs in the proceeding was made.
  5. [13]
    On 15 March 2024, I directed (‘15 March directions’), relevantly, the respective applications to extend time of 12 March 2024 be refused and, in each case, the Applicant was given until 22 March 2024 to file his written submissions in response to each of the JCA and JCB applications. The Applicant did not file any submissions in response by that date.
  6. [14]
    On 2 April 2024, the Applicant sent an email to the Tribunal in the following terms (I have anonymised the names of the persons named in the email):

I made an application for extension of time to reply to the none [sic] publication applications of [JCA] and [JCB] and also to submit my own none [sic] publication applicant [sic].

My reasoning to request for an extension of time was that I can not submit my response to the application and my own application until I have received the judgement for the cost order. Depending on the judgement I can make a decision as to what to include in my responses and my application.

The respondents proposed a plan for the submissions documents, and the tribunal gave new directions however I can not respond to the applications and submit my response without the judgement for the cost order.

As per my application for the extension of time on the 15 March, I would like to wait until we receive the judgement for the cost order then submit a proposed plan for the applications.

  1. [15]
    The reference to ‘15 March’ appears to be an erroneous reference to the 12 March 2024 applications. The email does not reference the 15 March 2024 directions made by the Tribunal.
  2. [16]
    By directions dated 5 April 2024 (‘5 April directions’), I refused the Applicant any further extension of time to file submissions in response in respect of JCA and JCB (or any other students named in the Original Reasons) and that any submissions filed in this regard would not be considered by the Tribunal. However, I further extended the time for the Applicant to file any submissions or other material in support of any application for non-publication order by him.
  3. [17]
    With respect to the JCA and JCB applications, my reasons for refusing the extension for a response until after the costs decision was issued, and for refusing any further extension following non-compliance with the 15 March directions, are as follows:
    1. neither of the 12 March 2024 applications filed by the Applicant, nor the 2 April 2024 email from the Applicant, articulates, and I cannot identify, any relevant connection between the making of a costs order as between the parties to the proceeding on the one hand, and the filing by the Applicant of submissions in response on the other. JCA and JCB were not parties to the proceeding; they were not called as witnesses; and they did not provide affidavit or statement evidence of the purpose of the proceeding. In my view, whether a costs order was made against the Applicant or not, it was immaterial to the JCA and JCB applications;
    2. the Applicant’s wish to await the costs decision was the only stated basis for not complying with the previous directions in relation to the provision of his submissions in response;
    3. whilst the Tribunal must observe the rules of natural justice (s 28(3)(a) of the QCAT Act), I consider that, by 5 April 2024, the Applicant had been given more than a reasonable opportunity to provide his submissions in response to the JCA and JCB applications, and that no reasonable excuse existed for the failure to file submissions in response;
    4. the Tribunal is also required to, relevantly, act ‘with as much speed’ as the requirements of the QCAT Act, an enabling Act, or the rules, and a proper consideration of the matters before the Tribunal, permit (s 28(3)(d) of the QCAT Act). I consider that JCA and JCB are entitled to a decision on their applications with reasonable expedition;
    5. I am unable to identify any prejudice that would be suffered by the Applicant in refusing the respective extensions of time to file a response to the JCA and JCB applications.
  4. [18]
    I will now address the issue of non-publication.

The relevant statutory provisions

  1. [19]
    Section 66 of the QCAT Act provides:
  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;
  1. evidence given before the tribunal;
  1. 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
  1. to avoid endangering the physical or mental health or safety of a person; or
  1. to avoid offending public decency or morality; or
  1. to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  1. 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.
  1. The tribunal’s power to act under subsection (1) is exercisable only by—
  1. the tribunal as constituted for the proceeding; or
  1. if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.
  1. [20]
    I also note s 191 of the Anti-Discrimination Act 1991 (Qld) (‘the ADA’) which provides:
  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. Maximum penalty—100 penalty units.
  3. In this section, a reference to involvement in a proceeding under the Act includes—
    1. (a)
      making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
    1. (b)
      being a respondent to such a complaint; and
    1. (c)
      involvement in a prosecution for an offence against the Act; and
    1. (d)
      giving information or documents to a person who is performing a function under the Act; and
    1. (e)
      appearing as a witness in a proceeding under the Act.
  1. [21]
    Having regard to the reference in s 191(1) of the ADA to ‘a person who has been involved in a proceeding under the Act’ and the various categories of ‘involvement’ set out in s 191(3), I consider that s 191 does not apply to JCA or JCB (or any other student named in the Original Reasons). Those persons had no relevant involvement in the proceeding.

The relevant principles

  1. [22]
    Subject to statutory intervention, the principle of ‘open justice’ applies generally to proceedings before Courts and Tribunals in Australia. The basis of the principle of open justice was explained by Gibbs J (as his Honour then was) in Russell v Russell:[2]

It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v. Scott (36)). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.

(citation omitted)

  1. [23]
    This principle is ‘deeply entrenched in our law’ but it is not an absolute principle.[3]
  2. [24]
    As observed by Allsop CJ in Minister for Immigration and Border Protection v Egan:[4]

The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims. Nevertheless, an order restricting the ordinary open justice approach is not lightly made …

  1. [25]
    The interplay between s 66 of the QCAT Act and the open justice principle has been considered by the Tribunal.
  2. [26]
    As observed by Judge Dann, Deputy President, in YWG v Medical Board of Australia, in relation to s 66:[5]

This provision gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.

(citation omitted)

  1. [27]
    In Merlo v Queensland Law Society Inc (No 2),[6] Hon Peter Lyons KC, Judicial Member, observed:
    1. s 66 creates a discretionary power to authorise encroachments on the open justice principle (at [11]);
    2. the interests of justice ground itself creates a very broad discretion, and the inclusion of other specific grounds suggests an intention on the part of the legislature to have the discretion exercised more broadly and with some greater sensitivity than might occur in courts (at [13]);
    3. with respect to the ‘interests of justice’, in the exercise of the broad discretion to make a non-publication order, the starting point for consideration is s 90(1) of the QCAT Act, which gives effect to the ‘open court’ principle (at [27]).
  2. [28]
    In Cutbush v Team Maree Property Service (No 3),[7] Alan Wilson J, President, stated:

The phrase ‘in the interests of justice’ is not defined in the QCAT Act but generally confers a broad discretionary power on the decision-maker. The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers the order is necessary.

(citation omitted)

The factual matrix of the primary Decision

  1. [29]
    As addressed in the Redacted Reasons, the complaint made by the Applicant under the ADA involved, relevantly for present purposes, an alleged failure to investigate (or properly investigate) complaints made by the Applicant concerning the conduct of other students in relation to rumours that were said to be circulating about the Applicant, and his subsequent suspension while studying his medical degree, and later exclusion from the University.
  2. [30]
    The Applicant’s case in relation to both direct discrimination and indirect discrimination claimed discrimination on the basis of the attributes of race (specifically Middle Eastern ethnicity or descent) and religious belief or religious activity (specifically that the Applicant was a Muslim). The theme of the Applicant’s case theory in this regard relied primarily (but not exclusively) upon the relationship between Professor Murray and the Jewish community, in particular the Deputy Vice Chancellor of Medicine at the University (and his wife). Further, issues involving the Applicant’s conduct and his correspondence with the First Respondent referenced a number of students said to be Jewish and asserted that there were arguments between a (named) Jewish student and Muslim students (two of whom he named) concerning Palestine and Israel.
  3. [31]
    The Applicant was wholly unsuccessful in the claims he brought against each of the Respondents.

JCA application

  1. [32]
    JCA seeks an order prohibiting the publication of the following material in the proceeding:
    1. any information which may enable JCA to be identified (including, but not limited to, the name of JCA);
    2. the content of any document produced or provided to the Tribunal which contains any correspondence involving JCA (including correspondence written by, addressed to, or in relation to, JCA;
    3. any evidence given to the Tribunal in relation to the above matters.
  2. [33]
    The Respondents do not oppose the making of such an order.
  3. [34]
    JCA has provided comprehensive written submissions in support of the application.
  4. [35]
    Without reciting all of the submissions, I consider the substance of the matters relied upon by JCA to be as follows:
    1. JCA is a practising medical practitioner;
    2. until the published primary Decision was brought to the attention of JCA by a university friend, JCA was not aware that there was an active case in the Tribunal;
    3. JCA was not a witness or party to the case, nor was JCA approached for consent to provide evidence or information for the case;
    4. JCA was distraught that JCA’s name and confidential material was readily publicly available, and that numerous university colleagues had alerted JCA to the existence of the primary Decision;
    5. at a factual level, JCA was not ‘privy to knowledge of any rumour’ (I interpolate, in relation to the Applicant) and JCA was not part of any rumour;
    6. JCA was ‘mercilessly attacked’ by an unknown ‘internet assailant’ as evidenced by an email of 23 June 2017 (Redacted Reasons [70]) and JCA approached ‘University support’ to express his concern, seek counsel, and to report these encounters ‘officially’. This caused JCA ‘extreme turbulence’, fear for his ‘physical safety’, and concerns that the false content of this denigrating attack would extend to the public domain;
    7. the last correspondence JCA had with the First Respondent regarding the matter was that information involving him would not be used and confidentiality would be maintained. In 2018, JCA received information about a workplace investigation by the First Respondent taking place, and JCA was asked if his emails could be used, and JCA ‘clearly requested’ that all identifiable materials were not to be used, confidentiality was to be maintained, and that his identity was to be ‘protected’. JCA requested this out of genuine fear of what could ensue if the identity of JCA was shared, and the information made publicly available. The specific concerns were:
      1. (i)
        JCA feared that breach of confidentiality would make him vulnerable to confrontation by any persons mentioned in the correspondence;
      1. (ii)
        JCA feared that sharing of the private emails would make him vulnerable to another attack by the ‘Internet assailant’;
      1. (iii)
        JCA feared the toll that this would take on his health;
      1. (iv)
        JCA feared the possible physical, verbal, digital, and emotional attack that could ensue from the sensitive and confidential material being publicly available;
      1. (v)
        JCA feared the repercussions from being involved (even if indirectly) in a ‘turbulent legal case/investigation’ could have on his career as a junior doctor as he did not want to be associated with the numerous harmful and pervasive ‘themes’ inherent in the case;
    8. the above matters lay the foundation for the current fear by JCA of physical, verbal, mental and emotional threat that might ensue from having the information concerning JCA and his identity publicly available, and JCA describes himself as being put in a ‘perpetually vulnerable position’;
    9. JCA states that, since discovering the published primary Decision, he has suffered extreme anxiety with insomnia, and an inability to concentrate in his work, and it has hindered his ability to participate in relationships. JCA fears that his personal life could be targeted, and that his safety and that of his family and friends could be compromised. JCA states that since discovering the primary Decision, he has experienced constant fear and anxiety, and this has impacted him in both his social interactions and vocational responsibilities, and he has sought medical attention for this;
    10. JCA states that in his role as a medical practitioner he cares for a ‘diverse patient population’ and that the publication of his name and confidential material, which associates him with ‘very complex and turbulent themes explored in the Decision’ could significantly impact his ability to care for patients from certain communities because the information may be perceived out of context, and this could detract from the doctor-patient relationship. JCA considers that this poses a significant risk to disenfranchising him from communities that he routinely cares for. JCA contends that this would be contrary to the public interest;
    11. JCA is concerned that the relevant information could be interpreted without appreciation for the ‘complex context’, and this could impact his future vocational prospects with employers. JCA is concerned that the material contained in the relevant email could impact him personally, socially, and vocationally;
    12. JCA also fears retaliation from other persons mentioned in the correspondence, in particular one named person who now holds what is said to be a ‘very respectable position within our society’; and the content of the email, which is ‘out-of-context’, could ‘elicit negative retaliation’ and this creates ‘a state of perpetual vulnerability’ which is said to severely impact the mental health of JCA. JCA submits that that this has the potential to negatively impact other members of the public;
    13. finally, JCA submits that the parties to the proceeding will suffer no prejudice if the identifiable information in relation to JCA is not published.
  5. [36]
    With respect to the asserted significant risk to JCA being disenfranchised from communities that he routinely cares for, the submissions and material of JCA do not, in my view, establish a connection between the matters involving JCA as identified in the Original Reasons and the risk of disenfranchisement from some patients.
  6. [37]
    Otherwise, for the following reasons, I am satisfied that a non-publication order should be made, insofar as JCA is concerned, because it is necessary to avoid endangering the physical or mental health or safety of JCA and, further, it is necessary to meet the interests of justice.
  7. [38]
    First, I accept that JCA has a genuine fear for his safety if his identity is made known in published Reasons. This is supported by email correspondence between himself and the First Respondent in December 2018 (see the affidavit of JCA filed in support of his application).
  8. [39]
    Second, JCA has referred to the impact on his physical and mental health both at the time of the initial email and upon becoming aware of the details of same forming part of the Original Reasons. I have no reason to doubt the genuineness of the stated impact.
  9. [40]
    Third, whilst the complaint made by JCA was one of the relevant facts in the proceeding, JCA did not provide an affidavit or statement and was not called as a witness in the proceeding. I consider this to be material in weighing up the competing consideration of the open justice principle. In this context, I also note the evidence of his request to the First Respondent that his participation in investigation that was conducted by the First Respondent would remain anonymous and his identity ‘remain guarded, confidential and not shared with other participants of the investigation’ (including the Applicant).
  10. [41]
    Fourth, I accept the argument that there is some prospect that the disclosure of the identity of JCA may impact his vocational prospects with employers. Again, JCA expressed contemporaneous concern about possible consequences of his involvement in the investigation in 2018 ‘beyond university life’ including his career and reputation.
  11. [42]
    Fifth, I accept the submission that the anonymisation of JCA in the published Reasons would not cause any prejudice to the Applicant or the Respondents. To the extent that the Applicant may be concerned that any such order would have some impact on a subsequent challenge to the primary Decision, I do not consider it would have any impact on same. To avoid any doubt, I consider it appropriate that the non-publication order should not extend to the Appeal Tribunal or to the Queensland Court of Appeal as provided for in Order 2.
  12. [43]
    In order to reduce the risk of identification of JCA, I consider that, in addition to anonymisation, it is appropriate to:
    1. anonymise the names of some other students referenced in the Reasons mentioned in connection with JCA (this is addressed below)
    2. redact some information contained in the Original Reasons to avoid the risk of identification of JCA (see Redacted Reasons [70], [86]).

JCB application

  1. [44]
    I infer from the application of JCB that JCB is a practising medical practitioner. The basis of the JCB application is that it had been noted to him by ‘patients’ that he was ‘brought up’ in this case. JCB states that he is Jewish and that in ‘the current climate’ he does not wish for the primary Decision to be available ‘on Google’ and he states that he would consider this to be ‘doxxing’. JCB does not articulate the specific meaning he gives to that term (also known as ‘doxing’), but I am content to proceed on the basis that it is referring generally to the online publication of an individual’s identity, private information or personal details without their consent.
  2. [45]
    In my view, the naming of JCB (and some other students), in the context of some of the content recorded in the Original Reasons, has become problematical in light of the conflict that has flared in the Middle East commencing on 7 October 2023 and which presently continues. I take notice of the consequential tensions that this conflict has generated in various parts of the world including, relevantly for present purposes, Australia. In these fraught circumstances, I accept that the naming of various persons, in a publicly available document, has the potential for adverse ramifications, including ‘doxing’, particularly having regard to the prevalence of social media. In considering the issue of non-publication, I note the particular nature of the Applicant’s allegations, including specific assertions made by him in respect of various named persons, and the timing of the publication of the reasons in the context of the world events identified above. I also note that none of the named students the subject of these reasons was called as a witness in the proceeding. None of them provided an affidavit or a statement for use in the proceeding.
  3. [46]
    There is no doubt that the interaction between the Applicant and JCB was a material aspect of the case (see, for example, Redacted Reasons [304]). The Original Reasons did not include any particular information about JCB which I consider would, ordinarily, warrant the making of a non-publication order. However, in the circumstances identified in paragraph [45] above (‘the Circumstances’), I consider that it is necessary that a non-publication order should be made in respect of JCB in the interests of justice. The material included the identification of JCB as being Jewish (Redacted Reasons [163]). I note the nature of the alleged exchange between JCB and the Applicant (Redacted Reasons [88]). There is also what could be perceived to be a connection between JCB and another student, also identified as a Jewish student, who the Applicant asserted, in correspondence, ‘had arguments with Muslim students about the issue of Palestine and Israel’ (Redacted Reasons [88], [163]). I am satisfied that these matters, in the Circumstances, justify the anonymisation of JCB in the Redacted Reasons.

Other named students

  1. [47]
    In the Original Reasons, various other students then studying at the University were named, including in correspondence between the Applicant and the First Respondent.
  2. [48]
    For the following reasons, I consider that the Tribunal should, of its own initiative (pursuant to 66(3) of the QCAT), anonymise the names of the following persons.
  3. [49]
    JCC was identified as a Jewish student, and it was asserted by the Applicant in correspondence that he had arguments with Muslim students about the issue of Palestine and Israel and called many of the Muslim students ‘anti Semites’ (Redacted Reasons [163]; see also [58]). In my view, identification of JCC may have adverse ramifications for him in the Circumstances. Further, in the context of Redacted Reasons [163], I consider that there is some prospect that the identification of JCC may result in the identification of JCA. In my view, the anonymisation of JCC in the Redacted Reasons is necessary in the interests of justice.
  4. [50]
    JCD was identified, along with JCA, by the Applicant as having been involved in the arguments with JCC (Redacted Reasons [163]). I consider that there is some prospect that the identification of JCD may result in the identification of each of JCA and JCC, and that it is in the interests of justice that JCD not be identified.
  5. [51]
    JCE was the subject of adverse commentary by JCA in correspondence (Redacted Reasons [70]), and JCE is the subject of the submissions of JCA set out at paragraph [35(l)] above. The Applicant asserted that JCE was involved in spreading rumours about him (Redacted Reasons [71], [87]). JCE also complained to the First Respondent in relation to an alleged interaction with the Applicant (Redacted Reasons [177]; see also the Applicant’s response at [185], [199]). As with JCA, JCB and JCC, I consider that identification of JCE has the real potential for adverse ramifications for him in the Circumstances, including an impact on him in his professional capacity. It is in the interests of justice that JCE not be identified.
  6. [52]
    JCF was a student who raised the conduct of the Applicant with the First Respondent asserting that the Applicant had approached him and accused him and other unnamed students of making the statements at Redacted Reasons [199]. There is also a prospect that the identity of JCA could be revealed having regard to the various references to JCA and JCF in the Original Reasons. In the Circumstances, I consider that it is necessary in the interests of justice that the name of JCF be anonymised.
  7. [53]
    JCG was the subject of various material before the Tribunal. The content of a Facebook post (Redacted Reasons [173]) drafted by the Applicant (which he denied physically posting), which was demeaning of JCG, was a matter of significance in the case. Of particular relevance in the present context are the assertions made in a response to the First Respondent by the Applicant (Redacted Reasons [163]), that JCG was a supporter of far right Christian groups, was friends with Jewish students, had extreme religious views (and ‘radical and extremist views’), and had previously expressed dislike towards minority groups who were not Christian, in particular Muslim[s], and did not want Muslim migration  to Australia as JCG believed it was bad for the Christian majority. The truth or otherwise of these assertions was not an issue in the proceeding. JCG had no opportunity to challenge those assertions. I consider that the identification of JCG may have adverse ramifications for JCG in the Circumstances. I consider that it is necessary in the interests of justice that the name of JCG be anonymised and that certain information concerning JCG be redacted (see Redacted Reasons [163], [177], [184], [197]) to avoid the risk of identification as a result of the use of that information.
  8. [54]
    In referring to JCG, the Applicant also named JCH (albeit by only her first name), stating that they were two students ‘who had very extreme right wing views’ (Redacted Reasons [199]). I consider that there is both a risk of adverse ramifications to JCH, and the risk of identification of JCG, if JCH is named, and that it is necessary in the interests of justice that the name of JCH be anonymised.
  9. [55]
    With respect to JCI, JCJ and JCK, each was identified by the Applicant as Jewish and was also named in connection with JCB and JCC (Reasons [88]). I consider that there is both a risk of adverse ramifications to JCI, JCJ and JCK, and the risk of identification of JCB and JCC, if they are named, and it is necessary in the interests of justice that their names be anonymised.
  10. [56]
    JCL was asserted by the Applicant, together with JCF, as being involved in rumours as referred to in the Redacted Reasons [53], [57]). As with JCF, I consider that, in the Circumstances, it is necessary in the interests of justice the name of JCL be anonymised.
  11. [57]
    JCM provided a report in respect of the Applicant (Reasons [119]). In correspondence, the Applicant asserted that JCM ‘seemed angry that the Applicant was mentioning Jewish students’ because she was close friends with one of the Jewish students (being JCI) and it was further asserted by the Applicant that JCM mentioned that the Applicant would take ‘drastic measures’ against his peers which was ‘a lie’ (Reasons [163]). I consider that there is a risk of adverse ramifications to JCM if JCM is named, and it is necessary in the interests of justice that the name of JCM be anonymised.
  12. [58]
    I find that the anonymisation of each of the above persons would not cause any prejudice to the Applicant or the Respondents.
  13. [59]
    Given the extent of the material filed in the proceeding relevant to each of the persons the subject of the non-publication order, I consider that, subject to further order of the Tribunal, the non-publication order should be made in respect of the contents of all documents or things filed in or produced to the Tribunal in the proceeding and evidence given before the Tribunal, including transcript evidence in the proceeding.

Applicant’s position

  1. [60]
    By the 22 February directions:
    1. I directed that, by 4.00pm on 5 March 2024, the Respondents give written notice of whether any of them seeks to make a further application for a non-publication order (including in respect of the persons called as a witness at the hearing) and, if so, to file written submissions and any evidence relied upon (with the submissions to include the grounds relied upon in subsection 66(2)(a) to (e) of the QCAT Act and the power of the Tribunal to make such an order having regard to previous Directions of the Tribunal dismissing an application by the Respondents for a non-publication order);
    2. I directed (by Direction 4(b)) that the Applicant file, and give to the solicitors for the Respondents, a copy of written notice as to whether he seeks to make a further application for a non-publication order and, if so, to file and give to the solicitors for the Respondents, written submissions and any evidence upon which he seeks to rely in support of the application, with the submissions to include (without limitation) the grounds set out in subsections 66(2)(a) to (e) of the QCAT Act upon which he relies (and any submissions he may wish to make in relation to the matters set out in Direction 5(b)(ii)). The Applicant was required to comply with this Direction by 4.00pm on 5 March 2024. No material was filed by the Applicant by that date.
  2. [61]
    At a directions hearing held on 4 March 2024, Ms Kavanagh for the Respondents indicated that the Respondents:
    1. did not oppose the applications of JCA and JCB;
    2. did not wish to make a further application for a non-publication order but did wish to have the opportunity to respond to any submissions by the Applicant in support of any application by him.
  3. [62]
    By directions made on 4 March 2024, I extended the time for compliance by the Applicant to give written notice of any further application for a non-publication order and to file written submissions and any evidence, until 4.00pm on 12 March 2024.
  4. [63]
    On 12 March 2024, the Applicant filed the applications referred to at paragraph 12 above.
  5. [64]
    By the 15 March directions, I extended the time for compliance by the Applicant to give written notice of any further application for a non-publication order and to file written submissions and any evidence, until 4.00pm on 22 March 2024. No material was filed by the Applicant by that date.
  6. [65]
    By the 5 April directions, I directed (by Direction 2) that the time for the Applicant to comply with Direction 4(b) of the 22 February directions (concerning any further application for a non-publication order by him) was further extended to 4.00pm on 12 April 2024 and that any submissions or other material filed by the Applicant after that time in respect of Direction 4(b) would not be considered by the Tribunal.
  7. [66]
    On 10 April 2024, the Applicant sent an email to the Tribunal stating, relevantly, that he would be submitting his documents regarding the non-publication order by ‘latest 9am tomorrow morning’. Taken at face value, that email conveyed that the Applicant had the ability to finalise his documents by that time and the intention to do so. The Applicant did not do so.
  8. [67]
    On 12 April 2024, at approximately 3.45pm (approximately 15 minutes before the extended time for compliance) the Applicant sent a further email to the Tribunal stating:

I was under the impression that i [sic] would be getting a cost order hence there won't be any need for applying for a non-publication order. 

I became aware of the directions around 9th of April as I have been busy with cultural and religious events of Ramadan and Eid. The direction states that I have to submit my documents by 4pm 12th of April. This comes during Eid celebrations.  

Despite my responsibilities due to Eid and Ramadan, I started working on the documents on the night of Tuesday and Wednesday. However there are alot of documents to be referenced and due to Eid as we currently have guests I do not think I can finish the document by 4pm today. I have worked on the documents for the past few days.  

I would like to request the tribunal until 15th April 9am to submit my documents. I do not mind if the respondent take [sic] a couple of more days to submit their documents. I apologise for the inconvenience this may have caused. 

  1. [68]
    The Applicant did not file an Application for miscellaneous matters to extend time.
  2. [69]
    On 15 April 2024, at approximately 8.33am, the Applicant sent a further email to the Tribunal stating, relevantly, that he was still working on the documents and that the documents ‘should be finished by tonight’. The Applicant also stated: ‘I assure the tribunal that the documents are not yet with the media hence it wont [sic] effect [sic] the respondents.’ With respect, I am at a loss to understand what the Applicant was endeavouring to convey by this sentence.
  3. [70]
    No documents were filed by the Applicant subsequently on 15 April 2024 (which was one day short of six weeks after the Applicant’s material was first required to be filed).
  4. [71]
    On 19 April 2024 (at approximately 8.45am), at a time when a draft of these reasons was largely complete, the Applicant sent yet another email stating, amongst other things: ‘I will be sending my documents regarding the none [sic] publications orders with the reasons as to why it was delayed today.’ This email was sent (as were the earlier emails referred to in paragraphs [67] and [69] above) in the face of the 5 April directions which made clear the consequence of his non-compliance with Direction 2. Each of the emails was sent against the background that, on 10 April 2024, he stated that he would be submitting his documents regarding the non-publication order by, at the latest, 9am on 11 April 2024.
  5. [72]
    In my view, the Applicant is not entitled to any further extension of time. The Applicant chose not to comply with the Tribunal’s directions, seemingly on the basis of an assumption that there would be a costs order against him, notwithstanding that his submissions on costs urged that he should not be ordered to pay costs. Consistently with my observations above concerning the Applicant’s response to the JCA and JCB applications, I cannot discern any relevant connection between whether (or not) a costs order was made against the Applicant and the making of submissions by him in support of a non-publication order. As it transpired, the costs decision was issued on 3 April 2024.
  6. [73]
    Notwithstanding the Applicant’s non-compliance with previous directions, he was granted a further (final) indulgence requiring him to comply with Direction 4(b) of the Tribunal’s directions dated 22 February 2024, by 4.00pm on 12 April 2024. The Applicant failed to comply with this direction. The assertion by the Applicant that he was busy with cultural and religious events does not assist the Applicant. The Applicant had ample prior opportunity to comply with Direction 4(b). Having regard to the circumstances set out in paragraphs [59] to [69] above, I infer that the Applicant proceeded on the basis that he would comply with Direction 4(b) when it suited him, rather than ensuring that he complied with the Tribunal’s (respective) directions. I find that the Applicant did not have a reasonable excuse for his non-compliance with the Tribunal’s directions. I also note that to grant a further extension would have added to the delay in issuing this decision.
  7. [74]
    Despite the absence of a formal application to extend time, for the sake of clarity, I will make an order that the Applicant is refused any further extension of time to comply with Direction 4(b) of the Tribunal’s directions dated 22 February 2024. Direction 2 of the 5 April directions has taken effect. The Applicant remains bound by the Amended Order of the Tribunal dated 25 August 2022, dismissing the Applicant’s Application for miscellaneous matters (for a non-publication order) filed 20 July 2021 (the previous order).
  8. [75]
    By way of postscript, I note that the Applicant sent a further email to the Tribunal at approximately 8.15am on 22 April 2024 in the following terms:

I have finished most of documents, I am unsure as to how certain aspects of this case or any future cases could be affected by a non publication order. I am seeking legal advice regarding certain aspects of the document. I will submit the document once I receive a response from the pro bono lawyers. 

  1. [76]
    The content of this email reinforces the conclusion I expressed in paragraph [73] above.
  2. [77]
    For completeness, had I granted the Applicant a further extension of time, it would have been necessary for the Applicant to overcome the following obstacles in support of any further application for a non-publication order:
    1. first, the Applicant litigated his complaint to a final decision, and in my view the open justice principle has greater force in relation to him than it does to the above students who had no active involvement in the proceeding;
    2. second, the Applicant did not seek leave to appeal the previous order and he would have needed to persuade the Tribunal that it had power to make a non-publication order in the face of the previous order and, if so, that an order should be made in relation to the Applicant in the relevant circumstances. One relevant circumstance would have been that the Respondents do not wish to make any further application for a non-publication order.

Orders

  1. [78]
    For the reasons set out above, I order that:
    1. Subject to Order 2, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of the following, other than to the parties to the proceeding (including legal representatives acting on their behalf), is prohibited without further order of the Tribunal:
  1. the original (unredacted) Reasons for Decision issued in this proceeding on 8 December 2023 (the Original Reasons);
  2. the names of those persons named in the Original Reasons who are anonymised in the redacted version of the Reasons for Decision referred to in Order 3 (Redacted Reasons);
  3. all of the information contained in the Original Reasons which has been redacted in the Redacted Reasons;
  4. the contents of all documents or things filed in or produced to the Tribunal in the proceeding;
  5. evidence given before the Tribunal, including transcript evidence in the proceeding.
    1. Each of the parties to the proceeding is permitted to publish, solely for the purpose of any application for leave to appeal or appeal to the Appeal Tribunal, or any application for leave to appeal to the Queensland Court of Appeal, the Original Reasons and the names, information, documents, things, and evidence referred to in Order 1.
    2. The Redacted Reasons have been prepared to give effect to these Reasons for Decision (concerning the issue of non-publication) and, subject to any further order, the Redacted Reasons may be published on the Queensland Supreme Court Library website, following the expiry of 14 days after the issue of this Decision.
    3. The Applicant is refused any further extension of time to comply with Direction 4(b) of the Tribunal’s directions dated 22 February 2024.

Footnotes

[1]A decision on costs (the costs decision) was issued by the Tribunal on 3 April 2024.

[2](1976) 134 CLR 495, 520.

[3]Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422, [114].

[4][2018] FCA 1320, [4].

[5][2023] QCAT 93, [10].

[6][2023] QCAT 459.

[7][2010] QCATA 89, [7], cited in Merlo at [24].

Close

Editorial Notes

  • Published Case Name:

    JCN v James Cook University & Ors No 3

  • Shortened Case Name:

    JCN v James Cook University & Ors No 3

  • MNC:

    [2024] QCAT 258

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    24 Apr 2024

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
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
2 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
Merlo v Queensland Law Society Inc (No 2) [2023] QCAT 459
2 citations
Jump To
Cite 1 - [2023] QCAT 459
Cite 2 - [2023] QCAT 459
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
2 citations
Jump To
Cite 1 - [2018] FCA 1320
Cite 2 - [2018] FCA 1320
Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422
2 citations
Jump To
Cite 1 - (2005) 214 ALR 422
Cite 2 - (2005) 214 ALR 422
Russell -v- Russell (1976) 134 CLR 495
2 citations
Jump To
Cite 1 - (1976) 134 CLR 495
Cite 2 - (1976) 134 CLR 495
YWG v Medical Board of Australia [2023] QCAT 93
2 citations
Jump To
Cite 1 - [2023] QCAT 93
Cite 2 - [2023] QCAT 93

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.