JCN v James Cook University & Ors No 4
[2024] QCAT 259
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- Unreported Judgment
- JCN v James Cook University & Ors No 4[2024] QCAT 259
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JCN v James Cook University & Ors No 4[2024] QCAT 259
JCN v James Cook University & Ors No 4[2024] QCAT 259
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | JCN v James Cook University & Ors No 4 [2024] QCAT 259 |
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: | 10 June 2024 |
HEARING DATES: | 4 June 2024 |
HEARD AT: | Brisbane |
DECISION OF: | A/Member Lumb |
ORDERS: |
|
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 Tribunal made non-publication orders anonymising various persons named in the original reasons – whether name of applicant should be anonymised under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where respondents apply for non-publication of all previous reasons published in the proceeding Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Anti-Discrimination Act 1991 (Qld), s 191 Medical Board of Australia v Zimmermann (No 2) [2023] QCAT 300 YWG v Medical Board of Australia [2023] QCAT 93. |
APPERANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondents: | Ms M. Kavanagh of Colin Biggers & Paisley Lawyers |
REASONS FOR DECISION
Introduction
- [1]On 24 April 2024, I made a decision which, in summary:
- anonymised, in the original reasons made in this proceeding on 8 December 2023 (‘the original reasons’), the name of each of the two applicants who had made an application for a non-publication order, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’);
- anonymised various other persons named in the original reasons of the Tribunal’s own initiative pursuant to s 66(3) of the QCAT Act;
- made provision for redacted reasons to give effect to the above orders;
- refused leave to extend time to the Applicant to comply with a previous direction made on 22 February 2024 in respect of an application for a non-publication order by the Applicant;
- ordered that, subject to any further order, the redacted reasons may be published on the Queensland Supreme Court Library website, following the expiry 14 days after the issue of the Decision.
- [2]Within that 14 day period, the Applicant sent an email to the Tribunal on 29 April 2024 (‘the 29 April email’), raising, amongst other matters, a request that the Applicant’s name not be published and referring to his previous application for a non-publication order.
- [3]Subsequent to a directions hearing on 20 May 2024, the Respondents filed an Application for miscellaneous matters on 27 May 2024 (‘the Respondents’ NPO application’) seeking an order for non-publication of the decisions and reasons of the Tribunal of 8 December 2023, 2 April 2024, and 24 April 2024 respectively.
- [4]I will address the position in relation to the Applicant and the Respondents separately. I refer to, but do not propose to repeat, the relevant provisions and principles addressed in the reasons of 24 April 2024.
Anonymisation of the Applicant’s name
- [5]By way of brief background, as noted above, the Applicant was refused an extension of time due to his failure to comply with directions of the Tribunal. It appears that the Applicant emailed to the Tribunal, amongst other documents, an application for a non-publication order and submissions in support (‘the Applicant’s NPO submissions’), approximately 21 minutes prior to the decision and reasons being emailed by the Tribunal to the parties on 24 April 2024.
- [6]I am satisfied that the Tribunal has power to deal with the matters raised in the Applicant’s email having regard to the provision for the making of a further order in Order 3 of the 24 April 2024 orders. I also note that part of the relief sought by the Applicant in an application for miscellaneous matters filed on 16 February 2024 had not been dealt with by the Tribunal.
- [7]I also consider that, even if a proceeding is no longer on foot, the Tribunal has power to make a non-publication order of its own initiative pursuant to subsection 66(3) of the QCAT Act. In YWG v Medical Board of Australia,[1] Judge Dann, Deputy President, decided that the Tribunal could act on its own initiative in circumstances where an applicant who had applied for a non-publication order was not entitled to do so because the applicant was no longer a party to the proceeding.[2] The Deputy President confirmed that position in a subsequent decision of Medical Board of Australia v Zimmermann (No 2).[3] I respectfully adopt the observations of the Deputy President in this context in each case.
- [8]I also note that the Tribunal previously refused, in 2022, an application by the Applicant for a non-publication order and a closed hearing.[4] In my view, the previous order does not preclude the making of an order now. First, the previous order was made on the application of the Applicant and, in my view, s 66(3) of the QCAT Act provides a separate power to the Tribunal to make an order of its own initiative. Second, I consider that the circumstances in which the previous order was made bear no resemblance to the current circumstances addressed in the Reasons of 24 April 2024. This factual context is, in my view, central to both the 24 April 2024 decision and this decision. Third, the basis for the order to be made includes a consideration of the interests of third parties, namely the Applicant’s family.
- [9]In my view, it is necessary that a non-publication order, in the form of anonymising the Applicant, be made pursuant to s 66(3) of the QCAT Act.
- [10]The basis upon which I consider such an order to be warranted is in relation to the alleged rumours concerning the Applicant being or looking like a terrorist and being a member of, or wanting to join, ISIS: see, for example, Anonymised Original Reasons, [53], [54], [107]. Further, in a witness statement which formed part of the Applicant’s evidence, the witness stated that the rumours he heard linked the Applicant and his family to terrorism, and that the Applicant’s terrorist associations were linked to ISIS ([212]). I also consider that the Applicant’s assertions in respect of JCG (Anonymised Original Reasons, [163]) increase the risk of adverse attention from members of the public.[5]
- [11]Since the Redacted Reasons were prepared, my impression of the tensions within Australia arising out of the events in the Middle East is that they seem no less fractious, perhaps more so. In my view, the publication of the matters referred to in paragraph [10] above carries with it a risk of adverse repercussions, by way of social media and perhaps directly, for the Applicant and, potentially, his family in the current geopolitical climate. Whilst it is difficult to gauge the precise risk based on the current material, given the problematic content of the material, I consider that it is in the interests of justice to make the order.
- [12]For completeness, I note that the Respondents do not oppose the making of an order anonymising the Applicant.
- [13]I consider that the name of the Applicant should be anonymised pursuant to s 66 of the QCAT Act. This will require anonymisation of the Applicant by way of a pseudonym in these reasons and each of the previous reasons. To ensure the anonymisation, the orders will encompass all documents or things filed in or produced to the Tribunal in the proceeding, and evidence given before the Tribunal, since 23 April 2024. In Order 5, I have provided a carve out of the non-publication orders in respect of any applications for leave to appeal to the Appeal Tribunal and to the Queensland Court of Appeal[6].
Respondents’ NPO application
- [14]The Tribunal’s 22 February directions provided for the filing of any application for non-publication order by the Applicant and the Respondents. At a directions hearing held on 4 March 2024, Ms Kavanagh for the Respondents indicated that the Respondents would not be filing an application.
- [15]At the directions hearing held on 20 May 2024, Ms Kavanagh advised that the Respondents wished to consider their position in relation to a non-publication order, and the Tribunal made a direction that the Respondents advise whether the Respondents or any other person named in the original reasons wished to seek a non-publication order and, if so, to file supporting material.
- [16]In support of the Respondents’ NPO application, the Respondent’s filed an affidavit of Shaun Steffensen dated 24 May 2024 and written submissions. Having regard to that material and to the oral submissions of Ms Kavanagh on 4 June 2024, it appears that the Respondents’ change of position in relation to a non-publication order is based on the content of the Applicant’s NPO submissions and subsequent email correspondence from the Applicant to the Tribunal.
- [17]The Respondents submit that an order for non-publication should be made because it is necessary:
- to avoid endangering the physical or mental health or safety of the Respondents (and other persons named by the Applicant) (s 66(2)(a));
- in the interests of justice (s 66(2)(e)).
- [18]The Respondents also rely upon s 191 of the Anti-Discrimination Act 1991 (Qld) (‘the ADA’).
- [19]I consider that the Respondents’ arguments for the making of the non-publication order can be summarised as follows:
- that the Applicant refuses to accept the outcome of the proceeding and makes ‘baseless and defamatory allegations’ that persons involved in the case had provided ‘fake reports’ and that the ‘real dishonest people’ have never been investigated, which allegations have the potential to cause serious distress to the named individuals and greatly diminish the reputation of the University;[7]
- that the Applicant has expressed a clear intention to rely upon the Applicant’s complaints the subject of the original decision to get the media to investigate the matter and to seek help from the community regarding the case and it is contended that ‘there is every risk that [the Applicant] may persuade others, similarly prone to conspiratorial thinking, to reject it also and, further, that the Applicant may seek to use the decisions to ‘legitimise himself amongst sympathisers as a crusader and martyr against the so-called ‘merciless’ and ‘powerful’ Zionists’;[8]
- that the Applicant has made a number of anti-Semitic submissions to the Tribunal and that in the current geopolitical climate, these claims could be used to incite discrimination, abuse and even physical violence against the named staff and students posing a serious risk to their well-being and safety (and that non-publication of the decisions in their entirety is the only way to afford ‘an appropriate measure of security, peace, and finality to the Respondents and other individuals persecuted by the Applicant, who threatened to prosecute this claim indefinitely until all demands are met’).[9]
- [20]With respect to the Applicant’s submissions alleged by the Respondents to be anti-Semitic, they appear at paragraph 7 of the Applicant’s NPO submissions, and include the following:
Zionist extremist Jews are racist and supremacist people. Recent events between Palestine and Israel have shown to the world that they are vicious and merciless. If one person has any issues with the Jews they blame their entire race or community that the person belong [sic] to. Now this might not be true of every Jew but the politically active Jews (Zionist) which makes [sic] up to 93% of the Jewish population are full of hate particularly towards Muslims. Hence they do not apologise for any of their mistakes as they view someone like myself as an enemy. Zionist Jews are ultra extremist nationalist Jews and they have a powerful lobby in Australia and connections with the government organisations. Hence Zionists such as [JCC] have the resources and connections to get away with wrong doings and extreme racism through the Zionist lobby…
- [21]With respect to the Respondents’ submissions concerning the Applicant prosecuting his claim indefinitely ‘until all demands are met’, in an email sent by the Applicant to the Tribunal on 3 June 2024 at 10.03am, the Applicant stated, amongst other things:
If JCU wants this case removed, if they want to save the reputation of their staff members there is a very easy solution, if JCU is serious about resolving this issue I give them 3 options.
Option 1:
- –Reinstatement into Cairns medical school
- –JCU to pay my lost wages since 2013 which amounts to $100,000 a year which would be 1.1million with interest
- –JCU to pay my fees to study Bachelor of Medicine until I finish my degree
Option 2:
- –JCU to organise my guaranteed transfer to another university (public or private or even international) and pay my full fees to that university (including letters of recommendation, fees)
- –JCU to pay my lost wages since 2013 which amounts to $100,000 a year which would be 1.1million with interest
Option 3:
- –JCU to help me reenrol [sic] into another university into bachelor of medicine and pay my full fees into that university
- –JCU to pay my lost wages since 2013 which amounts to $100,000 a year which would be 1.1million with interest
In return I will agree that the Tribunal remove the case in its entirety, and I will sign a confidentiality agreement with no derogatory clause and I will also sign any deeds or documents which would prevent me from criticising JCU or its staff …
- [22]The Applicant was unsuccessful in the claims he brought against each of the Respondents. I consider it clear from the material that the Applicant refuses to accept the correctness of the original decision, yet, as at 4 June 2024 (almost six months after the original decision), the Applicant had not filed an application for leave to appeal or appeal. Nevertheless, at the directions hearing on 4 June 2024, the Applicant advised the Tribunal that he still intended to file such an application. Plainly an extension of time would be needed from the Appeal Tribunal. Despite the stated intention, I accept that the Applicant’s submissions and correspondence convey that the Applicant intends to publicly agitate the matter (including in the media) unless the First Respondent agrees to his stated terms. I reject the Applicant’s contention that the current position is, in effect, attributable to the Respondents’ refusal to negotiate with the Applicant. This submission is without substance. The costs reasons refer to offers to settle made by the Respondents. The Applicant’s ‘options’ for resolving the current issue are, in my view, unjustified ambit claims, particularly considering that the Applicant’s complaint was dismissed, and the Applicant is months out of time for filing an application for leave to appeal or appeal.
- [23]As to the statements referred to in paragraph [20] above, while I find it unnecessary to characterise the statements in terms such as ‘anti-Semitic’ (as submitted by the Respondents), I consider that they convey, at least, antipathy on the part of the Applicant towards those Jewish people who the Applicant regards as ‘Zionists’.
- [24]With respect to the Respondent’ contentions:
- I note that the evidence referred to in the original reasons did not contain language of the type set out at paragraph [20] above;
- the broad effect of the Applicant’s stated position in some of the evidence set out in the original reasons was that the Jewish community had ‘a lot of influence over JCU’;
- consistently with the Applicant’s submissions, I accept that the content of the original reasons does not suggest that the Second, Third, and Fourth Respondents are Jewish;
- there is no suggestion in the original reason that those staff members of the University who were identified by the Applicant as being Jewish had any involvement in the rumours or the alleged treatment the subject of the Applicant’s claims against the Respondents;
- the original reasons included findings that made clear that the Applicant had failed to establish that the Applicant’s ‘race and religion attributes’ played any part in the treatment complained of by the Applicant (see, for example, original reasons [348], [355], [363], [367], [375]);
- the basis for the Respondents’ current concerns chiefly involves the Applicant’s foreshadowed intentions in relation to going public and involving the media. In view, the content of the original reasons, as redacted and anonymised, is not of such a nature as would create the risk of a response likely to endanger the physical or mental health or safety of the Second, Third, and Fourth Respondents (or other named persons not already anonymised), and the Respondents have not produced material from which an inference could be drawn that such an outcome is a real possibility. Notwithstanding the Applicant’s antipathy discussed above, I consider that, in light of the dismissal of the Applicant’s complaint, and the specific findings in the original reasons, the risk of the asserted consequences in subparagraphs [19](b) and (c) above is merely speculative;
- similarly, I am not satisfied that anonymisation of the Second, Third, and Fourth Respondents is necessary to protect their work security, privacy or any human right pursuant to s 191 of the ADA;
- consistently with the Applicant’s submissions, I find that the University’s concern of damage to its reputation is not a sufficient basis for the making of the orders sought (or the anonymisation of the University).
- [25]As noted above, the primary order sought by the Respondents is the non-publication of the original decision and the subsequent decisions.
- [26]As observed in the Reasons for Decision of 24 April 2024, under s 66 of the QCAT Act, the Tribunal has a broader discretion to constrain the operation of the ‘open justice’ principle than is available to the Courts. However, I consider that this discretion, if exercised, would ordinarily involve the anonymisation of a party,[10] or a witness, or another person named in the Reasons. In my view, the suppression of publication of the whole of the Tribunal’s reasons involves a significantly greater restriction on the open justice principle. It would mean that the Tribunal’s reasons for decision would be wholly shielded from public access and scrutiny. I consider that such an outcome would require compelling grounds, for example, national security or a demonstrable risk of physical or mental harm to a particular person or persons even if anonymised reasons were published. In my view, this case falls short of that high bar.
- [27]In the above circumstances, I find that the Respondents have failed to establish that (and I do not consider it necessary that) the order sought (or an order anonymising the Respondents) should be made on one of the grounds set out in ss 66(2)(a) to (e) (in particular (b) and (e)) of the QCAT Act), or that an order anonymising the Respondents should be made pursuant to s 191 of the ADA. I consider that the Respondents’ NPO application should be dismissed. For clarity, I will order that the respective anonymised reasons, including these reasons, may be published on the Queensland Supreme Court Library website.
Orders
- [28]For the reasons set out above, I order that:
- Subject to Orders 2 to 5 of this Decision, pursuant to s 66(1) and s 66(3) 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:
- the name of the Applicant in this proceeding;
- the Decision and Reasons for Decision dated 2 April 2024;
- the Decision and Reasons for Decision dated 24 April 2024;
- all documents or things filed in or produced to the Tribunal in the proceeding, and evidence given before the Tribunal, since 23 April 2024.
- The Redacted Reasons (referred to in the Decision dated 24 April 2024) will be anonymised to give effect to Order 1(a) of this Decision (‘the Anonymised Original Reasons’).
- The Reasons for Decision dated 2 April 2024 will be anonymised to give effect to Order 1(a) of this Decision (‘the Anonymised Costs Reasons’).
- The Reasons for Decision dated 24 April 2024 will be anonymised to give effect to Order 1(a) of this Decision (‘the Anonymised NPO Reasons’).
- 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 things referred to in Orders 1(a) to 1(d) inclusive of this Decision.
- The Respondents’ Application for miscellaneous matters filed on 27 May 2024 is dismissed.
- The Anonymised Original Reasons, the Anonymised Costs Reasons, the Anonymised NPO Reasons, and the Reasons for this Decision may be published on the Queensland Supreme Court Library website.
Footnotes
[1] [2023] QCAT 93.
[2] See [15]-[17].
[3] [2023] QCAT 300, [8].
[4] The Tribunal also previously dismissed an application by the Respondents for a non-publication order.
[5] And, similarly, the Applicant’s statements referred to at paragraph [20] below.
[6] The inclusion of an application to the Court of Appeal has been made out of an abundance of caution, and I note the operation of the Uniform Civil Procedure Rules 1999 (Qld) in relation to appeals to the Court of Appeal: Dovedeen Pty Ltd & Anor v GK [2013] QCA 116, [34].
[7] Respondents' submissions, [14]-[17].
[8] Respondents' submissions, [22]-[24].
[9] Respondents' submissions, [18]-[21].
[10] This is also recognised in s 191 of the ADA.