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  4. Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2) - [2016] QIRC 56

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Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2)[2016] QIRC 56

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2)[2016] QIRC 56

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2016] QIRC 056

PARTIES:

Weston, Jeremy Simon

(Applicant)

and

Parer, Siobhan Maree

(Applicant)

v

State of Queensland (Department of Justice and Attorney-General)

(Respondent)

CASE NOS:

B/2015/44

B/2015/45

B/2015/51

PROCEEDING:

B/2015/52

Application for Suppression Order

 

DELIVERED ON:

17 May 2016

HEARING DATE:

27 April 2016

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDERS:

The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION BY RESPONDENT FOR SUPPRESSION ORDER - where litigation by two solicitors of Crown law alleging reprisal action by senior officers - whether in the public interest - where applicants oppose application - where News Corp Australia made submission - where information is protected or privileged - where Commission proceedings and records are public - whether proposed terms of order contrary to the notion that justice be public

CASES:

Industrial Relations Act 1999, s 679

Industrial Relations (Tribunals) Rules 2011

Personal Injuries Proceedings Act 2002

J. v L. A. Services Pty Ltd (No. 2) [1995] 2 Qd R 10

QNU v QCCI (2000) 165 QGIG 131

Hogan v Australian Crime Commission [2010] HCA 21

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125

Mayne Logistics Armaguard v Cochrane (2002)  172 QGIG 1139

APPEARANCES:

Mr P. Callaghan, SC and Mr S. Reidy, Counsel instructed by Susan Moriarty & Associates for the Applicants.

Dr M. Spry, Counsel instructed by Minter Ellison Lawyers for the Respondent.

Decision

  1. [1]
    On 27 April 2016, the Respondent made an application for the Commission to issue an Order under s 679 of the Industrial Relations Act 1999 (a suppression order) in the following terms:

"That the evidence filed and the transcripts in matter numbers B/2015/44, B/2015/45, B/2015/51 and B/2015/52 be released to or searched by only the parties, without further order of the Commission."

  1. [2]
    The order is sought in the context of litigation commenced by two solicitors of Crown Law who allege reprisal action has been taken against them by senior officers of Crown Law and the Department of Justice and Attorney-General (DJAG).  At this stage of the proceedings it is primarily the Applicants who have filed affidavits; although affidavits rejecting allegations of reprisal action have been filed by Mark Rallings, Commissioner, Queensland Corrective Services, DJAG and Kerrith McDermott, Deputy Commissioner of Queensland Corrective Services, DJAG.  Directions have been issued for the conduct of the litigation including the filing of affidavits from the Respondent's witnesses.
  1. [3]
    The Respondent seeks such an order on the grounds that it is not in the public interest for the affidavits to be publicly available given the nature of the matters raised in those affidavits.  Further, while the Commission proceedings are public, different considerations apply to accessing the transcript.  In any event, it is usual for the transcript to be released only to the parties.
  1. [4]
    The Applicants oppose the Respondent's application.  It is their submission that "the horse had already bolted" as various matters contained in their affidavits have already been made public.  This position was advanced in the full knowledge that further affidavits filed by the Applicants disclose personal information.  The Applicants advise they would consider any subsequent application under s 679 for individual items of evidence should one be made.
  1. [5]
    In response, the Respondent submits that prior public release of information is not a sufficient argument to weigh against making an order in the terms sought going forward.
  1. [6]
    On 9 May 2016, the Commission received correspondence from Gina McWilliams, Senior Legal Counsel, News Corp Australia, who advises she acts for the publishers comprising News Corp Australia including Queensland Newspapers Pty Limited, publisher of The Courier-Mail.  Ms McWilliams advises that had her client been given advanced notice of the application it would have intervened to oppose the order.  Given the Commission was in the process of making its decision, News Corp did not wish to put the Commission or the parties to the inconvenience or expense of reconvening the hearing to put formal submissions.  In those circumstances, News Corp made written submissions which it requested the Commission to treat as submissions in chambers.
  1. [7]
    In its submissions News Corp drew the Commission's attention to the decision of the Queensland Court of Appeal in J. v L. A. Services Pty Ltd (No. 2),[1] which was cited with approval by this Commission including a Full Bench in QNU v QCCI.[2]  The decision of the Queensland Court of Appeal set out six principles applicable to making a suppression order, including "no unnecessary restriction upon public access or publicity in respect of court proceedings is permissible."[3]  News Corp focussed on the concept of necessity, which it submits has been approved in other Australian jurisdictions.[4]
  1. [8]
    News Corp notes that the two Applicants are employees of Crown Law and advise the Attorney-General.  As public servants, reports about the functions they perform and any allegations about their performance attract the highest public interest.  This is not a case where the open administration of justice should be restrained.
  1. [9]
    News Corp comments that a journalist from Fairfax publications has had access to the files and published a report based on the documents.  A News Corp journalist applied for access before the application was made and has also published a report.  News Corp submits that in light of past publication of reports any order restraining publication of matters and documents that have already been the subject of published reports is not necessary on the basis of futility and should not be made.
  1. [10]
    In response to the submission of News Corp, the Respondent provided a further submission elaborating on its reasons for seeking the suppression order.  The Respondent notes that Mr Weston and Ms Parer are personal injury lawyers at Crown Law who have responsibility for conducting the defence of various third party damages claims against the State of Queensland under the Personal Injuries Proceedings Act 2002 (PIPA).  Through their work, the Applicants access sensitive personal information of clients which is required to be disclosed under PIPA but which is protected by the same privileges as if disclosed in the Supreme Court of Queensland.  The Applicants also provide legal advice and engage in other communications with clients which is protected by legal professional privilege.
  1. [11]
    The Respondent contends that a key issue in the litigation is the Applicants' conduct of files relating to certain PIPA claims and evidence will be given in the proceedings which includes the information which is privileged or protected for the reasons set out above.
  1. [12]
    The Respondent acknowledges the public interest considerations raised by News Corp and advises it considered whether specific orders could be made by the Commission to adequately protect the information while affording public access to the balance of the proceedings.  However, the Respondent reached the conclusion that because the information is central to the proceedings and will be referred to throughout the evidence recorded in transcript, its application for the broader order was maintained.
  1. [13]
    In reply to the submissions of News Corp and the Respondent, the Applicants advise they maintain their position that the Order should be refused in its entirety.  Were the Commission minded to limit disclosure then those parts of the documents protected by legal professional privilege could be excised from the material to be disclosed to the public and other privileged information redacted.
  1. [14]
    Although News Corp prefers that no suppression order be made, it concurs with the view of the Applicants.

Consideration

  1. [15]
    No issue has been taken with News Corp's making a submission in relation to the order sought by the Respondent.  Without determining whether News Corp has standing to make a submission and in the absence of submissions made on the matter, I have proceeded to determine the application on the basis of all of the submissions received.
  1. [16]
    The Commission, being a creature of statute, has no inherent power to prohibit publication, release or search of evidence or records.[5]  The power to do those things is found in s 679, the relevant provisions of which are:

"(5) The court, commission or registrar may direct -

  1. (a)
    a report, or part of a report, of proceedings in an industrial cause not be published; or
  1. (b)
    evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
  1. (6)
    The direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the court, commission or registrar.

…

  1. (8)
    The direction may be given if the court, commission or registrar considers -
  1. (a)
    disclosure of the matter would not be in the public interest; or
  1. (b)
    persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter."
  1. [17]
    In Mayne Logistics Armaguard v Cochrane, Hall P considered the effect of s 679(8) as follows:

"… I do not accept that s. 679(8) is a restriction on the Commission’s statutory power to order the suppression of evidence and the hearing of evidence in private.  Section 679(8)  is the source of those powers.  The power arises when the Commission reaches a conclusion particularised at (a) and (b) of s. 679(8).   Section 679  does not expressly say anything about how the power is to be exercised.  That said, it seems to me that the matters which give rise to the existence of the power must also be relevant to its exercise and that, consistently with the approach adopted by the common law courts, the Commission should proceed on the view that the reference to "public interest" at s. 679(8)(a) imports into the subsection the notion that justice should be public. However, the Commission must also have regard to other considerations which the Industrial Relations Act 1999 makes relevant.  In particular, the joint operation of ss. 274(2), 320 and 329 requires the Commission to:

  1. (a)
    hear and decide an industrial cause in the way that appears best suited for the purpose;
  1. (b)
    to consider the public interest with regard to the objects of the Act, the likely effects of the decision on the community, local community, economy, industry generally and the particular industry concerned; and
  1. (c)
    if necessary, to pass through the technicalities, legal forms and the rules of evidence undeterred."[6]
  1. [18]
    Ordinarily, proceedings in the Commission are public and Commission records are able to be searched subject to the Industrial Relations (Tribunals) Rules 2011.  This has already occurred in relation to certain of the Applicants' affidavits.  The litigation has not yet reached the point where the Respondent is required to file affidavits from its witnesses responding to the Applicants' claims in the substantive applications and detailing their concern about the Applicants' conduct or performance in connection with certain PIPA files.  On the three occasions when hearings have been held on preliminary matters relating to the applications, the transcript has been released to the parties and the public.  Release of the transcript in this manner is standard practice for hearings in the Commission unless an order under s 679 is made.  (Conferences are treated differently.)
  1. [19]
    A key issue involved in the litigation from the Applicants' perspective is the allegations of reprisal action taken against them by senior Crown Law officers and senior officers of DJAG.  I accept there is a public interest in the proceedings, including responses to the allegations and rationale for their actions by those senior Crown Law and Departmental staff in light of the roles played in the justice system by Crown Law and DJAG.
  1. [20]
    From the Respondent's perspective, a critical feature of the litigation will be the Applicants' conduct in relation to certain PIPA files.  News Corp advises that this is the matter that attracts the highest public interest and for this reason seeks the ability to access the Commission's records and transcript.  The Respondent has adverted to the nature of the evidence to be presented by its witnesses and adduced in cross‑examination.  As far as the Respondent is aware the Supreme Court has not granted leave in relation to any of the Third Party Personal Information relevant to the proceedings and it does not waive privilege in any of its relevant information.  The Applicants seem prepared to accept that parts of the evidence are protected by legal professional privilege but suggest an alternative means of dealing with privileged information other than by a s 679 order.
  1. [21]
    I am not persuaded at this point that the order in the terms sought should be made.  I am concerned about its breadth.  If granted, it would have the effect of preventing public access to all records filed in the Commission, including affidavits, and transcripts of proceedings, before the Commission has had the opportunity to properly understand the extent and nature of the evidence and whether some or all of it should be suppressed for the reasons advanced by the Respondent.  To issue an order in such broad terms would be contrary to the notion that justice should be public especially where there is a public interest in the issues raised in the applications including the performance of the Applicants and the conduct of officers of the Respondent.
  1. [22]
    Although I am prepared to accept that at least some of the content of the affidavits of the Respondent's witnesses will be protected under PIPA or legally privileged, the application is premature.  In my view, this is a case where the Commission should consider any application for an order pursuant to s 679 as circumstances arise.  This would allow the Commission to properly take account of the considerations identified by Hall P in Mayne Logistics.  The better way to proceed is for the party seeking an order under s 679 to file such an application when filing its affidavits.  The affidavits, although part of the Commission's records, will not be available for public search or release until the s 679 order application is heard and determined.  Any such application will be heard as quickly as circumstances allow in order to ensure that access to any information that is made publicly available is not delayed unnecessarily.
  1. [23]
    In relation to the transcripts, it may be possible to quarantine the evidence about the Applicants' conduct of the PIPA files which invokes privileged or protected information from other evidence.  Again, this is a matter best considered when the Commission is apprised of the evidence to be given.

Order

  1. [24]
    The application is dismissed.

Footnotes

[1] J. v L. A. Services Pty Ltd (No. 2) [1995] 2 Qd R 10.

[2] QNU v QCCI (2000) 165 QGIG 131, 133-134.

[3] J. v L. A. Services Pty Ltd (No. 2) [1995] 2 Qd R 10, 44-45.

[4] Hogan v Australian Crime Commission [2010] HCA 21, [33]; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, 76-78.

 

[5] QNU v QCCI (2000) 165 QGIG 131, 131.

[6] Mayne Logistics Armaguard v Cochrane (2003) QGIG 1139, 1140-1141.

Close

Editorial Notes

  • Published Case Name:

    Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2)

  • Shortened Case Name:

    Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2)

  • MNC:

    [2016] QIRC 56

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    17 May 2016

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
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
2 citations
Jump To
Cite 1 - [2012] NSWCCA 125
Cite 2 - [2012] NSWCCA 125
Hogan v Australian Crime Commission [2010] HCA 21
2 citations
Jump To
Cite 1 - [2010] HCA 21
Cite 2 - [2010] HCA 21
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
3 citations
Jump To
Cite 1 - [1995] 2 Qd R 10
Cite 2 - [1995] 2 Qd R 10
Cite 3 - [1995] 2 Qd R 10
Mayne Logistics Armaguard v Cochrane (2003) QGIG 1139
1 citation
Jump To
Cite 1 - (2003) QGIG 1139
Mayne Logistics Armaguard v Cochrane (2002) 172 QGIG 1139
1 citation
Jump To
Cite 1 - (2002) 172 QGIG 1139
QNU v QCCI (2000) 165 QGIG 131
3 citations
Jump To
Cite 1 - (2000) 165 QGIG 131
Cite 2 - (2000) 165 QGIG 131
Cite 3 - (2000) 165 QGIG 131

Cases Citing

Case NameFull CitationFrequency
Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 1363 citations
Parer v Queensland (No 4) [2016] QIRC 1232 citations
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3) [2016] QIRC 583 citations
1

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