Kelsey v Logan City Council and Another (No. 2)
[2018] QIRC 17
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- Kelsey v Logan City Council and Another (No. 2)[2018] QIRC 17
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Kelsey v Logan City Council and Another (No. 2)[2018] QIRC 17
Kelsey v Logan City Council and Another (No. 2)[2018] QIRC 17
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kelsey v Logan City Council and Another (No. 2) [2018] QIRC 017 |
PARTIES: | Kelsey, Sharon (Applicant) v Logan City Council (First Respondent) and Smith, Timothy Luke (Second Respondent) |
CASE NO: | PID/2017/3 |
PROCEEDING: | Application for interim orders |
DELIVERED ON: | 27 February 2018 |
HEARING DATE: | 14 February 2018 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: |
|
LEGISLATION: | Public Interest Disclosure Act 2010, s 55 Industrial Relations Act 1999, s 679 Industrial Relations Act 2016, s 580 Local Government Act 2009, s 176B Kelsey v Logan City Council and Another [2018] QIRC 009 J. v L. & A. Services Pty Ltd (No. 2) [1995] 2 Qd R 10 QNU v QCCI (2000) 165 QGIG 131 Mayne Logistics Armaguard v Cochrane (2003) 172 QGIG 1139 |
APPEARANCES: | Mr C. Murdoch, QC instructed by Minter Ellison Lawyers for the Applicant. Mr A. Herbert, Counsel instructed by King & Company Solicitors for the First Respondent. Mr M. Trim, Counsel instructed by Gadens Lawyers for the Second Respondent. |
Decision
- [1]The Applicant filed an application on 1 December 2017 which was amended on 18 December 2017.
- [2]On 4 and 20 December 2017 the Commission as constituted made suppression orders under s 55 of the Public Interest Disclosure Act 2010 at the request of the Applicant and without objection from the Respondents.
- [3]The hearing of the interim injunction application was held on 25 January 2018 and the Commission's decision in relation to it was released on 1 February 2018.[1] That decision sets out the background and purpose of the application.
- [4]On 14 February 2018, the Commission listed a Mention of the application to raise with the parties whether a continuing need existed for the suppression orders. By that time the decision of the First Respondent in respect of the Applicant's employment was public knowledge and two of the parties to the proceedings had conducted media interviews. The Commission expressed the view that in light of those circumstances, the continuation of the suppression orders arguably may not be in the public interest. The parties were invited to make submissions about the issues raised.
- [5]At the hearing the Applicant advised that she intended to file and serve a further amended application on the Respondents by 20 February. Following discussion, the parties agreed the further amended application would be served on the Respondents but not filed in the Registry to allow the Commission to make its determination on the suppression orders.
- [6]The date for service of 20 February was not achieved but a further amended application has since been served. The Respondents' submissions on the state of the suppression orders were provided in advance of the receipt of the further amended application.
- [7]After receiving these submissions, the First Respondent took issue with the widened scope of the further amended application and requested permission to make further submissions on the suppression order debate. The Commission advised that such issue was properly a matter for the Member who was hearing the substantive application. This decision on the suppression orders is confined to the materials filed up to the hearing of the interim injunction application, i.e., 25 January 2018, and the transcripts of the proceedings before me.
- [8]Written submissions have been received from all parties and have been considered in reaching this decision.
- [9]It is fair to say there is no common view. The Second Respondent has taken the most conservative view, advancing a primary position that the suppression orders should continue in effect. This submission was made given the nature of the issues involved, particularly that the Crime and Corruption Commission was investigating the PID made by the Applicant.
- [10]The First Respondent takes a more moderate approach. Its position is that the identities of its employees who are mentioned in the filed material should remain suppressed as should the contents of the PID.
- [11]The Applicant takes a more liberal approach. Her view is that no blanket suppression order is required in the circumstances now present on this case, however, it would be open to the Commission to order that the names of the persons other than the Second Respondent referred to in the PID be anonymised where they are named in the PID.
Consideration
- [12]Both the Applicant and the Second Respondent have referred me to the decision of the Queensland Court of Appeal in J. v L. & A. Services Pty Ltd (No. 2)[2] which sets out six principles applicable to making a suppression order. The Applicant specifically references the principle which provides that "no unnecessary restriction upon public access or publicity in respect of court proceedings is permissible" and the following remarks:
"… information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm or other 'collateral disadvantage' … Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected."
- [13]The Commission, being a creature of statute, has no inherent power to prohibit publication, release or search of evidence or records.[3] The power to do those things is found in s 580 of the Industrial Relations Act 2016 and s 55 of the PID Act. I should also note that in Mayne Logistics Armaguard v Cochrane,[4] Hall P considered the effect of s 679(8) of the Industrial Relations Act 1999 (the predecessor provision to s 580 of the IR Act) in terms of other statutory obligations on the Commission when exercising its powers or carrying out its functions. While Hall P considered that s 679(8) imported the notion that justice should be public, the joint operation of several other sections meant that the Commission should also have regard to other considerations in determining how best to meet the public interest in a particular case. The IR Act provisions are relevant as the amended application is being prosecuted both under two Acts as it concerns reprisal under the PID Act and adverse action under the IR Act.
- [14]When the Commission made the suppression orders in December 2017 the circumstances were different to the present. At that stage the Applicant was an employee of the First Respondent and her application, amended application and affidavits canvassed certain conduct of the Second Respondent in connection with her employment, the reason she made the PID as well as other matters. The PID was attached to the Applicant's affidavit. The Commission accepted the Applicant's submissions that such matters were sensitive and may result in prejudice for the parties and employees of the First Respondent if the information referred to in the affidavits or attached to them was made public prior to the CCC investigation. The Applicant's position on the suppression orders has clearly changed.
- [15]The public airing of some of the matters involved in the proceedings has led me to the view that there is little value in the continuation of the suppression orders of 4 and 20 December 2017 in their totality. Much of the information in the public domain has been put there by the principal protagonists.
- [16]In my view there is a public interest in the proceedings not only because of the termination of the employment of the Applicant, who is the former chief executive of the First Respondent, but also because of the allegations made by her about the conduct of the Second Respondent. The public interest also arises given the First Respondent is a local government authority which is publicly funded and the Second Respondent is a publicly elected official of the First Respondent. For these reasons, I do not intend to continue the suppression orders in their current form but to moderate them to take account of the public interest and importantly, the notion that justice should be public, bearing in mind the principles enunciated by the Queensland Court of Appeal and the approach set out by Hall P in Mayne Logistics Armaguard v Cochrane.
- [17]While I consider there is a public interest in the allegations made by the Applicant about the conduct of the Second Respondent, some of those matters are found in the PID made by her. I understand that the CCC is still investigating the PID and I consider it to be premature, and possibly in breach of the PID Act, to make the contents of the PID publicly available at this point. The orders that are to be made require the suppression of the contents of the PID and the names of any employee of the First Respondent named in the PID which appear in documents filed, tendered or exhibited in the application or the transcript of the proceedings. The order about the suppression of the PID also applies to the complaint made by the Applicant under s 176B of the Local Government Act 2009 given the Applicant states in her affidavit that it raises the same issues as the PID.
- [18]I have also decided to suppress the names of any employees who are said by the Applicant to have provided information to her about the alleged conduct of the Second Respondent subsequent to the PID and which appear in documents filed, tendered or exhibited in the application. I have taken this action to ensure that the interests of those employees are protected in view of the nature of the issues to be ventilated.
- [19]A general suppression order on the names of other employees who were not named in the PID or involved as described will not be made as there are several and they do not seem to have an interest of a type which would ordinarily need to be protected from public scrutiny.
- [20]The orders are made both under s 55 of the PID Act and s 580 of the IR Act to take account of the dual focus of the application. The orders about the suppression of names do not apply to the Second Respondent, other Councillors or former employees of the First Respondent.
- [21]The Draft Suppression Order set out below is intended to be the final order made by the Commission in terms of the material which has been filed from 1 December 2017 to 25 January 2018 and the transcripts of the proceedings before me.
- [22]In my view, it is insufficient to simply make the form of order contained in the Draft Suppression Order which is broadly consistent with that proposed by the First Respondent. Although it requires the suppression of names or documents from release, search or publication, it does not identify the particular names or documents that are to be suppressed. Without redaction, there is a risk that the purpose of the orders might be inadvertently subverted.
- [23]The Orders immediately made direct the First Respondent to undertake the redaction of documents so that the Draft Suppression Order can be made in final form. The redacted documents will be available for public search.
- [24]Orders 2 and 3 ensure that the suppression orders made by the Commission on 4 and 20 December 2017 remain in force while the process of redaction occurs.
- [25]Order 4 allows the parties to apply where the form of the draft suppression order requires amendment or where the orders now made require revision.
- [26]The Commission's decision on the interim injunction application dated 1 February 2018 was released with the parties' names anonymised following discussion with them in light of the sensitivity of the issues involved. For the same reasons the continuing need for the suppression orders was raised, the Commission also raised with the parties whether the names of the parties to the application should now be made public in the decision. The parties' submissions did not address this matter.
- [27]The decision is public and has been reported. I can see no value in retaining the anonymity of the parties' names. Accordingly, I have decided to republish the decision with the parties' names. Further, paragraph [8] of the original decision is now obsolete and has been removed.
Draft Suppression Order
- That, pursuant to s 55 of the Public Interest Disclosure Act 2010 and s 580(5) of the Industrial Relations Act 2016, in respect of any report of proceedings, any evidence given, or anything filed, tendered or exhibited in the proceedings for the period 1 December 2017 to 25 January 2018:
- (a)the names of any employee of the First Respondent identified in the PID which appear in any report of proceedings, any evidence given, or anything filed, tendered or exhibited in the proceedings be withheld from release or search;
- (b)the names of any employee of the First Respondent who are said by the Applicant to have provided information to her about the alleged conduct of the Second Respondent subsequent to the PID which appear in any report of proceedings, any evidence given, or anything filed tendered or exhibited in the proceedings be withheld from release or search;
- (c)no person shall publish in any public place or forum, whether in print or electronically, the name of any employee of the First Respondent to whom paragraph (a) or (b) applies;
- (d)paragraphs (a) and (b) do not apply in any case in which an employee of the First Respondent has provided to the Queensland Industrial Relations Commission their express consent to the search, use and publication of their name in these proceedings; and
- (e)any written material of any kind that contains any description of the content of the Public Interest Disclosure under the Public Interest Disclosure Act 2010 and which is included in any transcript, any evidence given or anything filed, tendered or exhibited in the proceedings, be withheld from release or search.
Orders
- Within 7 days, the First Respondent is to:
- (a)Redact any material filed, tendered or exhibited in the proceedings for the period 1 December 2017 to 25 January 2018 but only to the extent necessary, where it:
- (i)identifies the names of any employee of the First Respondent identified in the PID; or
- (ii)identifies the names of any employee of the First Respondent who are said by the Applicant to have provided information to her about the alleged conduct of the Second Respondent subsequent to the PID; or
- (iii)contains any description of the Public Interest Disclosure made under the PID Act 2010.
- (b)Notify the Registry in writing of any pages of the transcript which contains the names or description as set out in Order 1(a)(i).
- (c)The redacted versions of the material filed will be filed in the Registry and provided to the parties and be made available for search.
- (d)If the parties have any objection to the redactions made they will confer about the objections.
- (e)Any agreed variation to the redactions will be advised to the Registry and made available for search.
- (f)Any variations not agreed will be listed for mention or hearing.
- Until the redacted material has been filed in accordance with this Order, the Order made on 4 December 2017 and Order No 2 made on 20 December 2017 shall continue in force.
- That this Order operate from 27 February 2018 for a period of 10 days or until such time as the Draft Suppression Order is formally made.
- Liberty to apply is granted.