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Mohr-Edgar v State of Queensland (Legal Aid Queensland)[2020] QIRC 136

Mohr-Edgar v State of Queensland (Legal Aid Queensland)[2020] QIRC 136

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136

PARTIES: 

Mohr-Edgar, Sandra

(Applicant)

v

State of Queensland (Legal Aid Queensland)

(Respondent)

CASE NO:

AD/2019/67

 

PROCEEDING:

Application in existing proceedings

 

DELIVERED ON:

31 August 2020

 

HEARING DATES: 

11 June 2020

 

MEMBER:

Pidgeon IC

 

ORDERS:

Application Dismissed.

 

 

INDUSTRIAL LAW – APPLICATION FOR  INJUNCTION – APPLICATION IN EXISTING PROCEEDINGS BY RESPONDENT – where respondent seeking names of employees to be suppressed – where principles of open justice apply.

LEGISLATION:

Industrial Relations Act 2016, s 451, s 580

Anti-Discrimination Act 1991, s 191

Human Rights Act 2019, s 25

CASES:

Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371

H v H and HS [2001] QADT 5

J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10

Mayne Logistics Amaguard v Cochrane (2003) QGIG 1139

Paxton v Children's Health Queensland, Hospital and Health Service (No 2) [2020] QIRC 023  

Paxton v Children's Health Queensland, Hospital and Health Service (No 3) [2020] QIRC 28

Seven Network (Operations) Limited and Ors v James Warburton (No 1) [2011] NSWSC 385

Weston and Parer v State of Queensland (DJAG) (No. 2) [2016] QIRC 056

APPEARANCES:

Ms S Mohr-Edgar, Applicant self-represented.

Ms J Marr of Counsel instructed by Ms P Tyquin, Crown Law for the Respondent. 

Decision

Background

  1. [1]
    The Application within existing proceedings seeking suppression orders was filed on by the State of Queensland (Legal Aid Queensland)("LAQ/the State"), the Respondent in the substantive matter.
  1. [2]
    The orders sought are:
  1. Pursuant to s 580(5)(a) of the IR Act a report of these proceedings not be published, except to the parties to the proceedings.
  1. Pursuant to s 580(5)(b) of the IR Act:
  1. all documents in relation to these proceedings including; court documents, witness statements/affidavit material and annexures, written submissions, correspondence and transcripts of proceedings be withheld from release or search or publication to any person;
  2. no person in receipt of any of the materials identified in the preceding subparagraph publish the material in whole or in part to any person,

except to the parties to the proceedings, including their respective legal representatives (if any), and any member of the Commission who may be appointed to hear or determine the proceedings, or any part of the proceedings.

  1. Alternatively to paragraph 2 above, pursuant to s 580(5)(b) of the IR Act and s 191(1) of the Anti-Discrimination Act 1991 (AD Act):
  1. all documents in relation to these proceedings including; court documents, witness statements/affidavit material and annexures, written submissions, correspondence and transcripts of proceedings be withheld from release or search or publication to any person;
  2. no person in receipt of any of the materials identified in the preceding subparagraph publish the material in whole or part to any person,

except

  1. to the parties to the proceedings, including their respective legal representatives (if any), and any member of the Commission who may be appointed to hear or determine the proceedings, or any part of the proceedings; and
  2. to the extent that the materials identified in sub-paragraph (b) above have been redacted to remove all reference to, or which may identify, any of the persons listed below, namely:
  1. the individual Respondents, being:
  1. Mr Paul Davey, Second Respondent;
  1. Ms Nicky Davies, Third Respondent;
  1. Ms Toni Bell, Fourth Respondent;
  1. the lawyers employed by the First Respondent, or employees holding legal qualifications and employed by the First Respondent being;
  1. Ms Lyndi Hawkings-Guy;
  1. Ms Kyle Terrance;
  1. Ms Sarah D'Alton;
  1. Ms Jessica Dean;
  1. Ms Mary-Ann Huth;
  1. Ms Erin Ames;
  1. Mr John Blayney;
  1. Ms Tamaryn Townshend;
  1. Ms Suzie Brandt; and
  1. Ms Kate Langdon.
  1. any person (including a person not named in the preceding subparagraphs) employed by the First Respondent and who after the date of this order, becomes involved in the proceedings as a witness and/or is required to produce documents to the Commission in the course of the proceedings and/or is referred to or otherwise identified in any of the material produced to the Commission, including statements of evidence or affidavit material or any other document; and
  1. any person who was, is, or during the course of the proceedings, becomes, a client of the First Respondent and who after the date of this order, becomes involved in the proceedings as a witness and/or is required to produce documents to the Commission in the course of the proceedings and/or is referred to or otherwise identified in any of the material produced to the Commission, including statements of evidence or affidavit material or any other document.
  1. Further or alternatively to paragraph 3 above, pursuant to s 191(1) of the AD Act, the Commission prohibits the disclosure of the identity of any of the persons below, namely;
  1. the individual Respondents, being:
  1. Mr Paul Davey, Second Respondent;
  1. Ms Nicky Davies, Third Respondent; and
  1. Ms Toni Bell, Fourth Respondent.
  1. The lawyers employed by the First Respondent, or employees holding legal qualifications and employed by the First Respondent being:
  1. Ms Lyndi Hawkings-Guy;
  1. Ms Kylie Terrance;
  1. Ms Sarah D'Alton
  1. Ms Jessica Dean;
  1. Ms Mary-Ann Huth;
  1. Ms Erin Ames;
  1. Mr John Blayney;
  1. Ms Tamaryn Townshend;
  1. Ms Suzie Brandt; and
  1. Ms Kate Langdon.
  1. Any person (including a person not named in the preceding sub paragraphs) employed by the First Respondent and who after the date of this order, becomes involved in the proceedings as a witness and/or is referred to or otherwise identified in any of the material produced to the Commission, including statements of evidence or affidavit material or any other document; and
  1. Any person who was, is, or during the course of the proceedings, becomes, a client of the First Respondent and who after the date of this order, becomes involved in the proceedings as a witness and/or is required to produce documents to the Commission in the course of the proceedings and/or is referred to or otherwise identified in any of the material produced to the Commission, including statements of evidence or affidavit material or any other document. 
  1. Any other order as determined by the Commission. 
  1. [3]
    The onus is on the party making the application to show circumstances exist which would justify making orders such as those sought by the State. 

Legal Framework

  1. [4]
    Under s 580(5) of the IR Act, the Commission may direct:
  1. (a)
    a report, or part of a report, of proceedings in an industrial cause not be published.
  1. (b)
    evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
  1. [5]
    By s 580(6), the Commission can make such a direction absolutely or on conditions.
  1. [6]
    Further, under s 580(7) of the IR Act, the direction may be given if the Commission 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. [7]
    Section 191(1) of the AD Act states:

191 Anonymity

  1. (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. 

  1. (2)
    In this section, a reference to involvement in a proceeding under the Act includes-
    1. making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
    2. being a respondent to such a complaint; and
    3. involvement in a prosecution for an offence against the Act; and
    4. giving information or documents to a person who is performing a function under the Act; and
    5. appearing as a witness in a proceeding under the Act.
  1. [8]
    Section 451(1) and (2) of the IR Act states:
  1. The Commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. Without limiting subsection (1), the commission in proceedings may -

  1. (a)
    make an order it considers appropriate.
  1. [9]
    The Queensland Court of Appeal decision in J v L & A Services Pty Ltd,[1]("J v L & A") outlined six principles that govern the exercise of discretion to make suppression orders:
  1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
  2. Publicity may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
  3. The permitted exceptions are… [based] upon the actual loss of [practical] utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected… 
  4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
    1. (a)
      Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
    2. (b)
      A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
    3. (c)
      An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
  6. ... 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', to use the expression adopted in R. v. Tait. 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. Open justice is nondiscriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…

Submissions

Legal Aid Queensland – Affidavit supporting application

  1. [10]
    In support of the Application in existing proceedings, Ms Peta Tyquin of Crown Law filed an Affidavit on 29 April 2020. In summary:
  • Three individual employees of LAQ are named as respondents to the proceedings. 
  • The Complainant's Queensland Human Rights Commission ("QHRC") complaint and her statement of facts and contentions contain allegations against and/or reference to numerous employees of LAQ who are either employed by LAQ as lawyers or employees who are legally qualified but not employed as practicing legal practitioners.
  • The Commission has not yet made orders for the parties to exchange a list of proposed witnesses to be called at the hearing, or for the parties to file and serve affidavit material. 
  • The Complainant has provided an indication to the Commission that she anticipates there could be up to approximately 20 witnesses from whom evidence may be needed. 

Impact on individuals who are employed as lawyers or are admitted legal practitioners

  1. [11]
    With regard to the impact on individuals employed by LAQ, the State submits in summary:
  • As part of their role, LAQ lawyers are required to come into contact with members of the public, sometimes on a daily basis. This includes clients of LAQ, other litigants and other lawyers.
  • In many instances LAQ lawyers will have contact with lay clients and/or unrepresented opposing parties, who are experiencing difficult and/or distressing circumstances.
  • It would not be uncommon for a LAQ client or an opposing party to conduct internet searches in relation to the LAQ lawyer allocated to their matter. 
  • Information obtained by clients and/or opposing parties may be relied upon by clients and/or opposing parties to inform their opinions about the competence, reliability and honesty of their allocated LAQ lawyer. 
  • LAQ lawyers, like other practicing lawyers are required to comply with the obligations outlined in the Legal Profession Act 2007 (LPA) and the Australian Solicitors Conduct Rules (ASCR) in the course of their work as a lawyer. 
  • In light of the obligations imposed by the LPA and the ASCR, a lawyer's integrity, honesty and reputation are of the utmost importance.   The allegations made by the Complainant are or have the potential to be damaging to the public perception of the integrity, honesty and reputation of those LAQ lawyers who are the subject of such allegations. 
  • Serious allegations have been made against people who are not named as parties to the complaint.  Whilst they are likely to be key witnesses, they do not have a right of reply to the allegations made against them by the Complainant.
  1. [12]
    The State submits that the publication of documents and/or any decision in these proceedings, without anonymity of these individuals could impact upon:
  • the work security and careers of those named or others who may be called as a witness; 
  • the right of relevant LAQ staff not to have their privacy unlawfully or arbitrarily interfered with, pursuant to s 25(a) of the Human Rights Act 2019
  • the right of relevant LAQ staff not to have their reputation unlawfully attacked, pursuant to s 25(b) of the Human Rights Act 2019
  • the public perception of LAQ's integrity, honesty and reputation as an organisation, including the effect of such a perception given the senior leadership team members as named Respondents; and
  • the clients of LAQ potentially having their need to seek legal assistance in sensitive circumstances. 
  1. [13]
    The named individual respondents to this proceeding are, or were at the relevant times, at senior levels of LAQ's organisational structure.  Any adverse impact on the integrity, honesty and professionalism of these individuals has a concurrent detrimental effect on the reputation of the LAQ as an organization. 

Further submissions of the State

  1. [14]
    In preparation for the hearing of this application, I requested that the parties file an outline of argument to enable me to better understand their respective positions.  
  1. [15]
    In its outline of argument filed on 26 May 2020, the State submits that the Commission must balance the interests of justice and have regard to the 'open justice' which would, on the first appearance, require no restraint on publication.  The State goes on to argue five key reasons as to why the exercise of discretion in favour of granting the suppression is warranted here. Further to the arguments discussed above, the State submits:

… the orders sought will not inhibit, in any material sense, the ability of the applicant to prosecute her various complaints.  The identity of the individuals concerned is not a critical element of any issue in dispute. 

Finally, as noted already, the suppression orders are sought only for a limited period of time.  In this sense, the balance is struck between the public interest in open justice and the public interest in ensuring that the reputation and privacy of individuals is not unfairly (and perhaps irretrievably) diminished by untested allegations of serious and personal nature.  This is particularly so where the individual's right of reply is curtailed by virtue of the fact that they play no active role in the proceeding. 

  1. [16]
    The State submits that the suppression orders sought on an interim basis fall within the category in paragraph 5 (c) of the principles referred to in J v L & A (as set out above) Specifically, the interim suppression orders are necessary to: 
  1. Prevent unfair damage being caused to the individually named respondents and the non-party LAQ lawyers and other legally qualified employees prior to a decision being made by the Commission as to the veracity of the allegations; and
  1. Protect the confidentiality of documents filed and/or disclosed in the proceedings which relate to LAQ client files, and matters subject of those files.
  1. [17]
    The principles of open justice which apply in the exercise of the discretion under s 580(5) of the IR Act are focused on protecting the transparency and public nature of court proceedings, and ensuring that such proceedings are exposed to the public and interested observers.
  1. [18]
    LAQ submits that the suppression orders sought would also protect certain information which is contained in the filed or disclosed material, but is not directly relevant, or is extraneous, to any of the questions which are to be determined by the Commission. Because of this, there will be no material injustice to the public at large, particularly given that the orders are only sought to apply until a final decision (with reasons) has been issued, subject to any further order being made. 
  1. [19]
    Paragraphs 24-55 of Ms Mohr-Edgar's affidavit, filed on 12 May 2020, refer to various matters which purport to demonstrate there is a public interest in maintaining the open publication of these proceedings. The State submits that none of the matters referred to in these paragraphs are matters which are relevant to the substantive issues to be determined by the Commission. 
  1. [20]
    In the event that the Commission is not minded to make the orders sought in paragraphs 1 and 2 of the application, the State submits that an order pursuant to s 191 of the AD Act should be made to preserve the anonymity of the second, third and fourth respondents as well as the lawyers and legally qualified employees of LAQ that are the subject of allegations and/or references are made by the applicant in her filed material. 

Applicant's Written Submissions

  1. [21]
    The Applicant says that the public interest in the open administration of justice has been fiercely guarded by the Courts and points to several decisions which highlight the limited exceptions to the principle of open justice.[2]
  1. [22]
    Ms Mohr-Edgar agrees with the State that J v L and A is the leading Queensland authority on non-publication orders and addresses the relevant principles as set out above.

J v L and A – Principle 5(c) Incidental, procedural restrictions

  1. [23]
    Ms Mohr-Edgar submits that the question for the Commission is whether the State's concerns that a number of LAQ employees may suffer distress, loss of privacy or speculative reputational loss to either the employees or by extension to LAQ itself, genuinely falls under principle 5(c) or is more properly classified as coming under the banner of principle 6. Reliance upon 5(c) is 'fatally flawed' for the following reasons:
  • This principle makes obvious the Court of Appeal had in mind non-essential or trivial details not central to the dispute.  In this case, the LAQ seeks to suppress the entirety of the evidence including the names of the individual respondents and key employee witnesses at whom allegations are levelled. 
  • The Court of Appeal had in mind law enforcement cases and the sort of details that could create a very real public harm if it were to be exposed, such as the names of police informers and operational details of covert surveillance that may be well be compromised if revealed publicly. 
  • The State's reliance on differential considerations in seeking interlocutory, rather than final, suppression orders or anonymity orders is questionable. 
  • As stated in J v L & A, occasional misuse of fundamental rights and freedoms of the general public are 'part of the cost of living in a free, democratic society' - not a cause for such freedoms to be eroded by liberally exercising discretion in cases such as this.

J v L & A – Principle 6 Loss of Privacy, embarrassment, distress, financial harm or other 'collateral disadvantage'

  1. [24]
    Ms Mohr-Edgar states that the reality is the State's case, put at its highest level, goes no further than principle 6 in J v L & A, and further commentary is pointed to in the decision

It is the last category which gives rise to the most difficulty because of unresolved questions concerned the nature and ambit of the power. Support for a more liberal approach seems substantially confined to modern authority. Even so, 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'

It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed.  It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges' subjective views of the merits or demerits of the claims to privacy or individual litigants.

  1. [25]
    Further comments on the issue are brought to my attention, namely that of Pembroke J in the decision of Seven v Warbuton:[3]

The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents. Equally it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable byproduct, and a necessary consequence, of the application of the principle. [citations omitted]

Reputational risks to individuals who are not parties to the proceeding but whom are subject of allegations:

  1. [26]
    Ms Mohr-Edgar believes risk to the reputations of individuals subject of yet not party to proceedings may offer superficial appeal but cannot be sustained under close scrutiny because:
  • not being named an individual respondent does not mean that these persons will still not be witnesses centrally involved in the final hearing.
  • the allegations of potential reputational loss are speculative at best.
  • the reasons for why suppression and anonymity are sought are insufficient and amount to no more than 'loss of privacy, embarrassment, distress, financial harm, or other collateral damage'. As such, principle 6 of J v L & A is applicable.
  • The comments of President and Lee J in J v L & A on the promotion of honest evidence through the open administration of justice are relevant:

Further, public scrutiny is a strong disincentive to false allegations and a powerful incentive to honest evidence and publicity may attract the attention of persons with material information who are unaware of the proceeding.  Again as was pointed out by McHugh JA…if information is suppressed 'proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods. 

  • Any alleged impact on these persons hinges, at best, on third hand hearsay evidence of an Affidavit by Crown Law. LAQ has failed to put forward any direct evidence from any of the persons referred to by them. 
  • Similar to the situation in Paxton (No 3) the extraordinary case has not been enlivened:

The intent of the application was to require the Commission to refrain from enforcing the principles of open justice and to produce a decision that withheld from general publication, the name of a person not a party to the proceedings who had not satisfied the standards to apply a pseudonym through the failure to demonstrate the existence of substantial reasoning. The application was not supported by grounds sufficient to warrant a departure from the well established practice in the Commission of providing nonsuppressed decisions in circumstances such as these and there were no reasons advanced to disturb the principles of open justice.[4]

  • The open administration of justice is of utmost importance when it comes to public sector organisations funded through the public purse. Any reputational loss to the LAQ is speculative at best. 
  • The identity of clients can be protected without suppression orders because confidentiality has been appropriately addressed by redacting names of parties and any identifying details in documents
  • The application for suppression and/or anonymity is premature.5
  • With regard to the State's suggestion that 'identity of the individual concerned is not a critical element of any issue in dispute' the Applicant says the individuals concerned are, if not parties, key witnesses in the proceedings as subject officers of four of the victimisation contentions and that the balancing of interests of justice also require the Complainant's interests to also be considered. 
  • Suppression is not required to secure the proper administration of justice and should not be entertained. 
  1. [27]
    With regard to the State's assertion that the suppression orders are sought for a limited period as there are 'untested allegations of a serious and personal nature' and that the relevant individuals 'play no active role in the proceeding', Ms Mohr-Edgar submits that the challenges for the State are:
  • That it could not be said that the individuals play not active role when they will be central witnesses required at the final hearing;
  • this Commission regularly hears 'untested allegations of serious and personal nature' and the allegations in these proceedings are not elevated into the extraordinary;
  • the limited period of the proposed orders cannot overcome the lack of need for suppression to ensure the proper administration of justice; and
  • the breadth of suppression orders sought by the respondents is of significant concern. 

Section 191 – Anonymity AD Act 1991

  1. [28]
    Ms Mohr-Edgar submits that while the State raises H v H and HS [2001] QADT 5, more recent decisions, including those of this Commission, are to be preferred.
  1. [29]
    More recent Queensland anti-discrimination cases considering s 191 have declined to make an anonymity order.[5]

Consideration

  1. [30]
    It is a fundamental principle of justice that court proceedings are open. The common law authorities are clear in this regard and in exercising their powers under statute members of this Commission and various courts and tribunals have looked to the decisions of others. 
  1. [31]
    Hall P considered the operation of the statutory predecessor of s 580 of the IR Act in Mayne Logistics Amaguard v Cochrane (2003) QGIG 1139:

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 s679(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 rules of evidence undeterred. 
  1. [32]
    In considering this application in existing proceedings, I began with what the legislation enables me to do, and requires me to consider. I then reflected on the specific circumstances of this current matter in light of the approaches taken by others in previous matters. 
  1. [33]
    Section 191 of the AD Act was the basis for an application for a non-disclosure order in anti-discrimination proceedings before QCAT in the matter of Bero v Wilmar Sugar Pty Ltd & Ors. Pennell M, wrote:

Before making a decision to make a non-publication order, the Tribunal should first form a reasonable opinion that the preservation of the anonymity of the people involved is necessary. In arriving at that position, the Tribunal must also have regard to the objects of the AntiDiscrimination Act which are to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. 

However, in arriving at a 'reasonable opinion' as required by the Anti-Discrimination Act, the Tribunal is required to take into account the fundamental principle that these types of proceedings in the Tribunal are open to the public.  It is a fundamental principle of justice that court proceedings are open and an order for anonymity is only made when there is some clear reason to depart from that general rule.[6] 

  1. [34]
    What is required of me is to balance the necessity of anonymity to a person involved in a proceeding with the fundamental principle of open justice.  At this stage in the proceedings, the State has not demonstrated a situation regarding the necessity 'to protect the work security, privacy or any human right' of any individual beyond speculation about how the allegations or material before the Commission may be perceived. People from a wide range of backgrounds, workplaces, trades and professions appear at the Commission as complainants, respondents, applicants and witnesses. I have given long consideration to the arguments made by the State regarding what they say is the special position of the legally qualified people (practicing and non-practicing) listed as respondents, named in the complaint and potentially to be called as witnesses. Nothing I have heard is of such import that it should serve to displace the principle that proceedings at the Commission are open and transparent. If a generalized concern for one's reputation or the possibility that one may raise a concern with a professional or registration body was reason to seek and be granted a suppression order, very few proceedings of the Commission would be public. The same could be said for the State's argument in favour of suppression where matters involve untested allegations. At this stage, all I have before me from the State are some predictions of things that may occur in relation LAQ and its staff, as delivered through an affidavit of a Crown Lawyer and the submissions of Counsel engaged for the matter.  Ms Mohr-Edgar is herself an employee of LAQ and is also legally trained.  She resists this application, however, even if she did not, I would still be reluctant to make orders of such a nature as those sought in response to a set of predictions as has been put before me.
  1. [35]
    The Respondent argues that s 25 of the Human Rights Act 2019 should be considered in determining whether to allow the suppression order. Section 25 refers to the right to not have the person's privacy, family, home or correspondence, or reputation unlawfully or arbitrarily interfered with or attacked.  Ms Mohr-Edgar has brought her complaint forward through the proper processes and appears to be genuine in her belief that she has been discriminated against. It is unclear to me what is unlawful or arbitrary about the approach she has taken.  I do not find that the application of s 25 in the current circumstances leads to a conclusion that the orders sought should be made. 
  1. [36]
    I note the arguments of the State regarding the role LAQ plays and the importance of public confidence in the organisation, its senior officers and other staff.  At this early stage in proceedings, I am not convinced that anything so far put forward by Ms MohrEdgar would serve to undermine public confidence in the organisation.  
  1. [37]
    My concern is not only the breadth of the orders sought by the State at this early stage in the proceedings, but that the framing of the orders sought has already contemplated a scenario where an application is brought to extend the orders. I note the comments of Fisher IC in Weston and Parer (No. 2):

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….[7]

  1. [38]
    With regard to suppression of any material regarding clients of LAQ, I am of the firm expectation that both parties should be continuing to take whatever steps are necessary to redact relevant documents to ensure complete confidentiality for clients.  To this extent, and I note that at this stage there have been no witness lists exchanged or outlines of evidence provided and in fact, Ms Mohr-Edgar has indicated that she does not intend to call any client as a witness.  In the event that such material or evidence is called and either party is of the opinion that redaction of names is not sufficient to protect clients, I will hear from the parties and consider how to proceed. 
  1. [39]
    At this stage, I am unwilling to grant orders in any of the forms put forward by the State in their application. There may be occasion as the matter proceeds for a suppression or anonymity application to be made in relation to particular parts of evidence or documents that are to come before the Commission.  The appropriate time to consider whether the making of such an order is necessary or appropriate will be as the circumstances arise. This was the approach taken by Fisher IC in Weston and Parer (No. 2) and I find that it is the best course of action here. 
  1. [40]
    The Application within existing proceedings is dismissed.  

Footnotes

[1] [1995] Qd R 10.

[2] J v L &  A Services Pty Ltd  (No 2) [1995] 2 Qd R 10; Seven Network (Operations) Limited and Ors v James Warburton (No 1) [2011] NSWSC 385; Paxton v Children's Health Queensland, Hospital and Health Service (No 3) [2020] QIRC 28

[3] Seven Network (Operations) Limited and Ors v James Warburton (No 1) [2011] NSWSC 385.

[4] Paxton v Children's Health Queensland, Hospital and Health Service (No 3) [2020] QIRC 28 [80]-[82]. 5 Weston and Parer v State of Queensland (DJAG) (No. 2) [2016] QIRC 056 [22].

[5] Bero v Wilmar Sugar Pty Ltd [2016] QCAT 371.

[6] Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371 [190]-[191].

[7] Weston and Parer v State of Queensland (DJAG) (No. 2) [2016] QIRC 056 [21].

Close

Editorial Notes

  • Published Case Name:

    Mohr-Edgar v State of Queensland (Legal Aid Queensland)

  • Shortened Case Name:

    Mohr-Edgar v State of Queensland (Legal Aid Queensland)

  • MNC:

    [2020] QIRC 136

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    31 Aug 2020

Appeal Status

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

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