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

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

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Paxton v Children's Health Queensland, Hospital and Health Service (No 3) [2020] QIRC 028

PARTIES: 

Paxton, Brian

(Applicant)

v

Children's Health Queensland, Hospital and Health Service

(Respondent)

CASE NO:

B/2019/50

PROCEEDING:

Application in existing proceedings by Respondent

DELIVERED ON:

21 February 2020

HEARING DATES:

30 January 2020

MEMBER:

Thompson IC

ORDERS:

Application is refused.

CATCHWORDS

INDUSTRIAL LAW - APPLICATION FOR INJUNCTION - APPLICATION IN EXISTING PROCEEDINGS BY RESPONDENT - where respondent seeking decision be removed from Supreme Court Library website and not be published or amended to apply a pseudonym for the complainant - where principle of open justice - whether applicant established requisite standard of proof.

LEGISLATION:

Industrial Relations Act 2016, s 451, s 580

Public Disclosure Act 2010 (Qld), s 13, s 28, s 55, s 65

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

CASES:

Brian Paxton v Children's Health Queensland, Hospital and Health Service [2020] QIRC 008

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

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

R v Tait (1979) 46 FLR 386, cited

Kelsey v Logan City Council and Another (No 2) [2018] QIRC 017

Queensland Nurses' Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (Nos. B1019 of 1998, B1298 of 2000, B1299 of 2000) (2000) QGIG 75

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

Amie Mac v Bank of Queensland Limited;  Michelle Locke; Matthew Thompson;  Stacey Hester;  Christine Van Den Heuvel;  Jane Newman [2015] FWC 774

Daniel Krcho [2020] FWC 181

Simon Owen [2019] FWC 8567

APPEARANCES:

Ms T. Bidgood and Ms K. Stewart, Susan Moriarty & Associates for the Applicant.

Mr M. McKechnie, Counsel instructed by Ms H. Smith, Minter Ellison for the Respondent.

Decision

 Background

  1. [1]
    An application in existing proceedings was filed with the Industrial Registrar on 22 January 2020 by Children's Health Queensland Hospital and Health Service (CHQHHS) in which orders were sought pursuant to s 580(5) of the Industrial Relations Act 2016 (IR Act) that:
  1. The decision of Commissioner Thompson dated 15 January 2020 (Brian Paxton v Children's Health Queensland, Hospital and Health Service [2020] QIRC 008 (Decision) be removed from the Supreme Court Library website.
  2. The Decision not be published.
  3. In the alternative, the Decision be amended to apply a pseudonym for Ms Brianna Gray (Amended Decision).
  4. The Amended Decision be published.
  1. [2]
    An affidavit sworn by Victoria Hepburn (dated 22 January 2020) accompanied the application and deposed the following:

a. Ms Brianna Gray is currently employed by the Respondent as a Graduate Social Worker.

b. Ms Gray made a number of allegations regarding the behaviour and conduct of the Applicant in these proceedings towards her.

c. The proceedings commenced by the Applicant centered on the commencement and validity of the process followed by the Respondent in relation to these allegations.

d. Ms Gray was not required to give evidence in the proceedings.

e. Ms Gray is in a vulnerable position with respect to the allegations themselves as well as the ultimate outcome of this matter.

Submissions

CHQHHS

  1. [3]
    Written submissions were attached to the application supporting the position advanced by the applicant.

Background

  1. [4]
    The proceedings in question related to an investigation and disciplinary process involving the applicant (Paxton) which followed a complaint from Ms Brianna Gray (Gray).  At all material times Gray was either a student completing practical work experience or a junior employee of the CHQHHS and not a party to the proceedings.
  1. [5]
    In March 2019 Gray made complaints regarding Paxton's conduct towards her which she asserted made her feel unsafe in her workplace.  The complaints included allegations that Paxton:
  • suggested on a number of occasions he had power or influence over Gray's future career with the Health Service;
  • engaged with Gray in an overly personal manner by the use of gestures and pet names;
  • frequently positioned himself in very close proximity to Gray, initiated unwelcome physical contact;
  • questioned Gray about her travel arrangements to and from work on multiple occasions, and routinely made unnecessary and unwelcome offers to drive her home in spite of constant refusals; and
  • routinely initiated informal and personal conversations with Ms Gray in a manner that was unnecessarily exclusive.
  1. [6]
    As a result of the complaints, Paxton was suspended on full pay from 9 July 2019 and required to show cause why he should not be disciplined.  He commenced proceedings by application on 5 August 2019 about the commencement and validity of the process followed by the CHQHHS in relation to Gray's complaint.
  1. [7]
    The matter was heard by the Commission as constituted on 27 November 2019 and given the narrow procedural issues in dispute, Gray was not called to give evidence in the matter, nor was the content of her allegations addressed or considered by the Commission.
  1. [8]
    On 15 January 2020 the Commission provided the parties with a written decision in the matter in which Gray was identified by name in the decision, with the decision being published on the Supreme Court Library website and case law data base.

Jurisdiction

  1. [9]
    The submissions identified the relevant legislation as s 580(5) and (7) of the IR Act:
  1. (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. (7)
    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. [10]
    In the matter of J v L & A Services Pty Ltd,[1] the Queensland Court of Appeal outlined six principles governing the exercise of the discretion to make suppression orders:
  1. (a)
    . . . [The] 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.
  1. (b)
    Publicity may be prohibited when it would frustrate the purpose of a court proceeding by preventing the effective enforcement of a substantive law and depriving the court's decision of practical utility.
  1. (c)
    The permitted exceptions are based on the actual loss of practical utility of the proceeding, 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.
  1. (d)
    No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. (e)
    Different degrees of restraint are permissible for different purposes.  The three broad categories are as follows:
  1. (i)
    '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.
  1. (ii)
    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.
  1. (iii)
    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.'[2]
  1. (f)
    . . . [I]nformation 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' (see R v Tait).[3]

Current application

  1. [11]
    Persons outside of the parties to the dispute do not have a sufficient legitimate interest in knowing the identity of Gray to warrant the publication of her identity in these proceedings.  The suppression of her name would be no loss of utility and the impact on Gray goes beyond collateral disadvantage or loss of privacy.
  1. [12]
    Given the nature of Paxton's application, which targeted the process conducted by the CHQHHS in relation to the allegations on grounds that it was allegedly inadequate, flawed and contrary to the relevant legislative requirements, there had not been a need for the Commission to consider whether or not the allegations were substantiated.  Therefore there was no requirement for Gray to attend as a witness in the proceedings and her identity was in no way directly material to the decision.
  1. [13]
    There was no legitimate public interest in the publication of Gray's identity to persons other than the parties to the dispute, particularly in circumstances where the allegations were effectively "untested".  A significant prejudice would be caused to Gray by the publication of her identity as she was in a vulnerable position with respect to the allegations she had made against Paxton and in particular the information provided to the Commission in respect of the impact the alleged conduct was said to have had on her.  Publication of her identity may expose her to unwanted attention and speculation which would be unwarranted where she had no direct role in the process complained of by Paxton.
  1. [14]
    It was acknowledged that the decision had already been published on the Supreme Court Library website although the CHQHHS were unaware at this time if it had been accessed by the media or other interested parties.
  1. [15]
    In oral submissions the circumstances of Gray were measured against J v L A Services Pty Ltd[4] with it being suggested that:
  • applying a pseudonym to Gray would have no practical effect on the judgement in terms of the principles of open justice;
  • her identity was not of significance in the matter;
  • it imposes no unnecessary restriction on public access or publicity in respect of the proceedings; and
  • she was not a party to the proceedings or a witness in the proceedings.
  1. [16]
    It was accepted that the core aspect of public justice was that information should not be withheld from the public merely to save a party or a witness from loss of privacy, embarrassment, distress, financial harm and other collateral disadvantage.  In this case however Gray was neither a party nor a witness so the principle would have no application.
  1. [17]
    The following exchange then occurred between the Commission and Counsel appearing for the CHQHHS:

COMMISSIONER:  Well, that begs the question for me at least, on what basis do you make an application on behalf of Ms Gray?  I mean, you've put an appearance in here today, you've made an application.  And in each of those cases it hasn't been on behalf of Ms Gray;  it's been on behalf of the respondent in the substantive matter.  So on what basis do you make the application for, and the concerns you have for Ms Gray?  On what basis?  I mean.

MR McKECHNIE:  It's on the basis of acting for her employer and her employer looking out for her interests.

COMMISSIONER:  Well, that employer might well have a couple of thousand employees.  And does that mean that that employer at any time can decide that they want to act on behalf of an employee in a proceedings or whatever?  There's nothing before me from Ms Gray indicating that she had issues at all in respect of this, not in any of the material that was provided.  And I don't - I wonder what standing the application has in respect of the - you know, the - you've been instructed, obviously, by solicitors acting for the employer, but it's absent of anything, at least that's been provided to me, in respect of Ms Gray.

MR McKECHNIE:  And I take your point on that, Commissioner.  And I - just one moment, Commissioner.  Commissioner, I'd have to accept that that's a gap in the material as it currently stands.  And it is probably one of those matters that needs further material put on.  You know, whether that's, sort of - well, probably a combination, both of something directly from Ms Gray to satisfy you that these orders are sought on her instructions, and some further submissions about what the law says about the standing of my client to actually apply for those orders in those circumstances.  I can't help you with that law off the top of my head now, Commissioner.[5]

Counsel informed the Commission that he was "not instructed this morning to appear on behalf of Ms Gray".[6]

  1. [18]
    Further in oral submissions, the matter of Kelsey v Logan City Council (Kelsey No 2) was cited in terms of Fisher C declining to make more broad sweeping suppression orders on the basis of the principles of open justice, but deciding to suppress the names of employees who were said to have provided information about the alleged conduct:

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.[7]

  1. [19]
    In this case the reliance on Kelsey was only in terms of the principle of not a complete suppression but just that of an individual to protect their interests when they weren't actually a party to the proceedings.
  1. [20]
    Counsel sought a period of one week to allow the CHQHHS to provide further material by way of affidavit and submissions dealing with the question of standing and representation.

Further Written Submissions (CHQHHS)

Power to make an order

  1. [21]
    The Commission generally operates under the principles of open justice, however under the IR Act, the Commission is granted a general discretion to make a direction regarding the publication, release or search of documents if it considers it necessary to do so pursuant to s 580(7)(a) and (b) of the IR Act:
  1. (a)
    disclosure of the matter would not be in the public interest; or
  2. (b)
    persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.
  1. [22]
    The relevant provisions do not contain any limitation as to who may apply for an order of this nature under the IR Act, with the Commission open to order Gray's name be anonymised in relation to references to her in the decision of the Commission released on 15 January 2020.[8]

Basis of Application

  1. [23]
    The complainant was not a party nor a witness in the proceedings with the application to suppress her name made by CHQHHS as her employer and consistent with its duty of care to her, applicable policies and statutory obligations to ensure health and safety in the workplace of the complainant (and other workers).
  1. [24]
    The complaint had been made in connection with her employment and in dealing with it the CHQHHS, consistent with their policy documents, had taken steps to ensure the details of the complaint as well as the complainant's and Paxton's identities were kept confidential within the organisation as far as possible.
  1. [25]
    The complaint was also assessed and determined to be a public interest disclosure under s 13 of the Public Interest Disclosure Act 2010 (Qld) (PID Act) where under that Act the identity of a person who makes a public interest disclosure is "confidential information" that may only be disclosed in specific circumstances listed in s 65(3) of the PID Act which includes a proceedings in a court or tribunal.  There was sufficient basis for the making of this application in existing proceedings.

Commission should grant application

  1. [26]
    The identity is in no way directly material to the decision and as outlined previously the decision does not address the substance of the complaint, rather it concerns the process followed by the CHQHHS in managing the complaint.
  1. [27]
    Critically, the complainant is likely to be caused significant distress by being named in the decision.  In her statement (dated 8 July 2019) she relevantly stated:
  1. (a)
    was scared to challenge the Applicant on his behaviours or to discuss these matters face to face;
  2. (b)
    only made a complaint after she felt the Applicant's alleged behavior had 'crossed a line';
  3. (c)
    was 'emotional, scared and overwhelmed' when she discussed her concerns with her supervisor;
  4. (d)
    put off notifying Mr Tim Wood 'for as long as possible' as she was uncertain about what would happen; and
  5. (e)
    felt that she could not tell anybody about her experience as she was 'extremely scared of the prospect of being required to meet [the Applicant] to discuss these issues'.

It is evident that the complainant's statement had caused her considerable distress to make a formal complaint and she wished to keep her identity from becoming known.

  1. [28]
    The circumstances in this case were similar to those in Kelsey (No 2) in that the employees were not parties nor witnesses in those proceedings, rather they had provided information to the applicant (Kelsey) which formed part of her public interest disclosure.  As such, the position of those employees with respect to the proceedings was directly analogous to the complainant's position in the present proceedings.
  1. [29]
    The decision of the Commission in Kelsey No 2 in suppressing the names of those employees did so in circumstances where the Commission did not address whether any of the parties had standing to apply for orders with respect to the employees' names and it does not appear that the employees themselves made any submissions or gave evidence to support the application.
  1. [30]
    The decision of the Commission in Kelsey No 2 to grant the application was entirely consistent with the approach of the Commission and the Fair Work Commission in making suppression orders.  It is therefore open to the Commission to apply a pseudonym for the complainant, consistent with s 580(7)(b) of the IR Act and in doing so adopting a similar approach to that taken in QNU v QCCI[9] where evidence was published but on a de-identified basis.

Conclusion

  1. [31]
    The orders sought were as follows:
  1. (a)
    The Decision be removed from the Supreme Court Library website.
  2. (b)
    The Decision be amended to apply a pseudonym for Ms Gray (Amended Decision).
  3. (c)
    The Amended Decision be published on the Supreme Court Library website.
  4. (d)
    The Commission apply a pseudonym for Ms Gray in its decision in respect of the Application.

Paxton

Overview

  1. [32]
    On 22 January 2020 the CHQHHS applied for orders to suppress references to Gray in the decision of the Commission (dated 15 January 2020) suggesting the use of a pseudonym.  The initial approach was that the suppression be pursuant to s 580 of the IR Act, however in written submissions the CHQHHS expounded the alternative ground that Gray had made a disclosure within the meaning of s 13(1) of the PID Act.  The latter submission comes after conceding earlier that the PID Act had no application in these proceedings.
  1. [33]
    This response deals within s 580 of the IR Act and the PID Act separately.

Confidentiality under the IR Act

  1. [34]
    The Commission is empowered to restrict from publication evidence given, or records tendered in proceedings.  Relevantly s 580(5), (6) and (7) of the IR Act states:

580 Confidential material tendered in evidence

  1. (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
  2. (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. (7)
    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. [35]
    The power to make orders under s 580 of the IR Act is discretionary in nature, however common law imposes a substantial threshold before such a discretion is enlivened.  The nature of that threshold is underpinned by the principle of open justice as identified by this Commission in its decision of 11 February 2020, the unabridged publication of records of proceedings is the primary intention and ought only be displaced in extraordinary circumstances.
  1. [36]
    In the seminal authority on the issue J v L & A Services Pty Ltd,[10] the Queensland Court of Appeal listed the principles associated with suppression holding that "no unnecessary restriction upon public access or publicity in respect of court proceedings is permissible".[11]  Further, the court reinforced the principle of open justice:

. . . 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 proceedings and others who may be affected.[12]

Essentially, the Court held that if the open reporting of proceedings resulted in distress or discomfort to a witness, such discomfort was part of "living in a free, democratic society".[13]

  1. [37]
    The primacy of open justice establishes a strong threshold to be met prior to the suppression of information.  Importantly, the mere distress or presumed distress of a witness was insufficient to warrant the displacement of the open justice principle.
  1. [38]
    The scope of open justice had been considered by appellate courts, specifically:

The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained.[14]

  1. [39]
    The primacy of open justice is a principle which the legal authorities fiercely protect from casual erosion and to enliven the discretion to suppress information requires exceptional circumstances.

CHQHHS Submission

  1. [40]
    There was limited evidence of the purported impact of the publication relied upon to warrant the suppression:
  • apart from the parties to the proceedings, there is no legitimate interest in the identity of Gray;
  • suppression of Gray's name does not adversely impact the administration of justice;
  • the nature of the application does not require the publication of Gray's identity;
  • Gray was not a witness in the proceedings;
  • Gray was a "vulnerable person" with the substantive allegations said to have had an impact on her; and
  • publication of her identity may result in unwanted attention and speculation.
  1. [41]
    The submissions do not contain material that was capable of meeting the threshold of a "special case" and on balance the principles of open justice must be favoured as outlined by the courts in Seven Network (Operations) Limited & Ors v James Warburton (No 1)[15] and J v L & A Services Pty Ltd.[16]  Something more than mere inconvenience, or the observation that some information was subjectively superfluous, is required to enliven the discretion.
  1. [42]
    The proposition that Gray was a vulnerable person because of her age, gender and status as a workplace harassment complainant, does not place her in an unusual position.  The Commission routinely deals with sexual harassment complaints, reinstatement proceedings and other industrial disputes which relate to the identity of persons who have made complaints.  It cannot be observed that Gray is in a different class of complainant.
  1. [43]
    There was no evidence of the purported vulnerability nor had the scope of the vulnerability been explained, which might place Gray in a special class of complainant warranting the extraordinary measure of suppression of identity.
  1. [44]
    The reference to Gray receiving "unwarranted attention" and "speculation" was also not explained however her circumstances are no different to those of any other complainant, namely, the details of a complainant are published in the course of assessing the dispute before the Commission.
  1. [45]
    If the publication of Gray's name was to cause inappropriate attention in the workplace, it was a matter the employer should address with relevant staff rather than seeking to displace the primacy of open justice.  It would appear the submission was no more than stating Gray may be distressed or suffer an erosion of her personal privacy should her identity be published.  However, these impacts were insufficient to displace the principle of open justice.
  1. [46]
    Recently in the Fair Work Commission it had been determined that in the absence of evidence of special harm which may occur in the absence of a suppression order, such an order ought not be made.[17]
  1. [47]
    Generally, it may be observed the allegations of Gray are "live" and "strongly contested" matters in the proceedings.  The published judgements have made the nature of the contest clear, namely, these are untested and ongoing allegations.  The allegations of Gray are not collateral to the proceedings, and their centrality to the proceedings are a substantial factor against the suppression of the detail.
  1. [48]
    Similar to the reasoning of this Commission on 11 February 2020, the text of the decision provides clarity on the nature of the allegations, which clearly stated that the allegations were to be the subject of a future investigation; such clarification is a safeguard against much of the alleged damage.
  1. [49]
    There was seemingly insufficient grounds to warrant the displacement of the primacy of open justice.

Other observations

  1. [50]
    The substantive dispute had an extensive procedural history of beyond 12 months in which Paxton had disputed the handling of the matter including two separate applications before the Commission.  Notwithstanding the matter being listed before the Commission on four occasions and numerous written submissions, the CHQHHS failed to raise any extraordinary requirement to have Gray's name suppressed.  Further, there was no evidence called from Gray regarding any specific harm she may have suffered from the continued publication of her name.

Conclusion of IR Act

  1. [51]
    The primary consideration for suppression of information in a proceeding is that of open justice.  Such consideration may be displaced by the circumstances of the case; however it would require some factor which establishes the extraordinary case.  The distress, embarrassment or discomfort of a witness is insufficient, at law, to warrant the suppression of information.
  1. [52]
    An order to suppress information in a proceeding is not of a question of the consent of the parties, but rather a question of law and is a matter for the Commission to determine alone  The discretion to make a suppression order has not been enlivened.

Application of PID Act

  1. [53]
    The CHQHHS in their submission (dated 7 February 2020) for the first time raised that Gray had made a disclosure within the meaning of s 13 of the PID Act in that Gray's complaint was a disclosure of a kind which met the requirements of the Act:

13 Disclosure by a public officer

  1. (1)
    This section applies if a person who is a public officer has information about -
  1. (a)
    the conduct of another person that could, if proved, be -
  1. (i)
    corrupt conduct; or
  1. (ii)
    maladministration that adversely affects a person’s interests in a substantial and specific way; or
  1. (b)
    a substantial misuse of public resources . . .; or
  1. (c)
    a substantial and specific danger to public health or safety; or
  1. (d)
    a substantial and specific danger to the environment.
  1. [54]
    No attempt was made to explain the classification of Gray's disclosure with Paxton submitting that Gray's complaint failed to meet the threshold of s 13(1) of the PID Act.
  1. [55]
    It was trite to observe not all workplace complaints were capable of meeting the definition of a public interest disclosure, rather the operation of the PID Act was reserved for serious and substantial misconduct.  Section 13(1) of the PID Act provides the exhaustive threshold to engage the residual protection of the PID Act.
  1. [56]
    If the CHQHHS sought to apply s 13(1)(a) of the PID Act to Gray's statement, it was incumbent on them to particularise either:
  • the nature of the corrupt conduct (s 13(1)(a)(i)); or
  • the maladministration that caused some adverse effect, and the substantial manner in which it caused an impact.
  1. [57]
    The failure to stipulate the nature of the disclosure created a difficulty in terms of making a response.  However, it may be observed that the classification of Gray's complaint as a public interest disclosure appears to be an afterthought.  Gray's status as a public interest discloser had not been previously raised and the CHQHHS only sought to classify the complaint as a disclosure after the oral hearing of this matter, at which it had been conceded she was not covered by the PID Act.
  1. [58]
    The handling of the complaint was consistent with Gray's allegations being deemed as falling outside the PID Act namely:
  • CHQHHS had not instigated their internal processes pursuant to s 28 of the PID Act, instead dealing with the allegations as a workplace complaint;
  • the complaint was not handled by the PID officer within the organisation;
  • CHQHHS in multiple pieces of correspondence failed to identify how, if at all, the allegations were a relevant disclosure; and
  • prior to the CHQHHS final written submissions, the Commission had not been addressed on the PID Act which is of particular relevance where, it may be observed, the engagement of the PID Act would likely have aided submissions on the operation of s 189(1) of the PS Act in the proceedings.
  1. [59]
    Accordingly, the PID Act does not apply as the statement of Gray was not capable of meeting the requirements of s 13(1) of the PID Act and as such confidentiality orders ought not be made in reliance on the PID Act.

Conclusion

  1. [60]
    This application was filed on 22 January 2020 some seven days after the release of the substantive decision on 15 January 2020 to the parties and two days beyond when the decision was published on the Supreme Court Library website.
  1. [61]
    The substantive matter which prompted the application to suppress Gray's name had been the subject of a mention on 23 August 2019 and subsequently heard on 27 November 2019.  In the period prior to hearing the parties, by agreement, filed written pre-hearing submissions and at the conclusion of the evidentiary stage of the proceedings further written submissions were provided.  Neither in the course of the proceedings or in any of the previously referenced submissions, had the CHQHHS raised the issue of a pseudonym with regard to Gray or any concerns about the decision of the Commission being published.
  1. [62]
    In the substantive hearing the CHQHHS had relied upon evidence from the Executive Director of Clinical Services - Dominic Tait (Tait), who in his role had the direct responsibility relating to the overall performance and operational functioning of the Children's Hospital, with that evidence being absent of any concerns held or may have been held regarding the publication of Gray's name in the decision emanating from those proceedings.  Further, compounding the lack of concern being raised was that Tait, the initial delegate appointed to undertake the process of determining the way forward, as a consequence of the allegations levelled against Paxton, undertook a consultation process which involved senior levels of management including two Directors and the Manager of Human Resources, People and Culture.
  1. [63]
    Tait provided limited evidence in relation to the content of those consultations and clearly his evidence lacked any passing reference to the issue of confidentiality in the naming of Gray.  In circumstances where there was an awareness of the allegations about Paxton's alleged conduct in the workplace it certainly would not be unreasonable to expect, for example, that a Manager of Human Resources would be alive to an issue of this nature.
  1. [64]
    A fresh set of eyes in the form of the Chief Financial Officer - Alan Fletcher (Fletcher) became involved in the disciplinary process when approached by the Senior Director of Human Resources and requested to act as the decision maker, regarding whether Paxton would be required to respond to a Show Cause Notice as a result of Gray's complaint about his conduct in the workplace.
  1. [65]
    Fletcher had access to significantly more material than Tait, in particular an expanded complaint document from Gray (dated 8 July 2019) and as a senior member of CHQHHS management team with responsibilities for financial control, governance, operational performance and key performance indicators in the workplace, he would have been in a position to cast his mind to the potential ramifications for Gray with the publication of her name in the decision of the Commission, and yet Fletcher's evidence in the proceedings ignored the subject of the current application totally.
  1. [66]
    There had been no evidence in the proceedings to date which offered any support for the proposition now pursued by the CHQHHS, that the Commission ought exercise a discretion in the form of applying a pseudonym for Gray or for removing the decision from the Supreme Court Library website.

Standing to make application

  1. [67]
    In hearing the application on 30 January 2020, the Commission raised with Counsel for the CHQHHS on what basis were they able to make an application for the use of a pseudonym in respect of Gray when the application identified the employer as the applicant and in appearances there had been leave sought only on behalf of the employer and not Gray.  The Commission was informed the CHQHHS was "looking out for her [Gray's] interests"[18] but there was acceptance of the position advanced by the Commission that "[t]here's nothing before me from Ms Gray indicating that she had issues at all in respect of this, not in any of the material provided".[19]
  1. [68]
    The CHQHHS indicated that there needed to be further material "put on" with Counsel regarding this issue going on to state "well, probably a combination, both of something directly from Ms Gray to satisfy you that these orders are sought on her instructions, and some further submissions as to what the law says about the standing of my client to actually apply for these orders in those circumstances".[20]
  1. [69]
    A Directions Order was issued by the Commission on 30 January 2020 which provided the CHQHHS with seven days to provide further written submissions.
  1. [70]
    The further submissions indicated that Gray was not a party or a witness in the proceedings and the application to suppress her name was made in their capacity of being her employer and "consistent with its duty of care to her and applicable policies".  It was also submitted that the employer had "statutory obligations to ensure that the complainant's (and other workers') health and safety so far as is reasonably practicable at work".  Interestingly, the CHQHHS chose not to provide in the proceedings the policies referred to in their submissions.
  1. [71]
    I don't intend for the purposes of this decision to make a finding on the standing of the CHQHHS to make representations on behalf of Gray without any obvious authorisation by her, but for the record I note that they were given seven days to seek such authorisation and "came up empty".

Pseudonym and open justice

  1. [72]
    On 29 January 2020 an application similar in nature to this application was filed by Paxton in which it was sought amongst other things that the Commission apply a pseudonym for him rather than have his identity revealed in the decision released by the Commission on 15 January 2020.
  1. [73]
    Whilst there were differences in the circumstances of Paxton and Gray, none more so than one being a party to the proceedings and the other in some respects collateral to the proceedings as a person who had made a complaint against another in respect of alleged workplace conduct.  The requirements to enliven the discretion of the Commission however were identical in that it was necessary to establish there were substantial reasons why such discretion ought to be exercised.
  1. [74]
    The case made by the CHQHHS in terms of Gray can be best summarised as being exposed to conduct (alleged) that wasn't sexual in nature but at a level where Paxton had:
  • suggested he had the power or influence over her future employment prospects with the employer;
  • engaged in the use of gestures and pet names with Gray;
  • frequently positioned himself in close proximity to Gray, initiating unwelcome physical contact;
  • questioned Gray on her travel arrangements to and from home and made unnecessary and unwelcomed offers to drive her home in spite of constant refusals; and
  • initiated informal and personal conversations with Gray in a manner that was unnecessarily exclusive.
  1. [75]
    None of the aforementioned forms of conduct could on the requisite standard of proof confirm the existence of substantial reasoning to support the exercise of the Commission's discretion in applying a pseudonym to Gray.
  1. [76]
    The Commission relies upon the authorities contained in Paxton v Children's Health Queensland, Hospital and Health Service (No 2) (Paxton No 2)[21] which are reproduced here:

In the matter of J v L & A Services Pty Ltd, Fitzgerald P and Lee JA stated:

... . The use of pseudonym initials, beyond cases clearly allowed and in courts having the power to order them, is a significant departure from the norm.  It would be undesirable that powerful individuals, substantial corporations or particular witnesses promised anonymity by the authorities, could secure such orders without authority of law and then only for very substantial reasons. Cf David Hunt J. in Savvas at 339.  In my opinion neither of these preconditions was present here.  There was no authority of law. Nor were there substantial reasons.  On the contrary, the law of the State as declared by this Court in the Police Tribunal Case and affirmed in Mayas forbad such an order. ... .

Mahoney JA said at p. 23:

"The power to make orders for concealment of the identity of persons has been exercised by superior courts in various circumstances. Reference was made to the general power which the superior courts have in this regard in John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (1986) 5 NSWLR 465 by McHugh JA, with whose judgment Glass JA agreed: at p.476-9; and by me: at 471-4. The power to make a pseudonym or analogous order has been exercised in relation to the identity of an informer: see generally Cain v. Glass (No.2)  (1985) 3 NSWLR 230 at 246 et seq; in relation to blackmail: R v. Socialist Worker Printers and Publishers Ltd.: Ex parte Attorney-General  (1975) QB 637; . . ."

Their Honours went on to espouse the test articulated by McHugh JA in John Fairfax and Sons Ltd v Police Tribunal of New South Wales in considering the powers of a statutory tribunal:

Subsequently, his Honour said that the principle of open justice required that "an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it": at 476-7.  Reference was also made to the implication of powers in this way in Attorney-General for New South Wales v. Mayas Pty. Ltd. (1988) 14 NSWLR 342.

Therefore, in considering whether the power to make a pseudonym order of the present kind in an extortion case is, in the sense to which Dawson J. and McHugh JA have referred, a power impliedly granted to the Local Court, it is necessary to consider whether the making of a pseudonym order can in principle be "really necessary to secure the proper administration of justice in the proceedings" before a Local Court . . .. (references omitted)

Kelsey v Logan City Council (No 2)

  1. [77]
    Supportive of their application to have Gray given a pseudonym, the CHQHHS placed reliance on a decision of Fisher C in Kelsey No 2[22] which had the effect of suppressing the names of a number of employees who were said to have provided Kelsey with information about certain alleged conduct subsequent to a public interest disclosure being made by Kelsey.
  1. [78]
    The circumstances of those employees were significantly different to Gray in that she was a complainant in her own right in the substantive proceedings, whereas those in Kelsey were alleged to have given certain information to another party who utilised that information as content in her public interest disclosure.
  1. [79]
    The authority of Kelsey does not benefit the position of the CHQHHS in this application.

Open Justice

  1. [80]
    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.
  1. [81]
    The authorities relied upon in Paxton No 2[23] are reproduced here for the purposes of this decision:

In Health Ombudsman v Shemer (No 2), Allen J stated the exercise of discretion pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) relies on the principle of open justice:

"Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the open administration of justice, freedom of speech, a free media and an open society require the court proceedings to be open to the public and able to be reported and discussed publicly."

"… 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'…"

"… an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light.

Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders and their various alternative forms."

In Police v Baden-Clay, Butler J, Chief Magistrate stated in respect of the open justice principle:

The principle of open justice is fundamental to our legal system.  The common law has established limited exceptions to the obligation of courts to sit in public and the freedom to report proceedings but the list of exceptions is limited.  Parliament can, of course, legislate for further exceptions.  However, in view of the importance of the principle of open justice any statutory provision should be construed strictly in accordance with its declared purpose. (references omitted)

  1. [82]
    The application was not supported by grounds sufficient to warrant a departure from the well-established practice in the Commission of providing non-suppressed decisions in circumstances such as these and there were no reasons advanced to disturb the principles of open justice.

Vulnerable person

  1. [83]
    Submissions were provided in the course of the application by CHQHHS which supported a proposition that if Gray's name remained published she was in a vulnerable position, by potentially being exposed to "unwanted attention" and "speculation" presumably in her current workplace in circumstances where she had no direct role in the process complained of by Paxton.
  1. [84]
    In addressing the argument put forward by CHQHHS about Gray's alleged vulnerability, the submissions of Paxton raised issue with the lack of explanation around "unwanted attention" and "speculation" and further, that a case had not been made where it was established Gray was a special class of complainant warranting the extraordinary measure of the suppression of her identity.
  1. [85]
    I accept the reasoning advanced on behalf of Paxton in relation to vulnerability surrounding Gray and endorse their proposed solution, should a situation arise where she became the recipient of inappropriate attention in the workplace, it would be a matter for the employer to address with relevant staff.

Public Interest Disclosure

  1. [86]
    In the further written submissions filed by the CHQHHS it was raised for the very first time that the complaint made by Gray about alleged inappropriate conduct in the workplace engaged in by Paxton was a public interest disclosure.  This was by its very nature an "eleventh hour" proposition, not supported by material, provided in any facet of these proceedings to date and in fact material relied upon by the CHQHHS previously contradicts the proposition that the complaint against Paxton was ever considered to be a public interest disclosure.
  1. [87]
    In the first Show Cause Notice issued to Paxton (dated 11 March 2019) under the signature of Tait (subsequently withdrawn) it stated:

 Suspension from duty

 Section 189(1) of the Public Service Act 2008 (the Act) provides that an employee may be suspended from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.

 I reasonably believe due to the nature of the allegations you may be liable to discipline and it would not be appropriate for you to remain in the workplace due to the concerns I have about your alleged conduct.  Accordingly, pursuant to section 189(1) of the Act, I have decided to suspend you from duty on full pay, effective immediately.

  1. [88]
    In the revised Show Cause Notice issued to Paxton (dated 9 July 2019) under the signature of Fletcher and which remained current at the hearing of the substantive application on 27 November 2019, the following was stated:

 Show cause decision

 On review of Ms Brianna Gray's statement dated 5 July 2019 (attached), I have decided that you may be liable to discipline pursuant to sections 187 and 188 of the Public Service Act 2008 (PS Act) in relation to your conduct towards Ms Gray which gives rise to serious allegations concerning your professional behavior and obligations.

 The purpose of this letter is:

  1. (a)
    to inform you of the allegations against you which I consider may, if made out, make you liable to discipline under the PS Act;
  2. (b)
    to provide you with an opportunity to respond to each of the allegations; and
  3. (c)
    to outline the reasons for my view that the allegations may give rise to a disciplinary outcome.
  1. [89]
    It is unambiguous that each of the Show Cause Notices referred only to the PS Act as the vehicle in which Gray's complaint against Paxton would be progressed and the PID Act was obviously not on the radar of the CHQHHS at those times.
  1. [90]
    No basis was established by the CHQHHS for the proposition that Gray's complaint met the requirements of s 13(1) of the PID Act to be considered as a public interest disclosure, with the said proposition clearly debunked by Paxton's opposition to this aspect of the application, set out at paragraph 58 of this decision:
  • CHQHHS had not instigated their internal processes pursuant to s 28 of the PID Act, instead dealing with the allegations as a workplace complaint;
  • the complaint was not handled by the PID officer within the organisation;
  • CHQHHS in multiple pieces of correspondence failed to identify how, if at all, the allegations were a relevant disclosure; and
  • prior to the CHQHHS final written submissions, the Commission had not been addressed on the PID Act which is of particular relevance where, it may be observed, the engagement of the PID would likely have aided submissions on the operation of s 189 of the PS Act in the proceedings.
  1. [91]
    The reliance by the CHQHHS on the PID Act is without merit and not supported by evidence or material in any of the previous proceedings or this application and therefore is rejected by the Commission.

Finding

  1. [92]
    Having given consideration to the material and submissions placed before these proceedings, it is found that the applicant for reasons embodied in this decision failed to establish grounds sufficient for the granting of the application in any form.
  1. [93]
    The application is refused.

Footnotes

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

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

[3] R v Tait (1979) 46 FLR 386.

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

[5] T3-5, L8-35.

[6] T3-5, L44-45.

[7] Kelsey v Logan City Council and Another (No 2) [2018] QIRC 017, [18].

[8] Paxton v Children's Health Queensland, Hospital and Health Service [2020] QIRC 008.

[9] Queensland Nurses' Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (Nos. B1019 of 1998, B1298 of 2000, B1299 of 2000) (2000) QGIG 75.

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

[11] Ibid.

[12] Ibid.

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

[14] Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385, [2]-[4] applying Russell v Russell;  Farrelly v Farrelly (1976) 134 CLR 495, 520 per Gibbs J;  also see Amie Mac v Bank of Queensland Limited;  Michelle Locke; Matthew Thompson;  Stacey Hester;  Christine Van Den Heuvel;  Jane Newman [2015] FWC 774, [6]-[7] per Hatcher VP.

[15] Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385, [2]-[4].

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

[17] Daniel Krcho [2020] FWC 181, [60];  also see Simon Owen [2019] FWC 8567, [13].

[18] T3-5, L16.

[19] T3-5, L20-22.

[20] T3-5, L31-34.

[21] Paxton v Children's Health Queensland, Hospital and Health Service (No 2) [2020] QIRC 023, [20], [21]

[22] Kelsey v Logan City Council and Another (No 2) [2018] QIRC 017.

[23] Paxton v Children's Health Queensland, Hospital and Health Service (No 2) [2020] QIRC 023, [24], [25]

Close

Editorial Notes

  • Published Case Name:

    Paxton v Children's Health Queensland, Hospital and Health Service (No 3)

  • Shortened Case Name:

    Paxton v Children's Health Queensland, Hospital and Health Service (No 3)

  • MNC:

    [2020] QIRC 28

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    21 Feb 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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