Schiffer v State of Queensland (Queensland Health)
[2021] QIRC 286
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- Unreported Judgment
- Schiffer v State of Queensland (Queensland Health)[2021] QIRC 286
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Schiffer v State of Queensland (Queensland Health)[2021] QIRC 286
Schiffer v State of Queensland (Queensland Health)[2021] QIRC 286
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286 |
PARTIES: | Schiffer, Sheri (Applicant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | TD/2020/74 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 20 August 2021 |
HEARING DATES: | On the papers |
MEMBER: | Hartigan IC |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – UNFAIR DISMISSAL – application in existing proceedings for suppression order – where Applicant seeks an order to suppress personal identifying information and file details – where principles of open justice apply – where Applicant has not demonstrated an exception to the principles of open justice – order dismissing the application |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 451, s 580 Industrial Relations (Tribunals) Rules 2011 (Qld), r 97 |
CASES: | Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10 |
Reasons for Decision
Background
- [1]An application in existing proceedings and a supporting affidavit was filed in the Industrial Registry by the Applicant, seeking that her personal identifying information including her name, personal information and details of the filed matter be suppressed from publication or made available to the public and not be published on any social media or website.
- [2]The Applicant relies on the following grounds in support of her application:
- (a)the information is private to the Applicant;
- (b)public knowledge of this information would adversely affect the Applicant's professional reputation and the ability to seek and retain employment;
- (c)the Applicant has already suffered from public prejudice and bias, resulting in mental health implications, physical health issues, financial loss, career loss and family and social relationship demise; and
- (d)the information offers no public benefit.
- [3]The Applicant bears the onus to demonstrate circumstances exist which would justify making the proposed orders.
Relevant legislation and case law
- [4]Section 580(5) of the IR Act provides that the Commission may direct:
- (a)a report, or part of a report, of proceedings in an industrial cause not be published; or
- (b)evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
- [5]Section 580(6) of the IR Act provides that the Commission may make such a direction absolutely or on conditions.
- [6]Further, under s 580(7) of the IR Act, the direction may be given if the Commission considers:
- (a)disclosure of the matter would not be in the public interest; or
- (b)persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.
- [7]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.
- (2)Without limiting subsection (1), the commission in proceedings may –
…
- (e)make an order it considers appropriate.
- [8]Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ("the Rules") provides the Commission with a power to de-identify judgments and redact information from judgments if there is good reason to do so. Rule 97 relevantly provides as follows:
97 Publishing decisions etc.
- (1)The registrar may publish on the QIRC website –
- (a)a decision of the court, commission, or registrar; and
- (b)the notice of the making or the amended of a bargaining instrument
- (2)The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.
Note -
For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.
- (3)The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
- (a)withhold publication of a document; or
- (b)modify a document, before publication, in a way that does not affect the essence of the document.
- [9]The Queensland Court of Appeal in J v L & A Services Pty Ltd (No 2),[1] ("J v L& A Services Pty Ltd") established six principles governing the exercise of discretion to issue suppression orders which are as follows:
- 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.
- The public 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…
- The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of 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. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
- No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
- Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
- (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…
- (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.
- (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.
- ... 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 non-discriminatory, 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…
- [10]In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[2] the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the Applicant union. O'Connor VP relevantly held as follows:
- [40]The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; ‘that justice should not only be done but should manifestly and undoubtedly be seen to be done’.https://www.queenslandjudgments.com.au/caselaw/qirc/2021/263 – _ftn14 This is a central feature of the administration of justice under the common law.
- [41]The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in ‘open court’; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
- [42]However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
- [43]The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.
…
- [44]It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
…
- [46]As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'.
[footnotes omitted].
The Respondent's Submissions
- [11]Queensland Health opposes the orders sought on the following grounds:
- (a)the Applicant does not particularise how a suppression order would aid the administration of justice. Rather, the general presumption is that the administration of justice is done openly and transparently;
- (b)while the Commission may exclude parties or suppress information, this is a narrow power, exercised cautiously;
- (c)there is a presumption of public interest in proceedings before the Commission;
- (d)there is a public interest to know if either party within this matter have behaved inappropriately as:
- (i)the Applicant is a nurse, required to discharge her duty of care in accordance with legal requirements;
- (ii)Queensland Health is a branch of the Queensland Government and it is in the public interest to know if Queensland Health has taken inappropriate action against a public sector nurse;
- (e)issuing the suppression order requested by the Applicant would inhibit the future work of the Commission and other relevant parties in determining precedent and points of differentiation in future unfair dismissal matters;
- (f)the Applicant is not a class of person who ought to have their identity suppressed; and
- (g)the inclusion of the Applicant’s name in a proceeding or decision is unlikely to increase their public visibility or notoriety.
Consideration
- [12]The Applicant filed an application for reinstatement following the termination of her employment by the Respondent. Due to the nature of the relief sought by the Applicant in this application and for reasons which I will expand on further below, I will not detail the reasons provided by Queensland Health for the termination of employment at this point in the proceedings.
- [13]The Applicant contends that she seeks the orders:
- (a)to avoid endangering her physical and mental health or safety; and
- (b)for other reasons in the interests of justice.
- [14]The Applicant contends that the issues are, in her opinion, a personal private medical matter that should remain only in the domain of the Australian Health Practitioner Regulation Agency ("AHPRA"), and her treating practitioners.
- [15]Further, the Applicant attaches a letter to her submissions from Dr Luke O'Regan, psychiatrist, who states that the Applicant "has been under his care since April 2018" and that she is "recovering from mental illness including Depression." Dr O'Regan requests that the Applicant "be protected from adverse publicity so far as possible." He states that "[i]nsofar as possible, the protection of [the Applicant’s] privacy is certainly in the interest of her mental health" and that "adverse findings or personal details relating to the [the Applicant’s] psychological or personal history is likely to lead to significant anxiety and suffering."
- [16]The Applicant also relied on a letter from her GP, Dr Fleming, who provided a medical certificate stating that "I believe it would be in her best interests to keep her QIRC proceedings confidential, as having this information published would be likely to adversely affect her mental health."
- [17]The medical information provided by the Applicant is somewhat limited insofar as it does not go beyond stating that the Applicant is "recovering from a mental illness including Depression." Whilst an opinion is expressed by both Dr O'Regan and Dr Fleming that publication of information in the Applicant's matter may lead to an adverse effect on the Applicant's mental health, neither of the opinions express an opinion as to the possible extent of such an adverse impact, nor do they provide an explanation, in the circumstances of this matter, of the significance that such an adverse impact would have on the Applicant.
- [18]Accordingly, I am not able to make an assessment, on the limited information before me, as to the extent of any adverse impact on the Applicant and why such an impact provides a basis for the Applicant's matter to fall within one of the exceptions to the principles of open justice. I also note that Dr O'Regan states that an adverse finding might likely lead to significant anxiety and suffering. It is trite to note that an application in the terms sought by the Applicant will not preclude the risk, as there is in all litigation, of an adverse finding or findings being made against the Applicant in the final determination of the matter.
- [19]The Applicant contends that she seeks the de-identification of her name in the proceedings for her present, ongoing, and future mental and physical wellbeing, professional reputation, ability to work in her career, to seek and be employed and for her financial health and wellbeing.
- [20]The Applicant further contends that it would be in the interests of justice to grant the orders sought. In this regard, the Applicant contends that she has already been involved in a court proceeding with respect to matters relevant to the allegations relied on in support of the decision to terminate her employment and the Applicant contends that there is no benefit in further "punishing" her a second time by way of the hearing before the Queensland Industrial Relations Commission.
- [21]The Applicant also submits that her matter is being managed by AHPRA and with the assistance of her treating medical practitioners she does not provide any risk to the public or to patient safety.
- [22]The matters raised by the Applicant do not presently fall within the category of an exception to the principles of open justice. It is, unfortunately, not unusual for litigants appearing before this Commission to be suffering from psychological conditions, including depression, when litigating their matters. Further, it is accepted that a litigant's involvement in proceedings before any Court or Tribunal may lead to an increased likelihood of them suffering anxiety. There is nothing in the material currently before me that persuades me that an exception to the principles of open justice apply in the particular circumstances of this matter.
- [23]The Applicant does not provide compelling particulars in support of her contention that it is in the interests of justice for information relating to the proceedings to be suppressed. I do not consider that the submission that the Applicant has already one court proceeding and a second before the Commission would be a form of punishment to be a matter that falls within such a category. The principles of open justice do not serve to punish litigants.
- [24]Further, there is no material before me as to the role AHPRA is playing "in managing" the Applicant's matter with the assistance of the Applicant's medical practitioners which would permit the Commission to make a considered assessment as to whether it was in the public interest for the Applicant to be identified in the published decision.
- [25]Further, from the state of the material currently before me, the matters relied on by the Applicant fall into the category of the matters referred to in J v L& A Services Pty Ltd[3] as the type of information that should not be withheld from the public. In order to be persuaded to make an order de-identifying the Applicant, the evidence would need to establish that withholding the information goes beyond withholding information from the public to save a party or witness from the loss of privacy, embarrassment, distress, financial harm or other "collateral damage". The evidence adduced by the Applicant does not go beyond this category.
- [26]For these reasons, I do not consider that it is appropriate to exercise my discretion, pursuant to r 97 of the Rules, to issue a direction to the Registrar to amend any prohibited document in the proceedings by de-identifying the Applicant's name.
- [27]The application is made by the Applicant at an early stage in the proceedings. At this juncture it is not known the nature or extent of the evidence given, records tendered or things exhibited during the course of the proceedings. It may well be that there is evidence given, records tendered or things exhibited that do ultimately fall within a category of an exception to the principles of open justice. However, currently, I do not consider that it is appropriate to issue a direction as permitted by s 580(5) of the IR Act.
- [28]I have not referred, in detail, to the allegations that form the basis of the termination of the Applicant's employment in order for any future application, to not be affected by this decision.
Conclusion
- [29]For the foregoing reasons, I do not consider it appropriate to de-identify the name of the Applicant in this proceeding pursuant to r 97 of the Rules, or to issue orders suppressing details of any evidence given, records tendered or things exhibited in the proceedings that will form the basis of the hearing, pursuant to s 580 of the IR Act.
Orders
- The application is dismissed.