CITATION: | Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 327 |
PARTIES: | Smith, Diana (Appellant) v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (Respondent) |
CASE NO.: | PSA/2021/251 |
PROCEEDING: | Public Service Appeal - Application in existing proceedings |
DELIVERED ON: | 10 September 2021 |
HEARING DATE: | 10 September 2021 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDER: | The appellant's application for suppression is refused. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – disciplinary action taken against appellant pursuant to s 188 of the Public Service Act 2008 – appeal by appellant against disciplinary action taken – application in existing proceedings by appellant to supress her name, that of her husband and her husband's illness – application in existing proceedings by appellant for suppression refused EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – principle of open justice – consideration of circumstances where the Commission may exercise discretion to suppress name of a party or evidence |
LEGISLATION: | Industrial Relations (Tribunal's) Rules 2011, r 96 Public Service Act 2008, s 188 |
CASES: | J. v L. & A. Services Pty Ltd (No.2) [1993] QCA 12; (1995) 2 Qd R 10. Nesbit v Metro North Hospital and Health Service [2021] ICQ 5 R v O'Dempsey (No 3) [2017] QSC 338 |
APPEARANCES: | The Appellant in person. Ms C. Mumford and Ms S. Hardy of the Respondent. |
Ms Diana Smith is employed as a litigation support officer within the Office of the Child and Family Official Solicitor, which is part of the Department of Children, Youth Justice and Multicultural Affairs ('the Department'). The classification of Ms Smith’s position is AO3. Ms Smith is paid at pay-point 4 of that classification level. By letter dated 9 June 2021, Ms Shannan Quain, Chief Human Resources Officer and Senior Executive Director of People and Culture of the Department, informed Ms Smith, having regard to two earlier disciplinary findings made by Ms Quain concerning Ms Smith, that pursuant to section 188(1) of the Public Service Act 2008, Ms Quain was imposing on Ms Smith the disciplinary action of the forfeiture or deferment of a remuneration increment or increase from AO3, pay‑point 4, to AO3, pay-point 2 ('the discipline decision').
By appeal filed on 15 July 2021, Ms Smith appealed against the discipline decision. Ms Smith contends that the disciplinary action is disproportionate because of a number of circumstances. By directions order dated 15 July 2021, I stayed the discipline decision until the determination of Ms Smith’s appeal or further order of the Commission. I also made orders for the Department and Ms Smith to file and serve written submissions in respect of the appeal. By application in existing proceedings filed on 15 July 2021, Ms Smith sought an order that her name, that of her husband’s and her husband’s medical condition be suppressed. Both parties have complied with the directions order and filed and served written submissions in respect of the appeal. Today, I heard Ms Smith’s application in existing proceedings for suppression orders.
Rule 97(3) of the Industrial Relations Tribunal Rules 2011 ('the Rules') relevantly provides that the Commission may, in the public interest or for another reason the Commission considers appropriate, modify a document before publication in a way that does not affect the essence of the document. That rule confers power on the Commission, before publishing its decision and reasons for decision about Ms Smith’s appeal, to anonymise or suppress her name, that of her husband’s and that of her husband’s medical condition, provided it does not affect the essence of the decision and reasons for decision. However, the discretion is only triggered where it is in the public interest to do so or where the Commission considers it is appropriate to do so for some other reason. The power of the Commission to make an order of the kind provided for in rule 97 of the Rules is similar to the power conferred on other courts to make non-publication, pseudonym or similar orders.
The principles applied by the courts in considering whether or not to make such orders are well established. The relevant principles were summarised by Applegarth J in R v O'Dempsey (No 3) [2017] QSC 338. They are (a) the principle of open justice is one of the most fundamental aspects of the justice system in Australia, and exceptions to the principle are few and are strictly defined; (b) Australia’s judicial system is based on the notion that proceedings are conducted in open court, and that justice must not just be done, it must be seen to be done; (c) in exceptional circumstances, a case or part of it will be heard in camera, and also in exceptional circumstances, a non-publication order which restricts publication of all or parts of a court proceeding will be made, however, all information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment or distress; (d) the cases recognise that there is a significant distinction between holding proceedings in camera and holding proceedings in open court but with directions having the consequence of concealing the names of witnesses with or without a further direction limiting publication of evidence, which can involve the use of a pseudonym to conceal an identity and can also involve an order that certain evidence or parts of the proceeding not be disclosed; (e) in dealing with an application for non-publication or similar order, it must be recalled that it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed; (f) there are well-established categories of cases that attract non-publication orders; and (g) pseudonym orders restrict the disclosure of the identity of a witness or party, but allow the court to remain open and the proceedings to be reported and the use of pseudonym orders is therefore considered a minimal incursion on the principle of open justice in a case where a witness reasonably fears death, injury, unnecessary loss of liberty or some other evil. The authority for that proposition, again, is in the decision of Applegarth J in R v O'Dempsey (No 3) [2017] QSC 338 at paragraphs 2 to 10.
The well-established categories of cases that, subject to any statutory provision to the contrary, attract such orders, are (a) where 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; (b) national security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law; (c) exclusion of the public or a substantive restraint on publicity is not permissible unless abstractly essential to the practical utility of a proceeding, for example, prosecutions for blackmail proceedings or proceedings for the legitimate protection of confidential information; (d) 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; and (e) an incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, the 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. The authority for that proposition is J. v L. & A. Services Pty Ltd (No. 2) [1993] QCA 12, also reported at (1995) 2 Qd R 10, at pages 44 to 45, in the decision of Fitzgerald P and Lee J.
In relation to the last category, (a) 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; (b) additionally, when it is the interests of a party or 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; (c) 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; (d) 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; (e) if information is suppressed, proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods, and a particular unsatisfactory manifestation of this difficulty occurs when uncertainty as to the particular person concerned lead to speculation concerning other members of a relevant group; (f) it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public; (g) the occasional misuse or abuse of these rights and freedoms and other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society; and (h) it is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed, and 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 on the merits or demerits of claims to privacy of individual litigants. Again, the authority for that proposition is J. v L. & A. Services Pty Ltd (No. 2) [1993] QCA 12, at page 45.
In her application in existing proceedings, Ms Smith stated that the reason she was requesting “the suppression of names is due to the confidential and private medical details of my husband (who is not an employee of the Department) and myself that form part of the basis of my appeal”. In the hearing today, Ms Smith submitted (a) when the allegations against her were first raised, she acted transparently and provided details of her husband’s medical condition to the Department on the understanding it was confidential; (b) her husband’s medical condition forms a large component of her appeal against the disciplinary decision, as well as her own private information; and (c) she did not want those details to be accessed by others, and she did not want her civil rights to privacy to be breached and for any adverse health outcome to occur in respect of her husband from the release of such information.
The Department submitted that while it appreciated that the administration of justice was paramount and that the public interest was against the suppression sought by Ms Smith, it understood Ms Smith’s concerns and was open to resolving those concerns. In reply, Ms Smith submitted that while she recognised the issues of public interest raised by the Department, if the suppression she sought was not granted, it would be open to anyone to read and access her husband’s private medical information.
I have some sympathy for Ms Smith’s submissions and her position and that of her husband. However, in making a decision about the suppression order she seeks, I must apply the principles that have been established by the courts to follow in determining such applications. In my view, the reasons given by Ms Smith for suppressing her name, that of her husband and the details of her husband’s illness are not sufficient such that the principle of open justice should not be observed in relation to Ms Smith’s appeal. The reasons given by Ms Smith do not meet the established categories where an exclusion of the public or a substantive restraint on publicity would be permitted. It may be that the public disclosure of some of the information relevant to the determination of whether the disciplinary decision was fair and reasonable may cause some loss of privacy or embarrassment to Ms Smith and, or in the alternative, to her husband. However, for the reasons given above, that is not a reason to make an order of the kind sought by Ms Smith.
In addition, the nature of Ms Smith’s appeal also militates against the making of an order of the kind sought by her. Ms Smith is a public service employee and has had disciplinary action taken against her on the basis of disciplinary findings made against her. Ms Smith, as is her right, has appealed against the disciplinary decision. I have yet to make a decision about whether the disciplinary action taken against her was fair and reasonable. However, disciplinary findings have been made in respect of Ms Smith as a public service employee. There can be no dispute that disciplinary proceedings are for the protection of the public. The authority for that proposition is Nesbit v Metro North Hospital and Health Service [2021] ICQ 5, at paragraph 99, in the decision of Davis J, President of the Industrial Court of Queensland. This is a further reason why Ms Smith’s name should not be suppressed and the other details she seeks not to be suppressed.
The question in this case is whether I should exercise my discretion and suppress Ms Smith’s name, that of her husband and the details of her husband’s illness, in respect of any decision and reasons for decision I release in respect of her appeal against the discipline decision. For the reasons I have given, this is not a case where it is in the public interest, or for some other reason I consider appropriate, to suppress Ms Smith’s name, that of her husband and the details of her husband’s illness. I make the following order: the Appellant’s application for suppression is refused.
