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  4. Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) - [2021] QIRC 332

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Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 332

Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 332

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 332

PARTIES: 

 

Fischer, Ineke

(Appellant)

v

State of Queensland (Department of   Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO:

PSA/2021/245

PROCEEDING:

Application in proceedings

DELIVERED ON:

24 September 2021

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. The application filed by the appellant on 20 September 2021 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE – appeal – allegations of verbal and physical abuse – allegations denied – decision appealed against confirmed – appellant concerned publication of name will have adverse impact – application to suppress name of appellant

LEGISLATION:

Industrial Relations Act 2016 (Qld)

Industrial Relations (Tribunals) Rules 2011 (Qld) r 97(3)

Public Service Act 2008 (Qld)

DECISIONS:

Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223

Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307

Reasons for Decision

 Background

  1. [1]
    Ms Ineke Fischer is employed as a Residential Care Officer with the Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships (‘the Department’).
  1. [2]
    On 16 September 2021, I delivered an ex tempore decision in respect of the Public Service Appeal (‘PSA’) made by Ms Fischer.  Ms Fischer’s appeal was in respect of a decision by the Department to find two allegations against her substantiated. The allegations involve conduct that, if accepted as fact, objectively reflects poorly on Ms Fischer. Ms Fischer denies the conduct.
  1. [3]
    Following a review of written submissions filed by the parties, and a hearing where further submissions were made, I determined to confirm the Department’s decision to find the allegations substantiated.
  1. [4]
    On 20 September 2021, subsequent to the ex tempore decision, Ms Fischer filed this application in proceedings. The application is made pursuant to r 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (‘the Rules’).
  1. [5]
    In the Application in Proceedings Ms Fischer particularises her application by asserting that:
  • Publication of her name will impact negatively on her future employment prospects;
  • Publication of her name will negatively affect her personal and professional life; and
  • If she is not ultimately dismissed from her employment (as foreshadowed) the publication of her name will negatively impact on her employment with the Department.
  1. [6]
    Following receipt of the Application in Proceedings the parties were directed to provide written submissions by 23 September 2021 and the application was dealt with on the papers.

Statutory framework

  1. [7]
    Rule 97(3) of the Rules relevantly provides:

97 Publishing decisions etc.

…

(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.

  1. [8]
    Rule 97(3) of the Rules allows an almost unlimited discretion to make an order such as the one contemplated by Ms Fischer in her application.  However, such discretion must be exercised in full contemplation of the principle of open justice.

Legal principles

  1. [9]
    In the recent decision of Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service),[1] I considered the principle of open justice and its exceptions:
  1. [46]
    There is a broad discretion to make orders suppressing the name of a party or parties to proceedings in the Act. There is significant jurisprudence with respect to the principles that should inform my discretion to suppress details of a matter, including the name of a party. In R v O'Dempsey (No 3), it was held:

'The principle of open justice is one of the most fundamental aspects of the justice system in Australia. Exceptions to the principle are few and are strictly defined.

Our judicial system is based on the notion that proceedings are conducted in open court. Justice must not just be done; it must be seen to be done.'

  1. [47]
    Some exceptions to this principle were identified in the decision of John Fairfax Group Pty Ltd v Local Court of New South Wales, by President Kirby (as he then was) where he observed:

'Exceptions have been allowed by the common law to protect police informers; blackmail cases; and cases involving national security. The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourages its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of a particular case.'

  1. [48]
    The guiding principles for the exercise of a discretion are comprehensively set out in J v L & A Services Pty Ltd (recently applied by Industrial Commissioner Pidgeon in Mohr-Edgar v State of Queensland (Legal Aid Queensland) ). They are relevantly as follows:
  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.
  1. ... 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…

(Emphasis added) (References omitted)

  1. [10]
    More recently in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon'),[2] the Vice President held:
  1. [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’. This is a central feature of the administration of justice under the common law.
  1. [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.
  1. [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.
  1. [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. …
  1. [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.
  1. [45]
    In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice.
  1. [46]
    As was observed by Mahoney JA 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'.
  1. [47]
    In my view having regard to the relative size of the depot and the people involved that, considered as a whole, the order withholding the workers names should be granted. I note also that the application has the support of the RTBU.

(Underlining added) (References omitted)

  1. [11]
    I note in relation to the decision in Aurizon that the matter involved an active dispute between two employees and with management in a workplace. I note it was a dispute about the proper handling of a complaint of sexual harassment and further, it required the Commission to consider the details of the alleged sexual harassment. Finally, I note that the parties to those proceedings were ad idem on the question of suppression.

Submissions

  1. [12]
    The parties filed written submissions on 23 September 2021 in accordance with directions.
  1. [13]
    Ms Fischer, through her union, submitted that her circumstances did not fall within the recognised exceptions to the otherwise strict application of the principles of open justice. Instead, Ms Fischer submitted that she was entitled to have her name suppressed because it was a fair and reasonable approach having regard to the damage she would suffer otherwise. Ms Fischer submitted suppression was in the interests of justice.
  1. [14]
    The Department opposed the application for suppression, broadly relying on the paramount importance of the application of the principles of open justice.

Consideration

  1. [15]
    Prior to the amendment of the Public Service Act 2008 (Qld) (‘the PS Act’) in September 2020 PSAs were conducted under the PS Act and were not published or reported. The decisions issued by the Commission were essentially private rulings as between the parties.
  1. [16]
    Since the amendments to the PS Act the conduct of PSAs is now under Chapter 11 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’). Under the current regime, decisions are reported and published on the Queensland Courts website.
  1. [17]
    The change in procedure was inter alia a response to observations of stakeholders that decisions in PSAs lacked consistency and transparency because they were private. The publication of appeal decisions now allows parties to consider comparable decisions and enhances parties' submissions by allowing the inclusion of influential decisions in similar matters.
  1. [18]
    In short, by applying the principles of open justice where they previously had not been applied, the parties to PSAs are now better informed about their own matters, and better placed to make submissions of a more compelling nature.
  1. [19]
    Given the change to the approach to publishing appeal decisions is a relatively recent event, there will need to be an adjustment to the mindset of litigants. It is to be expected that some litigants will not have contemplated that their appeal decision would be publicly accessible, and they might (mistakenly) believe that their circumstances entitle them to be treated differently to any other litigant, in any other proceedings before this Commission, or any other court for that matter.
  1. [20]
    The principles of open justice, and their exceptions, are well established. They are set out above. Ms Fischer’s union rightly concedes that she does not fall within any of the recognised exceptions. Ms Fischer will undoubtedly suffer embarrassment as a consequence of my recent decision. Ms Fischer may even suffer professional and financial damage in the future if e.g., a prospective employer conducts a Google search on her name. But none of these unfortunate consequences brings Ms Fischer within the exceptions to the principles of open justice.
  1. [21]
    Ms Fischer’s circumstances are no different to e.g., the average workers’ compensation appellant or a dismissed employee who, as litigants, routinely conduct proceedings before the Commission. Apart from different treatment historically, there is nothing about PSAs that sets them apart from other proceedings in a way that creates an exception to the principles of open justice.
  1. [22]
    Further, nothing in the Vice President’s comments in the Aurizon decision alters this. That matter was determined on its own unique facts, and on facts that were quite distinguishable from those before me.
  1. [23]
    I accept that the discretion under r 97(3) is wide however, contrary to the submissions of Ms Fischer, I do not accept that there is a ‘fair and reasonable’ or ‘interests of justice’ category of exceptions that ought to be added. The well-recognised and comprehensive exceptions to the principles of open justice are an apposite and complete framework for consideration of the discretion granted by r 97(3). 
  1. [24]
    I am not persuaded to exercise my discretion to suppress Ms Fischer’s name from the decision.
  1. [25]
    I propose to issue written reasons consistent with my ex tempore decision within three business days of the release of this decision, subject to any further applications Ms Fischer may make.  

Order

  1. [26]
    In all of the circumstances I make the following order:
  1. The application filed by the appellant on 20 September 2021 is dismissed.

Footnotes

[1][2021] QIRC 223 at [46]-[48]; see also Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307.

[2][2021] QIRC 263 at [40]-[46].

Close

Editorial Notes

  • Published Case Name:

    Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships)

  • Shortened Case Name:

    Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships)

  • MNC:

    [2021] QIRC 332

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    24 Sep 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223
2 citations
Jump To
Cite 1 - [2021] QIRC 223
Cite 2 - [2021] QIRC 223
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
2 citations
Jump To
Cite 1 - [2021] QIRC 263
Cite 2 - [2021] QIRC 263
Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307
2 citations
Jump To
Cite 1 - [2021] QIRC 307
Cite 2 - [2021] QIRC 307

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
TB v State of Queensland (Queensland Health) (No. 2) [2025] QIRC 1402 citations
Williams v State of Queensland (Metro North Hospital and Health Service) [2025] QIRC 2162 citations
1

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