Turay v Workers' Compensation Regulator (No. 2)
[2023] QIRC 169
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- Unreported Judgment
- Turay v Workers' Compensation Regulator (No. 2)[2023] QIRC 169
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Turay v Workers' Compensation Regulator (No. 2)[2023] QIRC 169
Turay v Workers' Compensation Regulator (No. 2)[2023] QIRC 169
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Turay v Workers' Compensation Regulator (No. 2) [2023] QIRC 169 |
PARTIES: | Turay, Susan Ballu (Applicant) v Workers' Compensation Regulator (Respondent) |
CASE NO.: | WC/2021/72 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 07 June 2023 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDERS: | The Application is dismissed. |
CATCHWORDS: | WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against review decision – where applicant made an application for suppression order – where applicant seeks de-identification of personal information – where respondent has no material interest in the outcome – application for suppression order not granted |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 451, 580 Industrial Relations (Tribunals) Rules 2011 (Qld), r 97 Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 131 |
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) [1995] 2 Qd R 10 |
Reasons for Decision
Introduction
- [1]Ms Susan Ballu Turay ('the Applicant') appealed a decision of the Workers' Compensation Regulator ('the Respondent') not to waive the time limitation for applying for compensation pursuant to s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
- [2]The Applicant subsequently filed an application in existing proceedings ('the Application'), seeking the Applicant's name and any identifying information in the decision of the appeal be suppressed and de-identified from publication.
- [3]The basis upon which the Applicant files this application was outlined in the following terms:
I wish to suppress the publication of my personal details against the decision of the Industrial Commission. My reasons for the suppression order as follows:
- Mental health is a taboo and is a public disgrace for everyone affected. I want to always uphold my integrity to the best of my ability.
- I will be subject to verbal and written marginalization, harassment and increased bullying comes with severe trauma, pain, torture and rejection.
- I will encounter disrespect, loss of dignity, public shaming and gossips.
- Mob attacks can be imminent, safety jeopardized, provocations levied against me and family and more injustices.
- The publications will leave me permanently disabled causing more dependency and a liability.
- Job prospects will be lost, never available which would drive down productivity.
- [4]The Respondent advised that they did not intend to file submissions as they neither consented to nor opposed the Applicant's application.
Legal framework
- [5]The Applicant bears the onus of demonstrating circumstances exist which would justify the making of the suppression order.
- [6]Section 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides for general powers of the Queensland Industrial Relations Commission ('the Commission'), including the following:
451General powers
- (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—
…
- (c)make an order it considers appropriate.
- [7]Section 580(5) of the IR Act provides that the Commission may direct the following:
- (5)The court, commission or registrar 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.
- [8]Section 580(6) of the IR Act provides that the Commission may make such a direction absolutely or on conditions.
- [9]Section 580(7) of the IR Act provides that the direction may be given if the Commission considers the following:
- (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.
- [10]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 for judgments if there is good reason to do so:
97Publishing 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.
- [11]Vice-President O'Connor considered an application for workers to be de-identified in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[1] and held:
- [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.
- [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.
- [12]The Queensland Court of Appeal in J v L & A Services Pty Ltd (No 2)[2] outlined 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…
Applicant's submissions
- [13]The Applicant submits that mental health is a 'taboo' and is a public disgrace for everyone affected because of a fear of appearing weak and vulnerable.
- [14]The Applicant made submissions about the prevalence of mental health issues and outlined different influences on a person’s mental health state.
- [15]The Applicant submits that she will be a subject to 'verbal and written marginalization, victimization, harassment and increased bullying' which will cause severe trauma, pain, torture, and rejection.
- [16]The Applicant submits that her current and ongoing social status can be linked to the likelihood of being bullied, further submitting that in general impoverished Africans / immigrants are significantly more likely to be exposed to violence and bullying or victimisation.
- [17]The Applicant submits that she 'will encounter disrespect, loss of dignity, public shaming and gossips'.
- [18]The Applicant submits that 'mob attacks can be imminent, safety jeopardised, provocations levied' against the Applicant and the Applicant's family.
- [19]The Applicant submits that the publication of the decision will 'permanently disable’ the Applicant as it will impact the Applicant's earning, mental health, daily activities, and job prospects.
Consideration
- [20]The Applicant bears the onus of demonstrating that circumstances exist which would justify the making of the suppression order sought in this application.
- [21]The Applicant exercised her right to bring an appeal against the decision of the Respondent to not extend the time limit to apply for workers compensation for a psychiatric injury. The decision necessarily considered the Applicant's submissions regarding the state of her mental health during the relevant period.
- [22]I understand from the Applicant's submissions that she would prefer that the content of the decision not be made public, however a personal preference does not meet the standard to depart from the principle of open justice. As noted above[3], information may not be withheld from the public merely to save a party from ''loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage''.
- [23]It appears that the grounds upon which the Applicant seeks to have her details suppressed are precisely to save her from a loss of privacy, embarrassment, distress and the collateral disadvantage of any potential impact on future employment prospects.
- [24]The submissions made by the Applicant refer generally to perceived consequences of the public nature of the appeal decision, however these are speculative in nature. No evidence was provided to support any of the contentions made by the Applicant as to the consequences of the appeal being published. In any event, these circumstances do not meet the accepted requirements to justify the issuing of the order sought
- [25]The principle of open justice provides that proceedings are conducted publicly and decisions announced publicly to ensure that justice is seen to be done.[4] Departure from this principle may occur only in limited circumstances as outlined by the Queensland Court of Appeal at [12]. These circumstances have not been demonstrated to exist in this matter.
- [26]I am not satisfied that the particular circumstances of the Applicant's appeal justify the making of the order sought in this matter.
Orders
- [27]I make the following Order:
The Application is dismissed.