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  4. Dhanapathy v State of Queensland (Queensland Health) - [2023] QIRC 17

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Dhanapathy v State of Queensland (Queensland Health)[2023] QIRC 17

Dhanapathy v State of Queensland (Queensland Health)[2023] QIRC 17

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dhanapathy v State of Queensland (Queensland Health) [2023] QIRC 017

PARTIES: 

Dhanapathy, Ashwini

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/256

PROCEEDING:

Application in existing proceeding

DELIVERED ON:

20 January 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

The application is dismissed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Application in existing proceedings for suppression order – where Appellant seeks de-identification of personal information – where Respondent opposes the application – application for suppression order not granted

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 (Tribunals) Rules 2011 (Qld) r 97

Industrial Relations Act 2016 (Qld) ss 451, 580

Public Service Act 2008 (Qld) s 194

CASES:

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

Barnett v State of Queensland (Queensland Health) [2022] QIRC 424

Dhanapathy v State of Queensland (Queensland Health) [2022] QIRC 356

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

R v O'Dempsey (No 3) [2017] QSC 338

Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286

Reasons for Decision

Introduction

  1. [1]
    On 11 February 2022, a public service appeal was filed by Dr Ashwini Dhanapathy (the Appellant) pursuant to s 194 of the Public Service Act 2008 (Qld) against a disciplinary finding made by the State of Queensland (Queensland Health) (the Respondent) following a show cause process relating to her employment.
  1. [2]
    Dr Dhanapathy's appeal was decided on 13 September 2022 with the decision published on the Supreme Court Library website shortly thereafter.[1]
  1. [3]
    On 20 November 2022, the Appellant sent an email to the Industrial Registry requesting that her name and identity be 'retracted' from the decision.
  1. [4]
    On 21 November 2022, the Registry replied to Appellant's correspondence and indicated that a Form 4 - Application in existing proceedings needed to be filed for the Appellant to apply for a suppression order.
  1. [5]
    On 24 November 2022, the Appellant filed an application in existing proceedings seeking that her name and any identifying information in the decision of the appeal be suppressed and de-identified from publication.
  1. [6]
    In Schedule 1 to her Form 4, the Appellant outlines the basis upon which she files her application. In summary, the Appellant's reasons for the application are:
  • She has only recently been advised by some senior colleagues in the workplace that the publication of her name in the media may make it difficult for her to acquire a more senior medical officer job in the near future.
  • She is 'absolutely, inexplicably devastated and the mental/emotional stress is unbearable because more than 15 years of sheer hard work and sacrifice has been instantly negated by a singular, quite specific/narrow parking allegation made by a disgruntled staff member'.
  • The simple parking matter has been blown out of proportion by Metro South Hospital and Health Service (MSHHS).
  • MSHHS should be focused on more pertinent matters such as staffing and resourcing.
  • While she respects the decision of the Queensland Industrial Relations Commission (QIRC), the matter has already caused significant detrimental effects on her physical and emotional well-being.
  • The decision is having a 'significantly deleterious effect' on her professional life and threatens everything she has worked hard for.
  • She has made sacrifices so that she can do the job she loves, but the publishing of the decision has meant that all of her sacrifices, professional accolades and achievements pale into insignificance in the light of the allegation which she says arose from a vexatious complaint.
  • The matter subject of her public service appeal has been a very difficult life lesson.
  • She wants to move on and continue to be a good doctor and good human being.
  1. [7]
    The Appellant's reasons for the application conclude:

If there is any possibility of retracting/suppressing my name and identity from the decision on matter PSA/2022/256, I would be very grateful for your compassion and understanding. Especially because this matter has caused me so much turmoil for the past 2 years, and now, continues to affect my future.  No amount of words can even begin to describe how distressing and utterly demoralising matter PSA/2022/256 has been and continues to be.

Legal framework

  1. [8]
    In summarising the legal framework, I draw upon the recent decisions of Power IC in Barnett v State of Queensland (Queensland Health),[2] and Hartigan DP (then Hartigan IC) in Schiffer v State of Queensland (Queensland Health).[3] I note that in both of those matters, the application was made by the party seeking suppression at an early or interlocutory stage. 
  1. [9]
    Firstly, the onus of demonstrating that circumstances exist which justify a suppression order lies with the Appellant.
  1. [10]
    The general powers of the Queensland Industrial Relations Commission are outlined in s 451 of the Industrial Relations Act 2016 (Qld) (the IR Act). It states:
  1. 451
    General powers
  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. (2)
    Without limiting subsection (1), the commission in proceedings may—

…

  1. (c)
    make an order it considers appropriate.
  1. [11]
    Moreover, s 580(5) of the IR Act stipulates that the Commission may direct the following:
  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. [12]
    Section 580(6) of the IR Act says that the Commission may make such a direction absolutely or on conditions.
  1. [13]
    In accordance with Section 580(7) of the IR Act, the direction may be given if the Commission considers the following:
  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. [14]
    Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules) provides the Commission with a power to de-identify decisions and redact information from decisions where there is good reason to do so:

97  Publishing decisions etc.

  1. (1)
    The registrar may publish on the QIRC website –
  1. (a)
    a decision of the court, commission, or registrar; and
  2. (b)
    the notice of the making or the amended of a bargaining instrument
  1. (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.

  1. (3)
    The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
  1. (a)
    withhold publication of a document; or
  2. (b)
    modify a document, before publication, in a way that does not affect the essence of the document.
  1. [15]
    In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('ARBTU v Aurizon'),[4] O'Connor VP considered an application for the names of individual workers to be de-identified. Vice-President O'Connor 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'.[5] 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,[6] 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,[7] and decisions pronounced, in 'open court';[8] second, that evidence is communicated publicly to those present in the court;[9] 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. [16]
    Furthermore, the principles governing the exercise of discretion to issue suppression orders were outlined by the Queensland Court of Appeal in J v L & A Services Pty Ltd (No 2)[10] 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.
  1. 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…
  1. 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.
  1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. 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…
  1. (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.
  1. (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.[11] 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…
  1. [17]
    In deciding the Appellant's application, I must have regard to the principle of open justice. Justice Applegarth considered the principle of open justice in R v O'Dempsey (No 3) where his Honour said:[12]
  1. [2]
    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.[13]
  1. [3]
    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.[14]

Submissions of the parties

Respondent's submissions

  1. [18]
    The Respondent filed its written submissions opposing the application on 5 December 2022. 

Background

  1. [19]
    By way of background, the Respondent notes that on 14 February 2022, the QIRC Registry emailed the parties a copy of the public service appeal filed by Dr Dhanapathy. The Registry provided the parties with a link to the QIRC Public Service Appeals Guide and stated, 'Please note, in accordance with recent legislative amendments (as at September 2020), decisions issued in Public Service Appeals are, in most instances, published'.[15]
  1. [20]
    The Respondent says that the QIRC Public Service Appeals Guide makes six references to the publishing of decisions.  Further, the Respondent says that its submissions in reply in the substantive matter, filed on 26 April 2022 made further reference to details concerning the matter being published online:
  1. [9]
    The content of the email Query about Michael McDonald and PAH Security is unable to be tested, and Mr McDonald is not able to be given a right of reply to any of the issues raised.  Further, the content of the email is completely irrelevant to the matter being decided.  It is highly inappropriate, if not unethical, for Dr Dhanapathy to have sought out negative feedback about another employee in this way, using obviously leading questions and essentially undertaking a 'fishing expedition' seeking out the details of negative experiences with that employee.  It is highly concerning to MSHHS that Dr Dhanapathy would conduct herself in this way, specifically in light of Dr Dhanapathy's own admission that she was seeking negative feedback for the purposes of providing it to the QIRC, and the knowledge that it may be published online.
  1. [21]
    The Respondent says that Dr Dhanapathy was aware during the proceeding that the decision arising from the proceeding would be published.

Approaching the application

  1. [22]
    The Respondent says that the exercise of the Commission's discretion authorised by r 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) should be exercised narrowly and limited to exceptional circumstances.
  1. [23]
    The Respondent submits that the Appellant has not established any public interest in the suppression sought and has not established another sufficient reason that the discretion of the QIRC to suppress her identity should be exercised. Further, the Respondent submits that when considering the application, the principles of open justice dictate that there should be an initial heavy weighting in favour of publicity.
  1. [24]
    The Respondent says that it is not aware of any power of the QIRC to order social media posts or articles which have already been published about the decision in the media to be removed and says that the Appellant has not demonstrated that there would be sufficient utility in granting the application.
  1. [25]
    The Respondent submits that the minimal utility which would be achieved by granting the application should be given significant weight by the QIRC when balancing the relevant considerations in this matter.
  1. [26]
    The Respondent recognises that it will not suffer significant prejudice if the application is granted, however, submits that it is in the public interest to know that Queensland Health has taken appropriate action in the circumstances where the Applicant's conduct was found to have been a breach of the relevant standards.

The principles of open justice

  1. [27]
    The Respondent refers to the principles and case law regarding the principles of open justice and I note that these are largely set out above from [9]-[17].  The Respondent says that the matters raised in Dr Dhanapathy's application fall into the principles contemplated as the types of circumstances which do not justify the withholding of information from the public.
  1. [28]
    The Respondent says that Dr Dhanapathy relies primarily on the embarrassment and distress caused to her has a result of the published decision but has not established a set of circumstances beyond this to justify withholding the published decision from the public. The Respondent says that the threshold for suppression is high, and Dr Dhanapathy's circumstances do not reach the threshold.
  1. [29]
    The Respondent acknowledges that the principles of open justice are not absolute and that in certain circumstances, it is generally accepted that some parties to proceedings should have their names suppressed, including but not limited to: police informers, victims of blackmail or sexual assault, or children.[16] The Respondent says that Dr Dhanapathy does not fall into a category of person whose identity should generally be suppressed.
  1. [30]
    The Respondent says that as the application does not raise anything which would satisfy an exception to the principles of open justice, the application for suppression should be dismissed.

Dr Dhanapathy's submissions

  1. [31]
    Dr Dhanapathy asks that her name be removed from the published decision 'not only for her health, well-being and safety but also as a matter of social justice, human rights and privacy'.
  1. [32]
    Dr Dhanapathy submits that she 'respects the QIRC protocols and proceedings and acknowledges that the final decision regarding matter PSA/2022/256 has been published as at 13 September 2022'. Dr Dhanapathy says that her application is not to challenge the decision of the QIRC but asks that the QIRC consider her application 'in accordance with human rights, social justice and privacy rights given that release of her name in the public domain is directly affecting her public service work and access to equal opportunity as a reputable health care professional'.
  1. [33]
    Dr Dhanapathy says that she 'seeks to continue her professional work without distraction and undue distress' and that she does not wish for anything to interfere with her high standard of patient care and service delivery.
  1. [34]
    Dr Dhanapathy says that her profession and public service is 'directly threatened' by the publication of her name and identity in the public domain.  In summary, Dr Dhanapathy says:
  • The media has already sensationalised the matter.
  • Media exposure has taken away potential professional opportunities she may have  received if her name was not publicised.
  • The evolution of the digital environment gives rise to significant risks, such as traceability, physical/online harassment and discrimination for those in public service such as health care professions.
  • She is a very private person and the psychological implications of having her name in the public domain causes immense angst and distraction.
  1. [35]
    In response to the Respondent's submission that her application is based on embarrassment and distress caused by the decision, Dr Dhanapathy says that she has never said that she has suffered 'embarrassment' and that 'if anything, the Respondent is at greater risk of suffering true "embarrassment" on the basis that a simple parking matter has been 'escalated to such unnecessarily exaggerated proportions and has been so appallingly managed' while the hospital experiences issues with 'blown-out' waiting lists, lack of hospital beds, lack of resources, employee dissatisfaction and burnout.
  1. [36]
    Dr Dhanapathy says that the removal of her name from the decision will not contravene the principle of open justice as the decision will remain published. Dr Dhanapathy says that open justice 'does not absolutely necessitate complete freedom of access to the courts and freedom to publish everything that occurs in them in every conceivable circumstance'.
  1. [37]
    Dr Dhanapathy says that 'limits on open justice are defined by the conflict with rights to privacy, dignity and equality', and that each of those matters have been compromised by the publication of her name in the decision.
  1. [38]
    With regard to the principle of open justice, Dr Dhanapathy says 'more than information is at stake – in this case, it is the Appellant's professional progression and psychosocial and physical health'.
  1. [39]
    Dr Dhanapathy says, 'it is evident that the Respondent has only a partial understanding of what constitutes 'open justice' and unfortunately has made some illogical assumptions based on this limited understanding simply to justify its contention of the Appellant's application'.
  1. [40]
    With regard to the public interest argument put forward by the Respondent, Dr Dhanapathy repeats her earlier submission that the decision would remain published, albeit with her name removed.
  1. [41]
    Dr Dhanapathy points to the case of 'Witness v Marsden 2000' (no citation provided) which she says deemed that the use of a pseudonym was considered a 'minimal' incursion on the principle of open justice, and that pseudonym orders, whilst restricting the disclosure of the identity of a witness or party, still allows the court to remain open and the proceedings to be reported.
  1. [42]
    Dr Dhanapathy suggests that the Respondent's position with regard to her application may not be reasonably founded under the principles of human rights and social justice.  Further, Dr Dhanapathy makes submissions about the history of the matter, her complaints to the Respondent about the 'significant physical and psychosocial toll' the matter is having on her and the actions of the Respondent in dealing with the matter.  Dr Dhanapathy says, in part:

It is unfair and inhuman that the Appellant alone continues to experience severe burnout, ill-health effects and professional setbacks as a result of PSA/2022/256 whilst the Respondent and the complainants have not been directly affected by this matter whatsoever.[17]

  1. [43]
    Dr Dhanapathy says there is 'immense utility' in the removal of her name from the proceedings and that if her name was removed, she 'need not then be the subject of public media scrutiny and sensationalisation', will not be 'harassed or discriminated at her place of work', and that she will receive 'equal opportunity as is her right for the hard-work she has done to date'.
  1. [44]
    While the Respondent admits that it will not suffer any significant prejudice if her name is removed from the decision, Dr Dhanapathy says that she stands to 'suffer severely personally, professionally and psychosocially'.  Dr Dhanapathy says that the Respondent's objection to her application is callous and that she is shocked by the 'complete lack of remorse shown by the Respondent'.
  1. [45]
    Dr Dhanapathy then goes on to make submissions that the 'reprimand for a simple parking matter has been likened to a supreme court case for a serious criminal offence does not inspire confidence in the administration of justice'. Dr Dhanapathy then makes submissions about recent 'meetings' between 'ASMOFQ and QIRC as well as QLD Health' on 5 December 2022 where she says it 'was required that Qld Health do more as an employer and treat its doctors better'. 
  1. [46]
    Dr Dhanapathy submits that high levels of stress can cause harm and that the employer should have identified the decision in PSA/2022/256 as a hazard and should have been proactive in appealing to have her name removed from the decision as the publicising of her name is causing an immense psychosocial hazard.
  1. [47]
    Dr Dhanapathy then goes on to says that 'should the QIRC wish to review the decision and retract the decision of reprimand for a very narrow, minor allegation of parking, the Appellant will respect this and thank the QIRC for showing compassion and understanding'.

Consideration

Rule 97

  1. [48]
    Rule 97(3)(b) provides that the court, commission or registrar may modify a document, before publication,[18]in a way that does not affect the essence of the document.
  1. [49]
    I am satisfied that in the initial contact from the QIRC following the filing of Dr Dhanapathy's Appeal notice, the parties were informed that 'decisions issued in Public Service Appeals are, in most instances, published'. I also accept that the Respondent referred to the publishing of decisions in its submissions on 26 April 2022. 
  1. [50]
    I have reviewed the correspondence on the file and I note that on the day that the decision was filed in the Registry and released to the parties, it was attached to an email which read:

Good afternoon,

Please find attached the written decision filed in the Industrial Registry and released today in the above matter. 

Please note, the decision is a released copy only and may be amended prior to publishing on the Supreme Court Library website.

  1. [51]
    From time to time, parties make an application in existing proceedings to have their names removed from a decision.  There are also occasions where the Commission may act on its own initiative to issue a decision employing a pseudonym or using initials rather the name of a party to a matter. 
  1. [52]
    I accept that the removal of Dr Dhanapathy's name from the decision would not 'affect the essence of the document'.  However, in Dr Dhanapathy's case, the application has been made some months after the publishing of the decision. Rule 97(3)(b) specifies that the modification be made before publication.
  1. [53]
    It seems to me that rule 97(3)(b) does not authorise me to remove a document once publication has occurred, redact Dr Dhanapathy's name and re-publish it.
  1. [54]
    The time for Dr Dhanapathy to request suppression of her name was prior to the publication of the decision.
  1. [55]
    For that reason, I decline to remove Dr Dhanapathy's name from the decision under rule 97.

Section 580 of the IR Act

  1. [56]
    Other recent decisions of the Commission regarding applications for suppression of names or other identifying information have considered s 580 of the IR Act (set out above at paragraphs [11] to [13]. Section 580 refers to confidential material tendered in evidence.
  1. [57]
    Dr Dhanapathy's application for suppression of her name post-publication of the decision is not made on the basis of confidential evidence presented in her appeal submissions.  I therefore find that s 580 has no application and I decline to suppress Dr Dhanapathy's name under this provision.[19]

Section 451 of the IR Act

  1. [58]
    There may be an argument that I am able to make an order under the general powers provided for in s 451 that the decision be removed from the Supreme Court Library website and re-published with the suppression of Dr Dhanapathy's name.  I consider that the starting point in making a suppression order is that considered by O'Connor VP in ARBTU v Aurizon:
  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. [59]
    In that same decision, O'Connor VP states that the rules to which the open justice principle gives rise are not absolute, and that while the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions. His Honour points the power rule 97 gives the Commission to de-identify judgements if there is a good reason to do so.
  1. [60]
    As I have determined above, I do not think that rule 97 is of assistance in this matter.  If I am to suppress Dr Dhanapathy's name, I would be doing so under the general powers of the Commission.  In deciding to make such an order, I would give consideration to the arguments put forward by Dr Dhanapathy and consider whether they fall within the category of exceptions to the principles of open justice as outlined in J v L & A Services Pty Ltd (No 2).

Dr Dhanapathy's concerns regarding the subject matter of the decision

  1. [61]
    While Dr Dhanapathy's submissions include numerous statements to the effect that she respects the decision of the Commission, does not seek to appeal it and is seeking to move on, it is clear that she remains aggrieved about the entire proceeding. Dr Dhanapathy continues to state that she is distressed at being disciplined by way of a reprimand for what she says is a singular, narrow and specific parking allegation.  Dr Dhanapathy maintains that the reprimand has resulted from a complaint made by a disgruntled staff member in a way she says is vexatious. 
  1. [62]
    Dr Dhanapathy held a view that she should not have received a reprimand as a result of the substantiated allegation and the finding that grounds for discipline existed. This is what led her to file her public service appeal.  I considered that appeal and made a decision to uphold the disciplinary action and return the matter to the decision-maker with instructions to be followed in amending the decision.  Dr Dhanapathy chose not to appeal that decision. 
  1. [63]
    Dr Dhanapathy has a right to remain aggrieved regarding the outcome of the disciplinary process. However, disagreement with the outcome of an application, or for that matter, the actions of the Respondent during the disciplinary process and following the release of the decision are not matters which fall within exceptions to the principles of open justice as stated in J v L & A Services Pty Ltd (No 2).

Matters regarding Dr Dhanapathy's professional life, health and wellbeing

  1. [64]
    It is clear that Dr Dhanapathy is extremely distressed and aggrieved at what she believes is the potential impact of the decision on her career opportunities. 
  1. [65]
    While she produced no expert evidence regarding the impact the decision has had on her health and wellbeing, the tone of her written submissions is such that I do not doubt that Dr Dhanapathy has experienced distress as a result of the disciplinary matter and the decision which has resulted from the appeal. 
  1. [66]
    I also note Dr Dhanapathy's submission that she is a private person and that she has a right to privacy.
  1. [67]
    The Queensland Court of Appeal specifically addressed matters of this nature in J v L & A Services Pty Ltd (No 2):

…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…

  1. [68]
    I would characterise the vast majority of Dr Dhanapathy's submissions in support of her application (other than those addressing the unfairness of the disciplinary process and the decision itself) as being a request to suppress her name merely to save her from 'loss of privacy, embarrassment, distress, financial harm, or other "collateral disadvantage"'. 
  1. [69]
    Unfortunately, is not unusual for litigants appearing before the Commission or participating in the appeals process to experience some psychological effect or distress.[20] Dr Dhanapathy has not demonstrated that her circumstances are such that I should depart from the well-established principles set out in J v L & A Services Pty Ltd (No 2).

Practical utility of suppressing Dr Dhanapathy's name

  1. [70]
    I understand that Dr Dhanapathy is unhappy with media reporting regarding the decision.  If indeed the media has reported on the matter, there is little that can be done in retrospect to address Dr Dhanapathy's concerns.  An order to remove Dr Dhanapathy's name from the published decision is not akin to an order that media reporting or social media posts regarding the matter be removed from access. In any case, the principles of open justice would not favour suppression of Dr Dhanapathy's name for purposes of keeping it out of the media in circumstances where she is not a part of a class of people such as those identified by O'Connor VP at paragraph [44] in ARBTU v Aurizon making it necessary or desirable to restrict the availability of information about her appeal.
  1. [71]
    While I understand that Dr Dhanapathy may suffer from disadvantage as a result of the publishing of the decision with her name included, I do not find that the disadvantage suffered by her in this situation is such that it outweighs the 'paramount public interest in the due administration of justice, freedom of speech, a free media and an open society' which requires that 'court proceedings are able to be reported and discussed publicly'.[21]
  1. [72]
    As Power IC noted in Barnett v State of Queensland (Queensland Health), 'a decision not to grant a suppression order is not intended to burden any party, rather, it is made to adhere to the principles of open justice which are in keeping with the public interest'.
  1. [73]
    A review of the well-established principles and cases (some of which are set out above from [15] to [17]) makes clear that the principle of open justice is not to be dismissed lightly.

Conclusion

  1. [74]
    For the reasons given above, I do not find that rule 97 or section 580 of the IR Act are enlivened by Dr Dhanapathy's application for suppression of her name from the decision published on 13 September 2022. 
  1. [75]
    Further, even if there was an argument that I grant the application under the general powers of the Commission afforded by s 451, I would decline to do so on the basis that, for the reasons given above, Dr Dhanapathy has not demonstrated exceptional circumstances such that the well-established principles of open justice should be dismissed and that her name should be suppressed from the published decision.

Order

  1. [76]
    I make the following order:

The application is dismissed.

Footnotes

[1] Dhanapathy v State of Queensland (Queensland Health) [2022] QIRC 356.

[2] [2022] QIRC 424 ('Barnett').

[3] [2021] QIRC 286 ('Schiffer').

[4] [2021] QIRC 263 ('ARBTU v Aurizon').

[5] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259]. 

[6] Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292. 

[7] Scott v Scott [1913] AC 417, 434–5 ('Scott v Scott'); Dickason v Dickason (1913) 17 CLR 50, 51; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7 ('John Fairfax') .

[8] Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20.

[9] A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450.

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

[11] R v Tait (1979) 46 FLR 386.

[12] [2017] QSC 338, [2]-[3].

[13] John Fairfax (n 7) [17] – [20]; J v L & A Services Pty Ltd (No 2) (n 10) 44-45.

[14] Scott v Scott (n 7); Russell v Russell (1976) 134 CLR 495, 520.

[15] Respondent's submissions filed on 5 December 2022, Attachment 1.

[16] John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, [476]-[477].

[17] Appellant's submissions filed 9 December 2022, [18](f).

[18] Emphasis added.

[19] I note that in Dhanapathy v State of Queensland (Queensland Health) [2022] QIRC 356, I did suppress Dr Dhanapathy's car registration number as I was of the view that persons other than the parties did not have a sufficient legitimate interest in being informed of that information.

[20] Schiffer (n 3).

[21] J v L & A Services No 2 (n 10).

Close

Editorial Notes

  • Published Case Name:

    Dhanapathy v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Dhanapathy v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 17

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    20 Jan 2023

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
Attorney-General v Leveller Magazine Ltd (1979) AC 440
1 citation
Jump To
Cite 1 - (1979) AC 440
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
Barnett v State of Queensland (Queensland Health) [2022] QIRC 424
2 citations
Jump To
Cite 1 - [2022] QIRC 424
Cite 2 - [2022] QIRC 424
Carra v Hamilton (2001) 3 VR 114
1 citation
Jump To
Cite 1 - (2001) 3 VR 114
Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 ALJ 290
1 citation
Jump To
Cite 1 - (2000) 74 ALJ 290
Dhanapathy v State of Queensland (Queensland Health) [2022] QIRC 356
3 citations
Jump To
Cite 1 - [2022] QIRC 356
Cite 2 - [2022] QIRC 356
Cite 3 - [2022] QIRC 356
Dickason v Dickason (1913) 17 CLR 50
1 citation
Jump To
Cite 1 - (1913) 17 CLR 50
Ho v Loneragan [2013] WASCA 20
1 citation
Jump To
Cite 1 - [2013] WASCA 20
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
3 citations
Jump To
Cite 1 - [1995] 2 Qd R 10
Cite 2 - [1995] 2 Qd R 10
Cite 3 - [1995] 2 Qd R 10
John Fairfax & Sons -v- Police Tribunal of New South Wales (1986) 5 NSW LR 465
2 citations
Jump To
Cite 1 - (1986) 5 NSW LR 465
Cite 2 - (1986) 5 NSW LR 465
John Fairfax Group Pty Ltd v Local Court (N.S.W.) (1991) 26 NSWLR 131
1 citation
Jump To
Cite 1 - (1991) 26 NSWLR 131
R v O'Dempsey (No 3) [2017] QSC 338
2 citations
Jump To
Cite 1 - [2017] QSC 338
Cite 2 - [2017] QSC 338
R v Tait and Bartley (1979) 46 FLR 386
1 citation
Jump To
Cite 1 - (1979) 46 FLR 386
R. v Sussex Justices [1924] KB 256
1 citation
Jump To
Cite 1 - [1924] KB 256
Russell -v- Russell (1976) 134 CLR 495
1 citation
Jump To
Cite 1 - (1976) 134 CLR 495
Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286
2 citations
Jump To
Cite 1 - [2021] QIRC 286
Cite 2 - [2021] QIRC 286
Scott v Scott (1913) A.C., 417
1 citation
Jump To
Cite 1 - (1913) A.C., 417
Wandin Springs v Wagner [1991] 2 VR 496
1 citation
Jump To
Cite 1 - [1991] 2 VR 496

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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