Neil v Lee (No. 2)[2024] QIRC 149

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Delivered ex tempore, revised from transcript

Reasons for Decision

Introduction

1. [1]
   On 24 April 2024, I delivered my decision in Neil v Lee ('the decision').^[1] The decision was published on the Supreme Court Library website on 29 April 2024. The decision concerned a complaint made by the present applicant ('the Applicant') to the Queensland Human Rights Commission ('the Complaint') alleging that the Respondent's alleged conduct contravened the Anti-Discrimination Act 1991 ('the AD Act'). The Complaint was referred by the Queensland Human Rights Commission to the Queensland Industrial Relations Commission on 21 October 2022 pursuant to s 166(1)(a) of the AD Act.

The present application

2. [2]
   By general application filed on 30 May 2024, the Applicant made an application to the Commission that:

• pursuant to s 484 of the Industrial Relations Act 2016 ('the IR Act') and, or in the alternative, r 78 of the Industrial Relations (Tribunals) Rules 2011 for leave to reopen the proceedings that led to the decision; and

• secondly, pursuant to s 451(2)(c) of the IR Act and, or in the alternative, s 191 of the AD Act, that:

1. –her name '… be de-identified and removed from the public decision'; and

1. –any publication of her name be prohibited to the extent it could identify or lead to the identification of her identity as the Complainant in the decision.

3. [3]
   This is my decision in relation to those matters.

The power to reopen proceedings

4. [4]
   The combined effect of s 484(1) and s 485(b) of the IR Act provides that on application by a party to the proceedings, proceedings may be reopened by the Commission. In support of her application that the proceedings be reopened, the Applicant refers to my decision in Fowler v Workers' Compensation Regulator.^[2] While that decision did not involve an application made under s 484 of the IR Act and, at the time that I made that decision, I had not released a judgment in that matter, there is no reason to think that the relevant principles referred to in that case may not assist in guiding the exercise of the discretion under s 484(1) of the IR Act.

The power to modify a decision and make anonymity and non-publication orders

5. [5]
   The Applicant contends that the Commission has power to modify a previously published decision and, in that regard, refers to the decision in Brady v State of Queensland (Queensland Health) (No. 2),^[3] where at [15] it was held that s 451(2)(c) of the IR Act provides such a power.

6. [6]
   Section 451(1) of the IR Act provides that the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. Section 451(2)(c) provides that without limiting subsection (1), the Commission, in proceedings, may make an order it considers appropriate.

7. [7]
   The Applicant also relies on s 191 of the AD Act as a source of power for the orders sought. That section relevantly provides that if the Commission is of the reasonable opinion that the preservation of anonymity of a person, who has been involved in a proceeding under the AD Act is necessary to '… protect the work security, privacy or any human right of the person, the tribunal may make an order prohibiting the disclosure of the person's identity.' However, that power is contained in ch 7, div 1 of the AD Act which deals with the pre-hearing process of a complaint referred to this Commission from the Queensland Human Rights Commission. Those are not the circumstances relevant to the Applicant's present application.

8. [8]
   In support of her submissions, the Applicant referred to the decision of Vice President O'Connor in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon'),^[4]  where his Honour stated:

40. [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. [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. [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. [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. [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'.;^[5]

9. [9]
   In Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor,^[6] I stated of the principles of open justice and the power of a court or tribunal to make an order of the kind sought by the Applicant in the present case:

14. [14]
    The relevant principles were recently referred to by Snaden J in Alpert v Commonwealth of Australia (Department of Defence) where his Honour stated:

11. 11
    recently had occasion to survey the authorities that establish the principles that govern applications such as this one.  In Naude v DRA Global Limited [2023] FCA 493, [13]-[15], I made the following observations, namely:

In R v Davis (1995) 57 FCR 512 (Wilcox, Burchett and Hill JJ), this court observed (at 514):

Whatever their motives in reporting, [the media’s] opportunity to do so arises out of a principle that is fundamental to our society and method of government:  except in extraordinary circumstances, the courts of the land are open to the public.  This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers.  As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.

The exclusion of public access to the processes with which a court deals is only to be effected in exceptional cases:  The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377, 379 [8] (Allsop CJ, Wigney and Abraham JJ; hereafter “Country Care Group”); David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294, 299 (Street CJ), 307 (Hutley AP, Samuels JA agreeing).  In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131, Kirby P (in dissent but not on this issue) said (at 142-143):

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light.  Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms…  A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.  Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

It is well accepted that “…mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication”:  Keyzer v La Trobe University (2019) 165 ALD 93, 99 [29] (Anastassiou J).  It is a feature of open justice that those to whom court processes refer may thereby suffer embarrassment or distress; but “…that is a price the community has to pay for the undoubted benefit of court proceedings being, except in very exceptional circumstances, conducted in public”:  Williams v Forgie (2003) 54 ATR 236, 239 [14] (Heerey J).

…

3. 21
   The propositions just stated were met with muted, if any opposition and, with respect, rightly so.  This would not be the first time that a court should recognise what is inherent within them.  In AA v BB (2013) 296 ALR 353, 389 [182], Bell J recognised that:

Making a non-publication order may be necessary in cases where, in the absence of an order, parties would be deterred from bringing proceedings for the vindication of their legal rights, such as cases involving victims of blackmail, negligence or sexual assault where the person would suffer public ridicule or acute personal embarrassment if his or her identity were to be disclosed in legal proceedings...

(references omitted)

22. 22
    Dixon J made an equivalent observation in PPP v QQQ (as the representative of the Estate of RRR (deceased)) [2011] VSC 186, [34], namely:

Commonly, parties might be deterred from bringing or concluding proceedings unless public disclosure of their identities could be prevented or because part of the injury complained of may be exacerbated by public disclosure.  Thus, it is regarded as being necessary in the interests of the proper administration of justice that orders be made to encourage such plaintiffs to litigate their allegations, seek redress through the courts and, in proper cases, do so without unreasonable risk of aggravation of their injuries…

23. 23
    So, too, has this court been moved to recognise the point of principle.  In Porter v Australian Broadcasting Corporation [2021] FCA 863 (hereafter “Porter"), Jagot J observed (at [84]):

…The administration of justice may be prejudiced in a variety of ways.  If, for example, people cannot come to a court confident that some kinds of information can be protected from disclosure if necessary (such as commercially confidential information valuable to a person or a third party, or sensitive information about a person’s health, or personal information about parties or third parties of no more than prurient interest to others) then public confidence in and access to justice may itself be undermined.

24. 24
    Equivalent observations have been made in this court in connection with the disclosure of sensitive commercial information:  Clark v Digital Wallet Pty Ltd [2020] FCA 877, [21] (Abraham J).  In Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278, Katzmann J observed (at [148]):

It is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished.  Otherwise, the parties and members of the public might lose confidence in the Court and the Court’s processes “might open the way to abuse”…

10. [10]
    Section 451(1) of the IR Act provides that the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. Section 447(1)(p) of the IR Act provides that the Commission's functions include any other function conferred on the Commission under this Act or another Act. Section 174B(a)(iv) of the AD Act provides that in relation to complaints about contraventions of the AD Act that are referred to the Commission under the AD Act, the Commission has the function to hear and decide the complaints.

11. [11]
    In Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016^[7] I relevantly stated of the power in s 451(1) of the IR Act:^[8]

44. [44]
    However, by virtue of s 451(1) of the Act, the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. This is a common way to describe such a power as conferred on a statutory body. A description similar to s  451(1) of the Act has been considered by the High Court. In Northern Land Council v Quall, Kiefel CJ and Gageler and Keane JJ relevantly stated:

[33] The power conferred on a representative body by s 203BK(1) in the familiar terms of a power “to do all things necessary or convenient to be done for or in connection with the performance of its functions”, though “broad”, is “strictly ancillary”, authorising “the provision of subsidiary means of carrying into effect what is enacted in the statute itself” and encompassing “what is incidental to the execution of its specific provisions”. The power does “not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred”.             

45. [45]
    Later, their Honours stated:

A "necessary or convenient" power of that nature has already been emphasised to be ancillary, subsidiary or incidental.

12. [12]
    For these reasons, my view is that s 451(1) of the IR Act confers on the Commission discretion to, in an appropriate case, modify a decision after publication. This is because the exercise of such power, having regard to the nature of the decisions that may be made by the Commission in respect of complaints referred to it from the Queensland Human Rights Commission under the AD Act about work-related matters, would be something incidental to the execution, by the Commission, of the performance of its functions under the AD Act. Further, the exercise of such a power would not involve exercising a power to do something which departs from the scheme of the AD Act by which the power to hear and determine complaints referred to the Commission is conferred.

The reasons provided by the Applicant for re-opening the proceedings and the making of the de-identification and non-publication orders

13. [13]
    The Applicant submits that:

• the application to reopen the proceedings is for the limited purposes '… of seeking a non-publication/anonymity order' and to the extent the Applicant seeks to file further evidence, that does not go to the matters in the substantive proceeding and are merely in support of the grounds of her present application;

• the decision identifies her and evidence she provided to the Commission in support of her complaint including disclosure of childhood sexual abuse perpetrated by a member of her family;

• she is distressed by the '… level of detail provided about that allegation in the judgment given the publicly available nature of the decision and that the Applicant has not disclosed these details to certain family members.';

• she is concerned that those family members may become aware of the allegation if they '… read the published decision that identifies the Applicant by name, and this could cause undue harm to those family members who were not previously aware of the allegation.';

• at the time the Applicant's evidence was filed, and prior to the publication of the judgment, '… the Applicant and her representatives were unaware of the detail in which her history of abuse would be discussed in the published decision.';

• citing Aurizon, the discretion to modify a decision may be exercised in favour of the persons who are victims of sexual assault or discrimination, to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm;

• it is in the public interest to provide protection to her privacy as a victim of childhood sexual abuse by making the order sought which is supported by s 31(2) of the Human Rights Act 2019, which recognises there will be circumstances where '… a court or tribunal may exclude … other persons or the general public from all or part of a hearing in the public interest or the interests of justice.';

• in subsequent contact by the Respondent to the Applicant's legal representatives, the Respondent has made threats to draw media attention to the decision which identifies her;

• such conduct may amount to victimisation and a further breach of the AD Act;

• having regard to the '… risk of further harm being caused to the Applicant by the Respondent's conduct, it is entirely appropriate and consistent with the purposes of the AD Act to make the orders in the terms sought';

• it is contrary to the public interest and the interests of justice if the Respondent, against whom a finding of a contravention of the AD Act has been made, '… is permitted to use information published in a decision to cause harm and victimise the Applicant.';

• it would not be in the public interest or interests of justice to allow complainants in sexual harassment complaints to be victimised in this manner, which may act as a disincentive for other persons seeking to bring sexual harassment complaints;

• it is in the interests of justice to allow the reopening in these limited circumstances where the application has been brought for the limited purpose of seeking            non-publication and anonymity orders;

• no prejudice is caused to the Respondent by the reopening and the making of such orders in these circumstances;

• the de-identification of the decision will not interfere with the principle of open justice as it will not hinder the reader's understanding of what is being said of the decision or affect the essence of the document or decision; and

• the identification of the Applicant's name will not be inconsistent with the public interest and would be consistent with her human right to privacy and her right as a victim of childhood sexual abuse, which is in the public interest to protect.

Should the proceeding be reopened and orders of the kind sought by the Applicant be made?

14. [14]
    The guiding principle in deciding whether to grant leave to reopen proceeding is whether or not the interests of justice are better served by allowing or rejecting the application. In respect of the precise issue of re-opening, I accept the Applicant's submissions about the nature of the evidence upon which she now relies, in that it is not evidence relevant to an issue in dispute in the substantive proceeding. However, that is not the only relevant issue to consider.

15. [15]
    The Applicant submits that she was distressed by the level of detail given in the decision about her disclosure of childhood sexual abuse perpetrated by a member of her family because she has not disclosed those details to certain other family members, and that if they read the decision, undue harm may be caused to those family members.

16. [16]
    The Applicant directly referred to those circumstances of her childhood in her affidavit in the substantive proceeding and, by her filed statement of facts and contentions at paragraph [35], contended that those circumstances, which were known to the Respondent, were relevant having regard to s 120 of the AD Act in determining whether a reasonable person would have anticipated the possibility that the Applicant would have been offended, humiliated or intimidated by the Respondent's impugned conduct. The Applicant's oral submissions in the substantive hearing made exactly the same point.^[9]

17. [17]
    The substantive hearing was on 9 November 2023 and there was a further hearing about a related substantive matter on 11 April 2024. Further submissions were sought from the Applicant about that further matter and written submissions were filed on 17 April 2024. The decision was released on 24 April 2024 and was published on the Supreme Court Library website on 29 April 2024. I have been informed that the decision has also been published on some other legal and human rights websites.

18. [18]
    No application was made prior to the substantive hearing, during the substantive hearing on 9 November 2023 or prior to or at the further hearing that was conducted on 11 April 2024, seeking any sort of a de-identification or non-publication order for the reasons now given by the Applicant for such an order.

19. [19]
    At no stage, prior to the date of the Applicant's present application, were submissions made that the decision should be amended to not refer to the matters upon which the Applicant now bases her application, namely what happened to her as a child.

20. [20]
    It is obvious that the matters upon which the Applicant now bases her application for re-opening and for de-identification and, or in the alternative, non-publication, would have been known to her at the time she swore her affidavit and at the time she made her submissions to the Commission.

21. [21]
    The Applicant's submission was that she was '…unaware of the detail in which her history of abuse would be discussed in the published decision.' I am told today the issue relates to the identification of the relevant perpetrating family member. However, that precise history was something expressly relied upon by the Applicant, in her sworn evidence, in support of her case. Further, that precise history was the subject of express contentions and submissions by the Applicant for the Commission to take into account in determining whether or not the Respondent had contravened the AD Act.

22. [22]
    I accept what the Vice President stated in Aurizon. However, as the principles of open justice clearly indicate, mere embarrassment, inconvenience or annoyance will not suffice to grant an application for suppression or non-publication. It is important to note one basis upon which the Applicant says there may be harm is, potentially, to other family members. However, that confined issue is not sufficient to oust the principles of open justice, where, having regard to all the circumstances of this case, the precise evidence said to potentially cause harm to other family members was integral to my reasons for finding that the Respondent contravened s 118 of the AD Act in sexually harassing the Applicant. If that precise evidence was a matter of concern to the Applicant, it would have been known to her at the time she swore her affidavit and at the time she made her submissions in the substantive matter. Yet, no relevant application was made at any time prior to 30 May 2024.

23. [23]
    The other harm pointed to is the potential harm to her in the failure to protect her right to privacy. However, again for the same reasons as previously given, the fact that childhood matters are referred to in the published decision is not, on its own, enough to conclude that it is in the interests of justice that the proceeding be reopened and that orders of the kind sought by the Applicant be made. Again, that evidence was integral to the case advanced by the Applicant and the decision I made. As previously stated, the decision was published on the Supreme Court website on 29 April 2024. No application for de-identification or non-publication was made until 30 May 2024. No explanation was given for this delay between 29 April 2024 and 30 May 2024 relevant to the reasons the Applicant presently relies upon for her current application. That is, the Applicant does not explain why potential harm to her (or to other family members) did not motivate her to make such an application as the present, until one month after such publication on the Supreme Court website.

24. [24]
    Further, I cannot accept that by not making the orders sought, that may act as a disincentive to other complainants making complaints of sexual harassment. The precise evidence led by the Applicant about her childhood was directly relevant to the Applicant's complaint of sexual harassment. I accept such matters are finely balanced however, equally, such issues demonstrate to others the matters that the Commission will take into account in determining whether sexual harassment has occurred.

25. [25]
    Further to that, on the evidence before me, the first contact made between the Respondent and the Applicant's lawyers was on 29 May 2024. The reasonable inference to draw is that it was what the Respondent said to the Applicant's lawyers on that day, about going to the media, that was the immediate issue motivating the Applicant's present application to be made on 30 May 2024.

26. [26]
    For those reasons, I am not persuaded that it is now in the interests of justice to reopen the proceedings and grant the orders sought.

27. [27]
    The other basis upon which the Applicant seeks the proceeding to be reopened and for the de-identification and, or in the alternative, the non-publication orders to be made, are threats the Respondent made to the Applicant's lawyers on 29 May 2024 about going to the media.

28. [28]
    As the Applicant correctly identifies, depending upon what further conduct of which the Respondent may engage, that may amount to, amongst other matters, a further contravention of the AD Act. Depending on any such conduct which is undertaken, it may amount to other contraventions of other Acts or laws. If the Respondent does engage in such conduct, then there are remedies available to the Applicant about such conduct. For these reasons, the fact that the Respondent may engage in further contravening conduct, or that the Respondent may engage in further conduct which is in contravention of another Act, is not a sufficient basis for me to reopen the proceedings and make orders of the kind sought by the Applicant.

29. [29]
    I accept that there will be no relevant prejudice to the Respondent, but for all the other reasons I have given, they outweigh that absence of prejudice.

30. [30]
    Despite the detailed and helpful submissions from Ms Weldon of Legal Aid Queensland and the assistance she has provided to the Commission, I am not persuaded to re-open the proceedings and grant the orders the Applicant seeks. 

Order

31. [31]
    I make the following order:

The Applicant's application filed on 30 May 2024 is dismissed.