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Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor[2024] QIRC 20

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor[2024] QIRC 20

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor [2024] QIRC 20

PARTIES:

Together Queensland, Industrial Union of Employees

(Applicant)

v

State of Queensland (Queensland Health)

(First Respondent)

and

Smith, Paul

(Second Respondent)

CASE NO.:

B/2023/91

PROCEEDING:

General Application

HEARING DATES:

On the papers

DELIVERED ON:

7 February 2024

DATES OF WRITTEN SUBMISSIONS:

Applicant's written submissions filed on 11 December 2023

Second Respondent's written submissions filed on 8 January 2023

MEMBER:

Merrell DP

ORDERS:

The general application, filed on 17 November 2023 by Together Queensland, Industrial Union of Employees, is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – THIRD PARTY PROCEEDINGS – Applicant is a registered employee organisation whose member's name was mentioned in a published decision by the Queensland Industrial Relations Commission involving her former husband – Applicant applied for the Queensland Industrial Relations Commission to exercise discretion pursuant to s 451 of the Industrial Relations Act 2016 to amend the published decision to remove reference to the name of its member or to apply pseudonym – consideration of whether the Queensland Industrial Relations Commission has power to make an order of the kind sought by the Applicant – consideration of the applicable principles to apply where the Queensland Industrial Relations Commission is possessed of such a power – whether the Applicant has demonstrated that an order of the kind, sought by it, should be made – circumstances are not such that the principle of open justice should not be applied – application dismissed

LEGISLATION:

Industrial Relations Act 2016, s 451

Industrial Relations (Tribunals) Rules 2011, r 97

CASES:

Alpert v Commonwealth of Australia (Department of Defence) [2023] FCA 784

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

Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167

J. v L. & A. Services Pty Ltd (No. 2) [1993] QCA 12; [1995] 2 Qd R 10

Smith v State of Queensland (Queensland Health) [2023] QIRC 296

Reasons for Decision

Introduction

  1. [1]
    On 13 October 2023, I delivered my decision in Smith v State of Queensland (Queensland Health) ('the decision').[1] The decision was published on the Supreme Court Library website on 19 October 2023. The decision concerned an application for reinstatement by Mr Paul Smith following his dismissal by the State of Queensland, through Queensland Health ('the Department'), effective 25 October 2021. The case number was TD/2021/98.
  1. [2]
    Because of the circumstances surrounding Mr Smith's dismissal, some of the evidence before the Commission concerned, in part, Mr Smith's former wife, Ms Kathleen Smith. As a consequence, in giving my reasons for the decision, I made relevant reference to part of the evidence concerning Ms Smith.
  1. [3]
    By application filed on 17 November 2023, Together Queensland, Industrial Union of Employees ('TQ') applied for an order seeking the following decision:

That the Commission exercise their general powers under s 451 of the Industrial Relations Act 2016 and to make orders pursuant to rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 that:

  1. 1)
    The published decision of Deputy President Merrell in relation to TD/2021/98 (Decision) be amended to remove reference or apply a pseudonym to the following person:
  1. -
    Ms Kathleen Smith.[2]
  1. [4]
    I subsequently made directions for the parties to file and serve written submissions in relation to the application made by TQ.
  1. [5]
    Submissions were filed by TQ and Mr Smith. The Department informed the Commission that it did not oppose the order sought by TQ and, on that basis, it would not file and serve any written submissions.
  1. [6]
    The question for my determination is whether I should grant the application made by TQ.
  1. [7]
    For the reasons that follow, I dismiss the application made by TQ.

TQ's contentions and submissions

  1. [8]
    In its application, TQ contended:
  • Ms Smith's name appeared on eight different occasions in the decision, she was not a party or a witness in the proceeding and the appearance of her name in the published decision '… was without her knowledge or consent';
  • the references to Ms Smith in the decision disclose significant personal information relating to her private life; and
  • removal or replacement by pseudonym of Ms Smith's name:
  1. -
    would not result in a material change to the decision; and
  1. -
    would not impact on the principles of open justice because the reinstatement application did not relate to Ms Smith and her inclusion was made by reference to the background of the matter and connection between some of the relevant parties.
  1. [9]
    TQ further submitted:
  • while r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 provides a power to the Commission to '… de-identify a decision before it is published … s 451 [of the Industrial Relations Act 2016 ('the Act')] provides the Commission with general powers to amend a decision after publication.';
  • Deputy President Hartigan in Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) ('Edgar'),[3] upon review of the decision of Vice President O'Connor in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon'),[4]  exercised discretion to remove '… the name of the complainant from the published decision';
  • in Aurizon, Vice President O'Connor relevantly stated:
  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.
  2. [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.
  3. [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.

[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

[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]

  • the '… same principles and discretion should be applied in this matter'; and
  • the removal of Mr Smith's wife's name from the decision, or the use of a pseudonym in the decision, '… will not hinder the principles of open justice' and the removal of her name:
  1. -
    will '… separate her from being recognised or associated with the matter and provide her with anonymity'; and
  1. -
    will '… also disassociate her from any direct connection to the matter and ensure she is not associated tangentially to the proceedings.'

Mr Smith's submissions

  1. [10]
    Mr Smith opposed TQ's application and relevantly submitted that:
  • s 451 of the Act does not provide the Commission with power to grant TQ's application;  and
  • TQ has led no evidence in support of its application.

Does the Commission have power to amend a decision following publication?

  1. [11]
    TQ asserts that s 451 of the Act confers power on the Commission to make the order it seeks. However, that submission is made at a very high level of generality. The submission does not particularise any sub-sections of s 451 of the Act said to confer such power. There is no in depth analysis of why that section confers such a power.  Mr Smith's submissions suffer from the same vice.
  1. [12]
    In the absence of proper argument, I am unwilling to make a decision about whether s 451 of the Act confers discretionary power on the Commission to amend a decision, after it has been published, for reasons of the kind advanced by TQ.
  1. [13]
    In any event, for the reasons I give below, assuming, without deciding, that s 451 of the Act confers such a discretionary power on the Commission, then having regard to the established principles about making an order of the kind sought by TQ, I would not grant the application for the reasons advanced by TQ.

The relevant principles

  1. [14]
    The relevant principles were recently referred to by Snaden J in Alpert v Commonwealth of Australia (Department of Defence)[6] where his Honour stated:
  1. 11
    I 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).

…

  1. 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)

  1. 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…

  1. 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.

  1. 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”…

  1. [15]
    Having regard to these principles, TQ's submissions do not persuade me that this would be an appropriate case to amend an already published decision made by the Commission. There are three reasons for this.
  1. [16]
    First, any reference made to Ms Smith in the decision did not require her prior knowledge and consent as asserted by TQ.
  1. [17]
    Secondly, while Deputy President Hartigan exercised her Honour's discretion, in accordance with the established principles, to anonymise the name of the complainant of inappropriate workplace behaviour in Edgar,[7] Ms Smith was not a complainant, in the same or similar sense, in Mr Smith's application for reinstatement.
  1. [18]
    Thirdly, the substantive reasons advanced by TQ to amend the decision are that such amendments will:
  1. -
    separate Ms Smith from being recognised or associated with the matter;
  1. -
    provide Ms Smith with anonymity; and
  1. -
    disassociate Ms Smith from any direct connection to the matter and ensure she is not associated tangentially to the proceedings.
  1. [19]
    Connected with these reasons is the fact that, in the decision, reference is made to matters concerning Ms Smith's divorce, family law proceedings and an application made by her under the Domestic and Family Violence Protection Act 2012. I accept that, to the extent these matters were necessarily referred to in the decision, such reference may have caused, and may cause, embarrassment or distress to Ms Smith.
  1. [20]
    However, the established principles are that the embarrassment or distress of a person, to whom court processes refer, is not enough to not apply the principles of open justice.
  1. [21]
    The circumstances of the present case are not of the kind recognised in the authorities where the principles of open justice may not be applied when having regard to the circumstances of particular individuals or parties.[8]
  1. [22]
    Furthermore, TQ did not put on any evidence[9] that may tend to prove that the removal of the references to Ms Smith in the decision is necessary to avoid some relevant harm to her.[10]
  1. [23]
    For these reasons, assuming, without deciding, that s 451 of the Act confers power on the Commission to amend a decision after it has been published, the matters advanced by TQ do not persuade me that the principles of open justice should not be maintained in the present case.

Conclusion

  1. [24]
    For the reasons I have given, I dismiss TQ's application.

Order

  1. [25]
    I make the following Order:

The General application, filed on 17 November 2023 by Together Queensland, Industrial Union of Employees, is dismissed.

Footnotes

[1][2023] QIRC 296.

[2]Although not stated in the general application, I assume that Ms Smith is a member of Together Queensland, Industrial Union of Employees.

[3][2023] QIRC 167 ('Edgar').

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

[5]Citations omitted.

[6][2023] FCA 784 ('Alpert').

[7]Edgar (n 3), [31].

[8]See e.g. Aurizon (n 4), [44] (Vice President O' Connor) and Alpert (n 6) [21]-[24] (Snaden J). See also J. v L. & A. Services Pty Ltd (No. 2) [1993] QCA 12; [1995] 2 Qd R 10, 44-45 (Fitzgerald P and Lee J).

[9]This is despite the Form 2 (General Application to the Queensland Industrial Relations Commission) stating that an applicant may file an affidavit in support of the application.

[10]Aurizon (n 4), [44].

Close

Editorial Notes

  • Published Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor

  • Shortened Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor

  • MNC:

    [2024] QIRC 20

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    07 Feb 2024

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
AA v BB (2013) 296 ALR 353
1 citation
Jump To
Cite 1 - (2013) 296 ALR 353
Alpert v Commonwealth of Australia (Department of Defence) [2023] FCA 784
2 citations
Jump To
Cite 1 - [2023] FCA 784
Cite 2 - [2023] FCA 784
Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278
1 citation
Jump To
Cite 1 - [2015] FCA 278
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
Clark v Digital Wallet Pty Ltd [2020] FCA 877
1 citation
Jump To
Cite 1 - [2020] FCA 877
David Syme & Co. Ltd v General Motors-Holdens Ltd (1984) 2 NSWLR 294
1 citation
Jump To
Cite 1 - (1984) 2 NSWLR 294
Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167
2 citations
Jump To
Cite 1 - [2023] QIRC 167
Cite 2 - [2023] QIRC 167
In Naude v DRA Global Limited [2023] FCA 493
1 citation
Jump To
Cite 1 - [2023] FCA 493
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
4 citations
Jump To
Cite 1 - [1993] QCA 12
Cite 2 - [1993] QCA 12
Cite 3 - [1995] 2 Qd R 10
Cite 4 - [1995] 2 Qd R 10
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
Keyzer v La Trobe University (2019) 165 ALD 93
1 citation
Jump To
Cite 1 - (2019) 165 ALD 93
Porter v Australian Broadcasting Corporation [2021] FCA 863
1 citation
Jump To
Cite 1 - [2021] FCA 863
PPP v QQQ [2011] VSC 186
1 citation
Jump To
Cite 1 - [2011] VSC 186
R v Davis (1995) 57 FCR 512
1 citation
Jump To
Cite 1 - (1995) 57 FCR 512
Smith v State of Queensland (Queensland Health) [2023] QIRC 296
2 citations
Jump To
Cite 1 - [2023] QIRC 296
Cite 2 - [2023] QIRC 296
The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377
1 citation
Jump To
Cite 1 - (2020) 275 FCR 377
Williams v Forgie (2003) 54 ATR 236
1 citation
Jump To
Cite 1 - (2003) 54 ATR 236

Cases Citing

Case NameFull CitationFrequency
Carle v State of Queensland (Queensland Ambulance Service) (No. 2) [2025] QIRC 762 citations
Neil v Lee (No. 2) [2024] QIRC 1492 citations
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
1

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