Exit Distraction Free Reading Mode
- Unreported Judgment
- SP v RB as Trustee for the R and R Family Trust[2024] QIRC 280
- Add to List
SP v RB as Trustee for the R and R Family Trust[2024] QIRC 280
SP v RB as Trustee for the R and R Family Trust[2024] QIRC 280
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | SP v RB as Trustee for the R and R Family Trust AND Others [2024] QIRC 280 |
PARTIES: | SP (Complainant) v RB as Trustee for the R and R Family Trust (First Respondent) And RB (Second Respondent) |
CASE NO.: | AD/2023/125 |
PROCEEDING: DELIVERED ON: | Application in existing proceedings 29 November 2024 |
MEMBER: HEARD AT: | Pratt IC On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – Application in existing proceedings – where complainant filed an application in existing proceedings – where respondents did not object – where the complainant applied for an interpreter to be appointed – where the complainant applied for leave to give evidence behind a screen or partition – where the complainant applied for a security guard to be present at the hearing – where the complainant requested that parties be de-identified – application is granted. |
LEGISLATION AND OTHER INSTRUMENTS: | Anti-Discrimination Act 1991 (Qld), s 191 Criminal Law (Sexual Offences) Act 1978 (Qld), s 3, s 10, s 11 Industrial Relations Act 2016 (Qld), s 451, s 580 Industrial Relations (Tribunals) Rules 2011, r 97 Practice Direction Number 3 of 2023 – Modification of a Document Before Publication Practice Direction Number 4 of 2023 – Guideline for the Modification of a Document Before Publication |
CASES: | Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 BR v State of Queensland [2022] QIRC 146 EY v The Store [2021] QIRC 135 Health Ombudsman v Singh [2024] QCAT 377 JDT v PDL (No 2) [2022] QDC 147 J v L & A Services Pty Ltd (No 2) [1995] Qd R 10 Mr A v Viva Energy Australia Pty Ltd [2021] QIRC 309 Neil v Lee (No. 2) [2024] QIRC 149 Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 193 R v O'Dempsey (No 3) [2017] QSC 338 |
Reasons for Decision
- [1]This is an application in existing proceedings by the Complainant. The Complainant seeks orders that:
- an interpreter be provided for the hearing of the substantive matter at no cost to the Complainant;
- pursuant to s 191 of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') disclosure of the Complainant's name be prohibited;
- pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the Commission's file in this matter be withheld from release or search;
- the Complainant be allowed to give her evidence behind a screen or partition; and
- a security guard be engaged to attend the hearing of the matter.
- [2]The Respondents have made no submissions in response to this application.
Background
- [3]Stated briefly, the Complainant alleges in the substantive matter that serious sexual assaults as well as sexual harassment/discrimination and victimisation were carried out by the Second Respondent. On the papers, there is a lengthy history of acrimony between the parties and there has been an admission before the Magistrates Court by the Second Respondent to common assault of the Complainant's husband. Other criminal charges against the Second Respondent are pending relating to allegations of attempting to pervert the course of justice, breaking and entering by the Second Respondent into the Complainant's home, and unlawful stalking.
- [4]The basis of this application is submitted to be that the orders are consistent with the interests of justice and will facilitate the Complainant's meaningful and safe participation in the hearing of the complaint.
Relevant law
Legislation
- [5]Section 191 of the AD Act says:
- If the tribunal is of the reasonable opinion that the preservation of anonymity of a person who has been involved in a proceeding under the 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.
- A person must comply with an order.
Maximum penalty—100 penalty units
- In this section, a reference to involvement in a proceeding under the Act includes—
- making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
- being a respondent to such a complaint; and
- involvement in a prosecution for an offence against the Act; and
- giving information or documents to a person who is performing a function under the Act; and
- appearing as a witness in a proceeding under the Act.
- [6]Section 451(2)(c) of the IR Act relevantly says:
- Without limiting subsection (1) , the commission in proceedings may—
…
- make an order it considers appropriate.
- [7]Rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') says:
- The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate—
…
- modify a document, before publication, in a way that does not affect the essence of the document.
- [8]Section 580(5) of the IR Act says:
- The court, commission or registrar may direct—
- a report, or part of a report, of proceedings in an industrial cause not be published; or
- evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
Practice Directions
- [9]In addition to legislation, further guidance in this area is provided by practice directions for the Industrial Court of Queensland, Queensland Industrial Relations Commission, and Industrial Registrar. Practice Direction Number 3 of 2023 – Modification of a Document Before Publication ('PD3/23') relevantly says at paragraph 2:
Rule 97 of the Industrial Relations (Tribunals) Rules 2011 confers discretion on the Tribunal to, in the public interest or for another reason the Tribunal considers appropriate, modify a document, before publication, in a way that does not affect the essence of the document.
- [10]Further guidance can be found in Practice Direction Number 4 of 2023 – Guideline for the Modification of a Document Before Publication ('PD4/23'). At paragraph 2, PD4/23 relevantly says:
Open justice is one of the fundamental principles of our justice system. Generally, all hearings and records of proceedings before the Court or Commission are open to the public. The open justice principle may, on rare occasions, be limited where it is necessary to secure the proper administration of justice.
- [11]PD4/23 also says at paragraph 3:
Rule 97 of the Industrial Relations (Tribunals) Rules 2011 confers discretion on the Court, Commission, or Industrial Registrar ('Tribunal') to, in the public interest or for another reason the Tribunal considers appropriate, withhold publication of a document, or modify a document, before publication, in a way that does not affect the essence of the document.
- [12]And further, at paragraph 4, PD4/23 says that:
The circumstances where the Tribunal may consider it appropriate, in the public interest or for another reason, to modify a document before publication may include:
- not releasing identifying information of:…
…
- a witness or other person mentioned in a proceeding where not releasing identifying information about the witness or person is necessary to secure the proper administration of justice;
- [13]Perhaps providing the overarching guidance is paragraph 5 of PD4/23 which says:
The decision as to whether or not a document is de-identified and, if so, to what extent, is a matter for the Tribunal to determine.
The case for an interpreter
- [14]The unchallenged evidence put on by the Complainant is that the Complainant's first language is Nepalese. The Complainant argues that she has limited capacity to understand English and is certainly not competent enough in English to adequately understand everything said during the proceedings. In particular, if being cross-examined in English, the Complainant argues that there is a very real risk she will not understand the subtleties of questions and may struggle to give accurate answers. That is unchallenged evidence and I see no reason not to accept it.
- [15]So too do I accept the unchallenged evidence that the Complainant is of slender financial means and cannot afford the costs of an interpreter. It is readily apparent that an injustice might result, or at the very least the Commission process be hindered, if oral evidence is adduced that is of questionable value.
- [16]I am therefore satisfied that it is in the interests of justice that an interpreter be provided for these proceedings and that the cost of doing so should be borne by the Commission.
The case for security and separation
- [17]Essentially, the two special measures in question here are the engagement of security to be present at the hearing of the matter and allowing the Complainant to give her oral evidence (to be cross-examined) behind a screen.
- [18]As noted above, the substantive matter involved serious allegations of sexual assault, victimisation, and sexual harassment/discrimination. Sadly, those sorts of allegations are not particularly rare, even in tribunals dealing with civil actions arising from such alleged conduct. However, it is significant that the Second Respondent is representing himself and the First Respondent. He will therefore be cross-examining the Complainant directly, albeit through an interpreter.
- [19]I accept the Complainant's (unchallenged) evidence that she is beyond extremely nervous about being in the hearing environment and undergoing the hearing process in close proximity to, including being cross-examined by, the man she alleges raped her. The Commission is charged with the responsibility of maintaining order in its proceedings, including ensuring appropriate levels of civility in those proceedings. But there is a history of violence, alleged violence, and acrimony between the parties in this case. Also, the Commission is not usually staffed with security officers. It is not a court where security officers and police officers are often present in hearing rooms or the precinct. Nor does the Commission require visitors to pass through security and be screened for weapons.
- [20]Noting the significant history (some proven and some yet to be proven) of allegations including violence, and the history of acrimony between the parties, and the nature of the subject matter of these proceedings, as well as the fact that the Second Respondent will be cross-examining the Complainant, I am satisfied that this is a case that warrants the provision of security. Given my finding above as to the Complainant's financial situation, it is appropriate that the Commission bear that cost.
- [21]As to the separation/screen issue, the evidence is that at an earlier proceeding the Complainant was triggered by the mention of the Second Respondent's name whilst in his presence. I am told that the Complainant collapsed and needed medical attention. The proceedings were adjourned as a result. It is on that basis that the application is made for a screen separating the Complainant and the Second Respondent. Being in the presence of the Second Respondent is said to be extremely challenging for the Complainant.
- [22]I would ordinarily be quite reluctant to grant an application to provide for such a barrier between the cross-examiner and the relevant witness. This is, I accept, not an ordinary situation. The Complainant insists that such measures are essential to ensuring she is able to participate in the proceedings. Noting the abovementioned context and history, I am prepared to grant the application for some form of separation between the Complainant and the Second Respondent, either by use of a screen or partition, or locating the parties in separate rooms within the Commission premises and facilitating their attendance electronically for the hearing.
Suppression of name and prohibition of search/release of Commission file
- [23]As noted above, it is clear that there are several legislative provisions that empower the Commission to make orders of this nature. For example, s 191 of the AD Act allows for preventing disclosure of a person's identity in cases where doing so is necessary to protect the security, privacy, or human rights of that person. Likewise, s 451(2)(c) of the IR Act provides power to make any order that the Commission considers appropriate. Similarly, the power to modify a document before publication in a way that does not affect the essence of the document is provided for in r 97(3)(b) of the Rules. That relevant rule works closely with the power residing within s 580(5) of the IR Act, which empowers the Commission to order the non-publication of evidence, records, or things tendered and exhibited in proceedings. However, the fact that the ability to do so exists does not answer the question as to whether the Commission should make such orders.
- [24]I recently traversed the great deal of the relevant jurisprudence on this point in the matter of Patterson v State of Queensland (Queensland Corrective Services)[1] ('Patterson'). In that matter I observed the fundamental principles of open justice as described in J v L & A Services Pty Ltd (No 2)[2] ('L&A Services'). In L&A Services, six principles were laid down concerning when a suppression order of this nature should be granted:
- Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and 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. National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law.
- 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:
- 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: cf. R. v. Chief Registrar of Friendly Societies, Ex parte New Cross Building Society.
- 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.
- 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.
- It is the last category which gives rise to the most difficulty because of unresolved questions concerning the nature and ambit of the power. Support for a more liberal approach seems substantially confined to modern authority. Even so, 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. Further, public scrutiny is a strong disincentive to false allegations and a powerful incentive to honest evidence, and publicity may attract the attention of persons with material information who are unaware of the proceeding. Again, as was pointed out by McHugh J.A. in John Fairfax & Sons Ltd v. Police Tribunal of New South Wales, if information is suppressed “proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods…”: cf. Raybos Australia Pty Ltd v. Jones at 59 per Kirby P., citing McPherson J. in Ex parte The Queensland Law Society Incorporated [1984] 1 Qd.R. 166, 171. A particularly unsatisfactory manifestation of this difficulty occurs when uncertainty as to the particular person concerned leads to speculation concerning other members of a relevant group. Finally, it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public. The occasional misuse or abuse of these rights and freedoms or other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society. It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed. It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges’ subjective views of the merits or demerits of the claims to privacy of individual litigants. It is also of concern that there should not be an expenditure of time, resources and costs on arguments that do not bear directly on the merits of disputes.
- [25]The principles of open justice are paramount. Embarrassment, even to an extreme, or the desire for privacy will not be a sufficient basis for overcoming the principles of open justice.
- [26]The present case is not one involving supressing the names of police informants where the concerns around publication go well beyond mere privacy or embarrassment.[3] Nor is it a case of alleged sexual conduct identifying persons who are not actually parties to the proceedings.[4] Nor is this a case where the allegations of sexual assault are historical and no criminal investigation or other process is before a court, or likely to be so and the case for suppression goes no higher than privacy and embarrassment.[5] There are submissions made by the Complainant that indicate to me that the Complainant's concern is more towards embarrassment. But the essential submission and evidence is that publication of the Complainant's identity in this case would extend into the realms of humiliation and degradation of the Complainant.
- [27]The Complainant refers me to several cases as authority for the proposed orders as to suppression of the Complainant's name and prohibiting search or release of the Commission file for this matter. Mr A v Viva Energy Australia Pty Ltd[6] ('Viva Energy') was a case in which his Honour, Merrell DP, granted orders to suppress the name of a party where the matter concerned allegations of a sexual nature. BR v State of Queensland[7] ('BR') was a case in which Hartigan IC (as her Honour then was) agreed to suppress the identity of a party in order to give effect to proceedings under the Criminal Law (Sexual Offences) Act 1978 ('the Sexual Offences Act'). Further, EY v The Store[8] was a case where Hartigan IC (as her Honour then was) granted orders continuing suppression on the basis that more than just embarrassment, rather, humiliation and degradation, would occur if not.
- [28]The primary submission is that this complaint involves serious allegations of a sexual nature, and which are the subject of a criminal investigation. Other parts of the complaint alleging victimisation also traverse alleged conduct by the Second Respondent that is the subject of some criminal charges (breaking and entering, perverting the course of justice, and unlawful stalking). No criminal charges for the alleged sexual assault have been served or presented to a court, however. That is a difference in this case with the one considered by Hartigan IC in BR. It is certainly possible that the allegation of rape may give rise to criminal proceedings, but that is by no means a certainty. It is clear, however, that the nature of that complaint of rape is the subject of a "criminal investigation".
- [29]Section 10(1) of the Sexual Offences Act provides that unless authorised by s 11, an offence is committed by a person who, by a statement or representation made or published otherwise than in a report concerning an examination of witnesses or a trial, reveals the name, address, school or place of employment, or any other particular that is likely to lead to the identification of a complainant. None of the authorisations in s 11 apply here. A "complainant" is defined in s 3 of the Sexual Offences Act as "a person in respect of whom a sexual offence is alleged to have been committed". The phrase "sexual offence" is defined as "any offence of a sexual nature, and includes a prescribed sexual offence". A "prescribed sexual offence" is defined as meaning "rape, attempt to commit rape, assault with intent to commit rape, or an offence defined in the Criminal Code, section 352".
- [30]It is clear enough that the allegations of rape in this case, which are the subject of a criminal investigation, are captured by the definition of a "sexual offence" in the Sexual Offences Act. The next question is whether the Complainant is a "complainant" as defined in s 3 of the Sexual Offences Act. That is - "a person in respect of whom a sexual offence is alleged to have been committed". In cases where no charges have been presented to a court, or had been presented and were withdrawn, the situation of who is a "complainant" under the Sexual Offences Act has been noted to be somewhat unclear.
- [31]In JDT v PDL (No 2)[9] ('JDT') his Honour, Long SC DCJ, considered this issue in the civil context of a defamation case where part of the substance of that case was complaints of sexual assault (alleged in those proceedings to have been defamatory). His Honour considered whether s 10 of the Sexual Offences Act captured such a situation and therefore made it an offence to publish the identifying details of the relevant person in those proceedings. Without detailed submissions from either party his Honour observed that the term "complainant" had some breadth to it. Not being able to entirely resolve the issue at that interlocutory stage, his Honour held that it was in the interests of justice to grant the application to anonymise the parties and prevent publication of identifying materials.[10]
- [32]JDT was cited favourably by her Honour, Dan DP, in the matter of Health Ombudsman v Singh[11] ('Singh'), noting the observations by his Honour in JDT that the definition of "complainant" had some 'potential breadth'. In Singh, her Honour noted that in that case there were no convictions of a sexual offence, and no charges were before a court.[12] As such, her Honour considered whether identification of the complainant by the Tribunal might be prohibited by the Sexual Offences Act. Her Honour ultimately held that in those circumstances publishing the complainant's identity would have been inconsistent with the protections set out in the Sexual Offences Act. It was on that basis that Her Honour was satisfied that it was in the interests of justice to grant the application for a non-publication
- [33]In Viva Energy, Merrell DP, after granting suppression, held that it was appropriate to suppress the documents altogether, thus obviating the need for the Industrial Registry to review and modify every document in the matter, searching for potentially identifying information.[13]
- [34]In the present case the Complainant has made a formal complaint of sexual assault to Queensland Police and the matter is the subject of an ongoing investigation. The submissions indicate that no charges concerning the alleged rape have been presented. Even so, having regard to the analysis in both JDT and Singh, I accept that publishing the Complainant's name and other identifying details in these circumstances would be at odds with the protections for complainants set out within the Sexual Offences Act. For that reason, I grant the application and order that disclosure of the Complainant's name be prohibited and that the Commission's file in the matter (AD/2023/125) be withheld from release or search in order to prevent the Complainant being identified from those documents. As well, and for the same reason, I consider it appropriate to de-identify the Firsts and Second Respondents.
Orders
- The application is granted
- The Commission will appoint an accredited interpreter in the Nepalese language for the hearing and bear the costs of that appointment.
- The Complainant is permitted to give evidence at the hearing either behind a screen or partition or in circumstances where the Second Respondent and the Complainant are in separate rooms within the Commission precinct.
- The Commission will engage security officers to be present for the duration of the hearing and bear the costs of that engagement.
- In order to prevent publication and disclosure of the Complainant's identity, the parties are de-identified and the Commission orders that disclosure of the Complainant's name, and any identifying details, is prohibited.
- The Commission's file in this matter is withheld from release, publication or search entirely.
Footnotes
[1] [2024] QIRC 193
[2] [1995] Qd R 10
[3] R v O'Dempsey (No 3) [2017] QSC 338
[4] Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
[5] Neil v Lee (No. 2) [2024] QIRC 149
[6] [2021] QIRC 309
[7] [2022] QIRC 146
[8] [2021] QIRC 135
[9] [2022] QDC 147
[10] Ibid, [30].
[11] [2024] QCAT 377, [11].
[12] Ibid, [12]-[13].
[13] Ibid, [19].