Van Zundert v State of Queensland (Queensland Health)
[2025] QIRC 131
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- Unreported Judgment
- Van Zundert v State of Queensland (Queensland Health)[2025] QIRC 131
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Van Zundert v State of Queensland (Queensland Health)[2025] QIRC 131
Van Zundert v State of Queensland (Queensland Health)[2025] QIRC 131
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Van Zundert v State of Queensland (Queensland Health) [2025] QIRC 131 |
PARTIES: | van Zundert, Adrien Antonius Jozef Applicant v State of Queensland (Queensland Health) Respondent |
CASE NO: | D/2024/44 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 23 May 2025 |
HEARING DATE: | 23 May 2025 |
MEMBER: | Pratt IC |
HEARD AT: | Brisbane |
ORDERS: |
unless the affidavits listed above have all of the names of any patients identified in those affidavits redacted or otherwise de-identified prior to search or release. |
CATCHWORDS: | INDUSTRIAL LAW – SUPPRESSION ORDER – application by respondent for suppression of patient names – consideration of principles applicable to suppression orders – where respondent submits the patient information is confidential information that ought to be protected – where respondent submits that identity of patients not necessary for the issues of the dispute – where respondent submits there is no sufficient public interest in persons outside proceedings being informed of or having access to patient names – where respondent submits discretion to anonymise ought to be exercise to avoid prejudice to the administration of justice – where applicant does not oppose the respondent's application – held that respondent's submissions be accepted and the reasoning therein adopted – application granted |
LEGISLATION: | Hospital and Health Boards Act 2011 (Qld) s 139, s 142 Industrial Relations Act 2016 (Qld) s 261, s 451, s 580 Industrial Relations (Tribunals) Rules 2011 (Qld) r 97 |
CASES: | Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 |
APPEARANCES: | Mr C Massey of counsel, instructed by Ms M Wakefield of Maurice Blackburn, for the applicant Ms A Freeman KC of counsel, instructed by Ms S McRostie of MinterEllison, for the respondent |
Reasons for Decision
- [1]On the morning of and prior to a mention listed for this matter 23 May 2025, the State of Queensland (Queensland Health), the Respondent in the substantive proceedings ('Respondent'), filed an application in existing proceedings seeking suppression orders. There is a degree of urgency to this application. The orders sought are to suppress the names of patients who have been identified in affidavits that have already been filed in the substantive matter. Those affidavits are part of the Commission file and are therefore subject to public search pursuant to the principle of open justice. The Respondent prepared written submissions and a draft set of orders, to which the Applicant did not object, appropriately in my view for reasons that I set out below.
- [2]The Respondent's submission set out what I consider to be an accurate and relevant statement of the relevant law, the relevant facts, and appropriate application of the law to those facts and therefore reasoning with which I entirely agree. Rather than reinventing the wheel, so to speak, and in light of the degree of urgency attached to this application, I am prepared to accept and adopt the Respondent's submissions which relevantly say:[1]
Introduction
- The Respondent to the substantive proceedings of D/2024/44 seeks orders from the Commission to suppress of withhold the names of patients referred to in evidence filed by the parties in relation to the proceedings.
- The application is not opposed by the Applicant.
The proceedings
- On 10 May 2024, the Applicant notified the Commission pursuant to s 261 of the Industrial Relations Act 2016 (IR Act), of the existence of an industrial dispute between himself and the Respondent.
- Following an unsuccessful conciliation of the dispute, Commissioner Pratt issued directions to prepare the matter for arbitration.
- In accordance with the directions, the parties have filed and served affidavit material. The affidavit material filed refers to names of Patient JJ, Patient DG and Patient JP (the Patients). The Respondent seeks an order from the Commission suppressing or withholding the Patients' names as set out at Exhibit SKM-02.
Power to grant an order for suppression
- It is well established and recognised by the Commission that the paramount public interest requires the court proceedings be open to the public and discussed and reported publicly.[2]
- Rule 97 of the Industrial Relations Tribunal Rules 2011 (IR Rules) provides the Commission may, in the public interest or for another reason the Commission considers appropriate
- withhold publication of a document; or
- modify a document, before public, in a way that does not affect the essence of the document.[3]
- Section 451 of the IR Act bestows general powers on the Commission to do all things necessary or convenient to be done for the performance of its functions.[4]
- Section 580(5) of the IR Act provides that the Commission 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.
- Under s 580(7) of the IR Act, the direction may be given if the Commission considers:
- disclosure of the matter would not be in the public interest; or
- persons other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter
- Vice President O'Connor considered an application for workers to be identified in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[5] and held:
[40] The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; ‘that justice should not only be done but should manifestly and undoubtedly be seen to be done’. This is a central feature of the administration of justice under the common law.
[41] The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in ‘open court’; second, that evidence is communicated publicly to those present in the court; and, third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
[42] However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
[43] The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power…
[44] It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
- In the matter of J v L & A Services Pty Ltd (No 2)[6], the Queensland Court of Appeal outlined the six principles governing the exercise of the discretion to make suppression orders:
- 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….
- The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
- No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
- Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
a) Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
b) A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
c) An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
- ...information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other "collateral disadvantage", to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
- For the following reasons, the Commission can be satisfied that circumstances exist which would justify the making of orders to suppress or withhold the Patients' names referred to in the material filed in the proceedings.
Grounds
- The Patients identified in the evidence filed in these proceedings were at the relevant time, persons receiving public sector health services. As a consequence, information by a person in the person's capacity as a designated person (i.e., a public service employee, health service employee, or health service professional) from which the Patients may be identified is confidential information pursuant to section 139 of the Hospital and Health Boards Act 2011 (Qld) (HHB Act). Furthermore, section 142 of the HHB Act makes it an offence for a designated person to disclose such information unless required by law or permitted by the HHB Act. No such exceptions apply to this matter. Therefore, the identity of the Patients ought to be protected in these proceedings from public or release to members of the public.
- The Respondent further submits that the identity of the Patients is not necessary for the issues the subject of this dispute to be ventilated and adjudicated before the Commission and anonymity required to protect the privacy of the Patients. The issues subject of this dispute can be appropriately ventilated while the Patients remain anonymous.
- Further, there is no sufficient legitimate public interest in persons outside these proceedings being informed of, or having access to, the Patients' names or material filed in this proceeding which refers to the Patients' names, particularly given the information is deemed confidential under the HHB Act with disclosure an offence.
- It is submitted that the discretion to anonymise the affidavit material in this case ought to be exercised to 'avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm[7].
- The Applicant consents to the Commission making the orders at Exhibit SKM-02.
Conclusion
- The Commission can be satisfied that circumstances exist which would justify the orders sought.
Consideration
- [3]As I have alluded to above, I consider the statement of relevant law in the submission to be correct. I respectfully agree with and adopt his Honour O'Connor VP's statement of the principles of open justice in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[8] which the Respondent has referred me to. There is clearly a discretionary power with the IR Act and IR Rules to make orders preventing members of the public from viewing some, or even all in relevant cases, of the documents that form part of proceedings in the Commission. The question of course is whether the Commission should exercise that power.
- [4]I accept the submission that the discretionary power should only be used where doing so falls within one of the exceptions to the principles of open justice stated by the Court in J v L & A Services Pty Ltd (No 2)[9]. As the Respondent has argued, preventing patient names (and their relevant conditions and procedures in some instances) from being subject to public scrutiny does not impact on the substantive matter. There is no legitimate public interest that I can think of where persons outside the proceedings ought to be informed of or have access to the patient's names. The proposed orders also go no further than necessary to avoid a frustrating the protections enshrined in s 142 of the HHB Act. I therefore agree with and adopt the Respondent's submissions and order accordingly.
Orders
- Pursuant to s 580(5)-(6) of the Industrial Relations Act 2016 (Qld), the following affidavits filed in this matter be withheld from search and release:
- Affidavit of Professor Adrien Antonius Jozef van Zundert filed 3 March 2025 and 2 May 2025;
- Affidavit of Professor Hildegard Wyssusek filed 24 April 2025;
- Affidavit of Dr Katherine Hames filed 17 April 2025; and
- Affidavit of Ms Sara Kate McRostie filed 23 May 2025.
unless the affidavits listed above have all of the names of any patients identified in those affidavits redacted or otherwise de-identified prior to search or release
Footnotes
[1] Modified to de-identify the relevant patients.
[2] Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 ('Aurizon').
[3] Industrial Relations (Tribunals) Rules 2011 (Qld) r 97.
[4] Industrial Relations Act 2016 (Qld) s 451(1).
[5] Aurizon (n 2).
[6] [1995] 2 Qd R 10 ('L & A Services').
[7] Aurizon (n 2) [44].
[8] Aurizon (n 2).
[9] L & A Services (n 6).