Williams v State of Queensland (Metro North Hospital and Health Service)
[2025] QIRC 216
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- Williams v State of Queensland (Metro North Hospital and Health Service)[2025] QIRC 216
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Williams v State of Queensland (Metro North Hospital and Health Service)[2025] QIRC 216
Williams v State of Queensland (Metro North Hospital and Health Service)[2025] QIRC 216
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Williams v State of Queensland (Metro North Hospital and Health Service) [2025] QIRC 216 |
PARTIES: | Williams, Livia Applicant v State of Queensland (Metro North Hospital and Health Service) Respondent |
CASE NO: | D/2025/49; GP/2025/29 |
PROCEEDING: | Application for injunction and suppression |
DELIVERED ON: | 30 July 2025 |
HEARING DATES: | 30 July 2025 |
MEMBER: HEARD AT: | Pratt IC Brisbane |
ORDERS |
|
CATCHWORDS: | INDUSTRIAL LAW – INJUNCTIONS – where applicant seeks the respondent be restrained from releasing investigative reports to next of kin of two patients who passed away after surgery the applicant was involved in – where applicant alleges reports falsely criticised the applicant for an unlawful reason (exercise of workplace rights) – consideration of the relevant law for injunctions – held prima facie case made out – held balance of convenience favours the applicant – application for injunction granted. INDUSTRIAL LAW – SUPPRESSION ORDERS – consideration of relevant law for suppression orders – where applicant argues proceedings would be rendered nugatory if the applicant's name were not suppressed – consideration of the open justice principles – held applicant's name should not be suppressed – consideration of whether patient identities should be supressed – held that identity of patients should be suppressed – application for suppression granted in part. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 306, s 473 Hospital and Health Boards Act 2011 (Qld) s 139, s 132 |
CASES: | Alderding v State of Queensland (Queensland Health) [2022] QIRC 268 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 5 Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations [2021] QIRC 263 Biddle v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2) [2021] QIRC 321 Dalley & Ors v Kelsey & Ors [2018] ICQ 006 Dhanapathy v State of Queensland (Queensland Health) [2023] QIRC 017 Electrical Trades Union of Employees Queensland v Brisbane City Council [2017] QIRC 90 Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 332 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 91 McDermott Australia Pty Ltd v Australia’s Workers Unit [2011] FCA 303 Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136 Mutonhori v Mount Isa City Council [2024] QIRC 41 Neil v Lee (No 2) [2024] QIRC 149 Police Federation Australia v Nixon [2008] FCA 467 Rutter v State of Queensland (Queensland Health) [2023] QIRC 054 Sane v State of Queensland (Queensland Health) [2023] QIRC 143 Shizas v Commissioner of Police [2017] FCA 61 Turay v Workers' Compensation Regulator (No. 2) [2023] QIRC 169 White v State of Queensland (Queensland Health) [2023] QIRC 49 Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 329 |
APPEARANCES: | Mr P Boncardo of counsel instructed by Ms A Smeaton of Cooper Grace Ward for the Applicant. Ms M Brooks of counsel instructed by Ms H Smith of MinterEllison for the Respondent. |
Reasons for Decision
Delivered ex tempore
- [1]This is an application in existing proceedings for interim relief in the form of an injunction and orders for suppression of patient names and the Applicant’s name. The Applicant is a surgeon working within a specialised unit of the Respondent’s health services. The Applicant’s substantive matters have been joined by consent. Each of those matters alleges that virtually the same facts constitute, in the case of matter GP/2025/29, contraventions of the general protections (adverse action) provisions within the Industrial Relations Act 2016 ('IR Act'), and, in the case of matter D/2025/49, contravention of relevant industrial instruments that would give rise to the Commission’s power to arbitrate to resolve a dispute.
- [2]Initially, the Applicant sought to join the Office of the Health Ombudsman and have various orders applying to it. However, that part of the application has been withdrawn. The Applicant seeks temporary orders preventing the Respondent from releasing investigative reports to the next of kin of two patients who passed away after surgery. The Applicant was involved in each relevant surgery. As discussed in hearing today, if the Applicant succeeds in the substantive matter, a more enduring or permanent order as to an injunction would be sought.
- [3]In short, the Applicant alleges that each of the reports were the subject of unlawful influence by a supervisor who is the director of the area in which the Applicant works. The influence is said to be in the form of false criticism of the Applicant’s work in each case. In one case, it is also alleged that the severe risk and nature of the patients’ condition was misrepresented or understated.
- [4]It is said to be unlawful because the Applicant alleges that that person influenced the material in each report because of several exercises by the Applicant of workplace rights. Namely, complaints about that person’s conduct towards the Applicant, including sexual harassment, victimisation and discrimination. There is a degree of urgency to the application in existing proceedings. On 25 July 2025, after a short hearing, I issued consent orders providing for a truncated timeframe for filing of submissions in the hearing of this application in the existing proceedings.
- [5]The reason for the urgency is that today is the day upon which the Respondent has already pre-arranged provision to the family of one of the deceased patients, one of the abovementioned reports, into the circumstances regarding that patient’s passing whilst in the care of the Respondent. That report is referred to as a "clinical incident analysis report". For ease of reference, I will simply refer to it as "report" or a "CIA report".
- [6]The patient in that case is referred to as "patient A". I propose to deal first with the application for interim injunctive relief. I will then deal with the application for suppression of patient names, confidential information about their health and treatment and the Applicant’s name.
The injunction application
- [7]As to the injunction application, there are two relevant patient reports. The first is for patient A and the second is for "patient B".
- [8]At the risk of oversimplifying the nature of the CIA reports, they are the culmination of an investigation into the causes of each patient’s death. Due to the fact that the Applicant carried out surgical procedures in both cases, the Applicant’s role, as well as the relevant condition suffered by each patient and timeframes, as well as circumstances concerning what decisions were made, are all things that each report deals with.
Applicant's evidence
- [9]As to the Applicant’s evidence, the Applicant has provided a substantial affidavit filed 23 July 2025 and a supplementary affidavit filed 28 July 2025. The Applicant is a highly trained and very qualified specialist surgeon with an extensive employment history, both at the current hospital and several others, including others in other states of Australia. Having regard to the relevant legal tests which I discuss later, in particular, the test of a prima facie case and the pressing need for a decision, it is useful to borrow from the Applicant’s submissions on the relevant facts that the Applicant asserts.
- [10]I observed that each of those asserted facts in the Applicant’s submissions is carefully footnoted by reference to the Applicant’s affidavit. We discussed other evidence in hearing today, such as the affidavit of Dr Graham filed by leave today. I summarise the Applicant’s evidence as follows:
- When the Applicant was a surgical trainee in 2014, a senior supervising surgeon sexually harassed the Applicant.
- In 2015, whilst the Applicant was working in another state, a news article was published alleging sexual harassment by a senior supervising surgeon. The abovementioned alleged sexual harasser contacted the Applicant by telephone and accused the Applicant of being the complainant, which was denied.
- At the time, the Applicant did not formalise the complaint as the Applicant was located in a different hospital and feared reprisal due to the senior person’s influence over the process of becoming qualified in the relevant field.
- However, in 2023, when that senior practitioner became responsible for supervising the Applicant, the Applicant alleges unfavourable treatment, different to that of all other surgeons in the unit. The Applicant confronted the senior practitioner about this situation and alleges that the senior practitioner admitted to the sexual harassment allegations.
- The Applicant complained to relevant human resource management representatives and soon after became the subject of vexatious complaints that had been made anonymously. Further still, an anonymous letter was written by someone and sent to the family of patient A. In that letter, there were allegations that the Applicant was responsible for that patient’s death and that there was some form of negligence involved. The Applicant alleges that another practitioner, not the senior one mentioned above, but a friend of and co-worker to that person, was involved in sending that letter which the Applicant alleges is false and defamatory.
- Soon after this, the other practitioner openly criticised the Applicant’s performance without proper basis for doing so. The Applicant took some time off due to a medical condition and upon attempting to return to work, being certified and cleared to return to work, the Respondent is alleged to have prevented that return, citing various reasons including potential harm arising from a psychosocial hazards within the culture in the workplace and also, the need for supervision of the Applicant in surgical practice.
- Notwithstanding the Applicant’s complaints against the supervising practitioner, that person has remained in a position of control and supervision that includes involvement, to some degree, in preparing the abovementioned CIA reports into the death of the relevant patients. The CIA report into patient A is alleged to have initially found that the surgery was performed diligently, that the surgeons were not responsible for the death of that patient, and that the incident should be downgraded from a severity assessment code 1, or "SAC 1", to a SAC 2.
- [11]As an aside, I observed from the Applicant’s evidence that a SAC 1 is stated to be an incident resulting in a death or likely permanent harm that was not reasonably expected as an outcome of the health care. Examples include performing the wrong surgery, or surgery on the wrong side of a patient. A SAC 2 is temporary harm which is not reasonably expected as an outcome of the health care. Examples of a SAC 2 include additional investigations being performed or surgical intervention.
- [12]Coming back to the asserted facts by the Applicant:
- Despite the CIA report into patient A initially finding that the incident should be downgraded to a SAC 2, that report was subsequently amended. That amendment occurred at around the time that the Applicant’s lawyers began complaining more openly about exclusion from the workplace by the supervising practitioner and requesting that that person be stood down.
- The amendment made to the CIA report for patient A was substantial in effect; the decision to downgrade to a SAC2 was reversed, and the incident was elevated back up to a SAC1 status.
- That amendment to the CIA report for patient A was made on the same day it is alleged that the Applicant lodged a formal complaint about the supervising practitioner, requesting therein that that person be stood down.
The relevant law on interim injunctions
- [13]As to the relevant law on interim injunctions, the parties appear not to disagree over what the relevant principles are, as a matter of law. I will set them out briefly, however, to be thorough. In Electrical Trades Union of Employees Queensland v Brisbane City Council,[1] his Honour, O'Connor DP, as his Honour then was, set out the principles for interim injunctions pursuant to section 473 of the IR Act. His Honour noted that the correct test is well-settled, citing McDermott Australia Pty Ltd v Australia’s Workers Unit,[2] his Honour observed that there are two elements to the test.[3] These were discussed in hearing today, and the parties agree.
- [14]The first element is whether there exists a prima facie case, in the sense that, if the evidence remains as it is at the time of a hearing of the application, there is a probability that, at the hearing of the action, the Applicant will be held entitled to relief. The test does not require the "determination that it will be more probable than not that the Applicant for an injunction will succeed at hearing". Rather, the test requires concluding only that there is a "sufficient likelihood of success to justify in the circumstances the preservation of the status quo". Her Honour, Dodds-Streeton J, went on to note that the second element of the test was a balancing of the inconvenience or injury that an Applicant would likely suffer if an injunction were refused, as compared to the injury that a Respondent would suffer if an injunction were granted.[4]
- [15]The decision of the High Court of Australia in Australian Broadcasting Corporation v O'Neill[5] was followed by his Honour, Martin J, as his Honour then was, in Dalley & Ors v Kelsey & Ors[6] in relation to the principles governing the granting of interim injunctions.[7] As I have noted previously, the first is whether the Applicant has made out a prima facie case. That is to say that, if the evidence remains as it is at the relevant time, there is a probability that, upon hearing, the Applicant will be deemed entitled to relief. The second key element his Honour observed is whether inconvenience or injury which the Applicant would likely suffer if an injunction were refused, as balanced against the injury that the relevant Respondent would suffer if the injunction were granted. His Honour noted that the test requires one to refrain from speculating about the evidence that would be adduced at a final hearing.[8]
- [16]As well, the decision maker should avoid putting onus upon the Respondent to demonstrate that the Applicant’s case has been disproved.[9] The decision maker must assess the strength of a prima facie case upon which the Applicant relies and, when evaluating where the balance of convenience lies, weigh appropriately the inconvenience and prejudice that either party will suffer in either situation: that is, where the injunction is granted, and where the injunction is refused.[10]
- [17]What, though, of the reverse onus or rebuttable presumption that resides in s 306(2) of the IR Act? As the Applicant points out, and the Respondent agrees, pursuant to s 306(3) of the IR Act, that does not apply in relation to orders for interim injunction. The effect that this has on an application such as this one has been carefully considered in the federal jurisdiction, which is legislatively virtually identical in relevant parts.
- [18]I am influenced by the detailed and instructive consideration give to this issue by his Honour, Ryan J, in Police Federation Australia v Nixon,[11] which is a case that the Applicant has referred me to. In that judgment, his Honour relevantly held, at [69], that this provision prevents the court, in interlocutory injunction applications, from simply relying on the presumption that the Respondent’s conduct was for a prescribed reason.
- [19]But that does not, his Honour found, prevent the court from "having regard to the availability of the presumption in the final determination of this application" when assessing whether there is a serious issue to be tried.[12] His Honour also held "that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of each case as part of the exercising of the general discretion to grant or withhold interlocutory relief".[13]
Consideration of the injunction application
- [20]In my consideration as to whether an injunction ought to be imposed, the first step is whether a prima facie case is made out. I have set out above a summary of the Applicant’s asserted evidence. It’s clear on the asserted evidence, on the case as it currently stands, the Applicant alleges the influence by the supervising doctor and another senior colleague on both of the CIA reports was unlawful and had an injurious effect on the Applicant’s employment or a prejudicial alteration to the Applicant’s position.
- [21]True, the Applicant cannot rely on the rebuttable presumption at this stage. I accept that the Applicant does not need to. I expect, from the Respondent’s submissions and the material that we discussed in hearing today as filed already (for example, open correspondence on this issue between lawyers) that its case will be that there were lawful reasons motivating whatever conduct the relevant practitioners engaged in that influenced the outcome of each CIA report.
- [22]If such evidence is put on, and if it is accepted, the Respondent may well rebut the presumption. But from this early vantage point, I can clearly see that, if the Applicant’s evidence is preferred, the Applicant will carry the day. Likewise, if the Respondent’s foreshadowed case is preferred, the application in respect of adverse action pertaining to these two CIA reports will be dismissed.
- [23]The Respondent submits that the Applicant’s case in respect of the CIAs is a weak one. It argues that the CIAs are not about the Applicant, because they are about patient A and patient B, respectively. I have difficulty accepting that argument. It is clear to me, on my assessment of each of the CIAs, that they do make very clear reference to the work carried out by the Applicant. I cannot therefore accept the submission that the CIAs are "not about" the Applicant.
- [24]The Respondent also argues that the CIAs are not highly critical of the Applicant’s performance of the surgery as the Applicant alleges, and that it is not clear that any criticism of the Applicant in the CIAs constituted adverse action. I also have difficulty in accepting that submission, for a number of reasons. Firstly, I am of the view that it is very clear that the CIAs do criticise the work of the Applicant. The example pointed to by the Respondent in its written submissions in an attempt to downplay the criticism is actually a good one demonstrating the reverse. The reference in patient A’s CIA report to a "substandard anastomosis" is clearly critical of the work performed by whoever carried out that anastomosis. It is clear on the evidence that the Applicant is being criticised in the form of performing a "substandard anastomosis".
- [25]Secondly, I do not accept that the Applicant’s argument is limited to the CIA reports alone constituting adverse action. Rather, the Applicant’s case, as it stands at the moment, is that those reports are a result of adverse action carried out by relevant colleagues which was unlawful because of what motivated those colleagues to act in the way alleged. So, whilst it is clear the allegations included that the CIA reports constituted adverse action, there is more to it than that, in my opinion.
- [26]The Respondent also argues that the Applicant is not named in the amendment to the patient A CIA report more broadly. I do not accept that this constitutes some sort of anonymity as is suggested. The Applicant has clearly evidenced an allegation that the Applicant’s name has been provided to patient A’s family. It is clear, from even this early vantage point, that an arguable case has been made out that the Applicant’s identity is known to those persons. I cannot agree with the Respondent’s submissions that there is simply no foundation for the Applicant to assert that patient A’s CIA report squarely places blame for the patient’s death at the feet of the Applicant. That report, on my reading of it, clearly attributes blame.
- [27]Nor can I agree with the Respondent’s submission that the other patient’s CIA report is not "plainly critical of the Applicant". It speaks in terms of the work carried out by the Applicant and concludes by advising that the Applicant needs to be provided feedback and forms of supervision of technical advice through proctoring and mentoring. If that is not a criticism of the work carried out, it is hard to imagine what else it could be. Whilst it could clearly have been a lot more critical in its nature and is framed in a way that I can see appears as though the words were chosen carefully, it is still a criticism of the work carried out in my opinion.
- [28]The Respondent’s submissions that there is no evidence to support the Applicant’s assertion that the promulgation of the CIA reports will prejudicially alter the Applicant’s position is also one that I cannot accept. The submission focuses on what it claims is a lack of evidence regarding a change of credentialling or a scope of practice and employment status. As we discussed in hearing today, that may be true in a strict technical sense, but the submission ignores the potential prejudicial alteration to the Applicant’s position and potential harm to the Applicant’s employment in a broader sense. I accept the submissions in relation to the broadness of the phrase prejudicial alteration. Damage to reputation has a much farther-reaching effect than the potential it might have on later credentialling and scope of practice findings or the status of employment. And that effect is immediate.
- [29]The Respondent’s submission that there are no reasonable grounds to support the Applicant’s evidence and allegations about being singled out is not, in my opinion, persuasive. Again, it seems to avoid the central plank of the Applicant’s case. That is that whilst the CIA reports themselves allegedly constitute an instance of unlawful conduct, the influence that certain individuals had over the production of those reports is itself also argued by the Applicant to constitute unlawful conduct. There is, in my opinion, sufficient evidence put on so far by the Applicant that if accepted at a hearing of the matter, the Applicant’s case might well prevail. Whilst the finished product in the form of each CIA report is relevant, so too is the conduct of individuals who were involved in the process which brought each report into being. Quite simply, there is more to it than the Respondent deals within its argument.
- [30]I also cannot accept the Respondent’s submission that if accepted, the Applicant’s evidence represents little more than a tenuous link between the CIA reports and unlawful conduct. The Applicant’s evidence, if accepted, on my assessment of it, clearly leads to drawing an inference that the conduct that went into producing the reports and therefore the reports themselves was unlawful. That is the Applicant’s case as stated in the evidence presented so far.
- [31]Nor can I agree with the Respondent’s submission that the Commission would be required to assume that the abovementioned senior supervising practitioner drafted the relevant aspects of each CIA report that were highly critical of the Applicant and convinced the analysis team to accept those findings. The Applicant’s case is not so confined. As I see the Applicant’s case at this stage, it is that that particular senior supervising practitioner, and perhaps another, had a role of influence over each of those CIA reports. It is not confined to drafting or convincing.
- [32]Nor is the Applicant’s case limited in respect of the abovementioned supervising practitioner only in response to being made aware of the Applicant’s complaint dated 15 May 2025. That evidence is presented as a temporal link. However, the Applicant’s evidentiary case, as I construe it, is broader than that. The entire history of the exercise by the Applicant of workplace rights is relevant and argued to have been substantially the reason why that senior supervising practitioner, and others, acted relevantly in alleged unlawful ways.
- [33]The Respondent criticises the Applicant’s evidence as to being no more than conjecture. However, I consider this to be confusing the Applicant’s allegations about what inferences can be drawn from the Applicant’s evidence with the evidence itself. I therefore do not accept that submission.
- [34]In conclusion, I can see clearly each side’s case. Coming back to the relevant test of a prima facie case, I am satisfied that if the Applicant’s evidence is accepted in relation to this issue of the CIA reports, then the Applicant will be entitled to the relief sought. I therefore find that a prima facie case is made out.
- [35]As to where the balance of convenience lies, both parties appear to concede that their own interests in relation to prejudice are relevant, but also those of third parties, such as relevant families. During discussion in hearing today, it was confirmed that that is a concession that the Respondent feels obliged to the relevant families according to its own policies and its own good conscience to share the CIA reports. However, there is no authority that I am pointed to that requires the interests of third parties to be taken into consideration when weighing the balance of convenience. As I have observed earlier, the authorities which are agreed to by the parties state that the relevant test is an inquiry as to the prejudice as between an applicant and plaintiff if the application were refused, and whether that might be outweighed by any injury or prejudice to a defendant or respondent if the injunction were granted.
- [36]It is clear to me that should the CIA reports be published in the manner that is proposed, the Applicant will suffer a substantial prejudice. I do not accept the Respondent’s submissions playing down the gravity of reputational damage and personal distress arising from the disclosure of the CIA reports to the respective families. It is clear on the evidence that the Applicant’s identity is known. Thanks to one of her colleagues who has not surfaced yet, despite the attempts by the Respondent to find out who that person was, it is abundantly clear that patient A’s family knows exactly who is being referred to in the proposed CIA report concerning patient A. I accept the Applicant’s submissions that this exposes the Applicant to the potential for not only reputational damage but also litigation.
- [37]Likewise, I do not accept the Respondent’s submissions in relation to prejudice it would suffer by being prevented from engaging in a well-managed and open disclosure process. This application for orders is temporary. It is not preventing permanently the provision of the CIA reports to the relevant patient families, although that is foreshadowed if the Applicant succeeds in the proposed case. It is not, however, a reality at the present time. What is proposed in this application is merely postponing that process of disclosure pending the outcome of the legal process dealing with whether the production of those reports was tainted with an unlawful purpose.
- [38]I accept that if there is any regard to be had to third parties, the delay may present some degree of prejudice to those families. However, as I have noted, this is not a consideration I construe to be relevant to the process of weighing up where the prejudice lies. The Applicant merely seeks a holding back of the reports, the maintaining of the status quo pending the appropriate legal process being allowed to take its course. As noted above, the central gist of that process is an allegation that each of those reports was partly tainted by information that is borne of an unlawful purpose.
- [39]I appreciate the Respondent’s submissions that if the injunction were allowed, it would be delayed, but I find not prevented, necessarily, from facilitating open disclosure in accordance with the Australian Open Disclosure Framework that it refers me to. However, as I have referred to, it is putting it too high to argue that the Respondent is being prevented from engaging in that process. The nature of the application and the proposed orders is a temporary stay of the Respondent’s hand. It is not an application to prevent permanently the provision of the reports or indeed all of the information within them. Rather, some of the information within those reports is challenged on the basis of it being produced due to or out of an unlawful purpose carried out by particular individuals who the Applicant has named and provided evidence in relation to in these proceedings. Whilst that central issue is being resolved, I do not accept that there is the sort of prejudice befalling the Respondent that it argues to be the case.
Suppression
- [40]I turn now to the issue of suppression. I am referred to the oft-cited case of J v L & A Services Pty Ltd (No 2) ('L & A Services').[14] In that case, their Honours, Fitzgerald P and Lee J, set out six principles concerning the paramount principle of open justice and exceptions that might apply. As to the exercise of discretion to depart from that paramount principle, which I accept is a power this Commission has, I summarise in my own words as follows the six lodestars that their Honours set out in L & A Services:
- The paramount consideration is the due administration of justice being open and transparent;
- Suppression may be warranted when failing to do so might frustrate the purpose of proceedings or cause threat to national security;
- The exceptions to the principle of open justice are not based upon potential to deter parties from bringing proceedings, as 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; and
- The embarrassment, even severe, or financial harm, distress, or loss of privacy that a party might experience due to the nature of matters being litigated is not, on its own, a basis for exception.[15]
- [41]This last or sixth category is very relevant. It is worthwhile, I think, to remind myself of everything that the Court of Appeal said in this category, which was:
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 Tate. Additionally, when it is in the interests of a party or a witness which is relied on as the basis for the 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 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 pointed out by McHugh JA in John Fairfax & Sons Limited v Police Tribunal of New South Wales, if information is suppressed "proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods…"… 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 merit 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.[16]
- [42]
- [43]The Commission has many times refused applications seeking orders that were merely to avoid embarrassment or reputational damage, maintaining privacy, also rejecting arguments that refusing to grant such orders might discourage potential litigants.[19] His Honour, Merrell DP, observed in Neil v Lee (No 2) ('Lee')[20] that one of the primary consequences of the open justice principle was that "mere embarrassment, inconvenience or annoyance will not suffice to grant an application for suppression or non-publication".[21] Simply pointing to the possibility of or fear of violence will not be sufficient unless there is evidence proving that there exists a real risk of harm.[22]
Consideration of the suppression application
- [44]As to my consideration of the case for suppression, the substantive matter turns on what motivated the relevant people to act as they are alleged to have done. If unlawful motives infected the relevant actions to the required degree, then the Applicant will be entitled to remedies. None of that is tested, though. Allegations have been made and some evidence which is untested has been put on, but the Respondent’s case is yet to be put on and the matter is unheard. The Applicant argues that since reputational damage is one of the types of adverse action being endured, without the suppression orders sought, that claim will be rendered nugatory.
- [45]I am referred to a situation akin to a proceeding dealing with confidential information being misused. An example is a secret recipe case. It is argued that the open justice principle would result in the proceedings being rendered nugatory. That is because the public nature of the proceedings, the goal of which in that case is to keep the relevant information confidential, would actually result in a free and open publication of that confidential information.
- [46]I have read the Applicant’s submissions and discussed the submissions in hearing today. The difficulty I have with accepting that this case is akin to a confidential information case is that in a confidential information case, the information is a finite thing. In the case of a secret recipe, for example, it is the ingredients, measures of them and the method of combination and application of other elements like heat, cooling, and timing, et cetera. But the point is that at the time of the interlocutory application, those things are all finite, known and capable of becoming known more broadly if published as part of the open justice principle.
- [47]In the present case, however, the allegations pertaining to the Applicant’s skill in these two instances are untested. This matter may not even test those allegations because whether the Applicant erred is clearly a matter of someone else’s opinion. Even if that person held that opinion, whether it is true or it is not true is not the issue that is tried in the substantive proceedings, not the general protections proceedings at least. What the reverse onus of proof will require is satisfying the Commission that no unlawful motive was substantially behind the relevant actions by the relevant people. Whether they turn out to be right or wrong about their opinions is not the test. What the test is, is whether that person had a reasonable basis for saying and doing the impugned thing and whether that was infected by the alleged unlawful reason. See, for example, her Honour, Katzman J’s instructive judgment in Shizas v Commissioner of Police,[23] where her Honour laid down that principle.[24] That decision has been followed numerously since.
- [48]Coming back to the question of reputational damage as a form of adverse action, I accept that it is a possible form of adverse action. However, I do not accept that the testing of whether unlawful motives substantially infected the decisions or actions of the relevant people will result in further injury to reputation that would render the proceedings nugatory unless suppression is granted. That is even if, as I expect will be the case, the evidence involves some expression of technical opinions about what should have been done or how something might better have been done as part of any defence that may or may not be run. On my assessment, there is nothing like the amount of certainty to this case that there is to the example of a confidential information case. I do not see this case as one where the open justice principle would render the proceedings nugatory.
- [49]Accordingly, I find myself unable to accept the Applicant’s submissions in this regard. I am therefore not persuaded that this case, as regards suppressing the Applicant’s name, is one that falls within the very few exceptions to the open justice principle.
- [50]I have had regard to the Respondent’s submissions relating to patient information. I accept those submissions for the most part. I accept that the two relevant patients discussed in these proceedings, and who are mentioned in the CIA reports, were receiving healthcare and that their information that could be revealed in this case, and has already been disclosed, is information that is confidential pursuant to s 139 of the Hospital and Health Boards Act 2011 ('HHB Act'). I accept the Respondent’s submissions also that s 142 of the HHB Act makes it an offence for a designated person to disclose such information unless required by law or permitted by that Act. I also accept that none of those exceptions apply in this matter, as is submitted by the Respondent, and that accordingly, the identity and sensitive health information about both of those patients ought to be protected in these proceedings from publication or release.
- [51]I also accept the Respondent’s submissions that there is no legitimate public interest in persons outside of these proceedings being informed of, or having access to, those patient names or material about them filed in these proceedings which refers to their names or discloses their sensitive health information.
- [52]With that in mind, I am persuaded that an order suppressing the patient names or relevant confidential information about them is appropriate. I also agree that it is an appropriate exercise of the Commission’s discretion to withhold from release or search of the evidence given, records tendered or things exhibited in respect of the identities of and sensitive health information about patient A and patient B.
- [53]For reasons I have referred to already, I do not accept that the materials tendered as part of these proceedings are something that the relevant patient families would have a particular right or entitlement to access. If rights to accessing that sort of information exist elsewhere, then so be it. However, I do not see a need for exempting that particular class of persons from an order generally suppressing access to that confidential information within the Commission file or materials put on as part of these proceedings.
Conclusion
- [54]To conclude, I am persuaded that the Applicant has made out a prima facie case and that the balance of convenience weighs in favour of the interim injunction sought in relation to the release of patient CIA reports.
- [55]I am not persuaded that there is a sufficiently convincing case that the Applicant’s circumstances fall within one of the rare exceptions to the principle of open justice. I accept that there may be some discomfort at the prospect of speculation around why the supervising doctor allegedly influenced the CIA reports in each case. However, that is the nub of the substantive case, at least insofar as it relates to the CIA reports. And any embarrassment or even financial or reputational damage that comes from the open and transparent litigation of those matters falls within, in my view, the sixth category mentioned earlier in L & A Services. I am persuaded that there is a case for suppressing the identities and relevant confidential information of the above-mentioned patients. That should also go for any others who might be referred to in material that is filed or disclosed as part of the legal process.
- [56]I order accordingly.
Orders
- Until the hearing and final determination of matter GP/2025/29 and matter D/2025/49, the Respondent is restrained from releasing, disclosing or otherwise publishing the contents of patient A’s CIA report and patient B’s CIA report to the respective families of those patients.
- The affidavit material filed in these matters be anonymised with respect to both patient A and patient B.
- The application insofar as it relates to suppression of the Applicant’s name is dismissed.
- The identities and sensitive health information of patient A and patient B contained within the evidence given, records tendered or things exhibited in these proceedings be withheld from release or search to any person other than the parties.
Footnotes
[1] [2017] QIRC 90 ('ETU').
[2] [2011] FCA 303 ('McDermott').
[3] ETU (n 1) [13].
[4] McDermott (n 2) [24].
[5] (2006) 227 CLR 5.
[6] [2018] ICQ 006 ('Dalley').
[7] Ibid [27].
[8] Ibid [27], [35].
[9] Ibid [37]-[38].
[10] Dalley (n 6) [57].
[11] [2008] FCA 467 ('Nixon').
[12] Ibid [69].
[13] Ibid.
[14] [1995] 2 Qd R 10 ('L & A Services').
[15] L & A Services (n 14) 44-45.
[16] Ibid 45.
[17] [2021] QIRC 263.
[18] Ibid [40]-[46].
[19] Alderding v State of Queensland (Queensland Health) [2022] QIRC 268; Sane v State of Queensland (Queensland Health) [2023] QIRC 143; Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 91; Dhanapathy v State of Queensland (Queensland Health) [2023] QIRC 017; Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136; Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223; Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 332; Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 329; Rutter v State of Queensland (Queensland Health) [2023] QIRC 054; Mutonhori v Mount Isa City Council [2024] QIRC 41; Turay v Workers' Compensation Regulator (No. 2) [2023] QIRC 169; White v State of Queensland (Queensland Health) [2023] QIRC 49; Biddle v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2) [2021] QIRC 321.
[20] [2024] QIRC 149.
[21] Ibid [22].
[22] Ibid.
[23] [2017] FCA 61.
[24] Ibid [99].