Angelopoulos v Silkwire Pty Ltd & Anor [2022] QCAT 52

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Angelopoulos v Silkwire Pty Ltd & anor [2022] QCAT 52 ANGELOS ANGELOPOULOS (applicant) v SILKWIRE PTY LTD (respondent) BEN SALLERAS (second respondent) APPLICATION NO/S: ADL078-20 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 15 February 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Senior Member Traves ORDERS: The application for a non-publication order is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where applicant attached a supporting letter to an application for extension of time to file evidentiary material – where Tribunal directed applicant to give a copy of the application and supporting material to the respondent – where applicant applied for non-publication order in respect of the supporting material – how the right to privacy in s 25 of the Human Rights Act 2019 (Qld) intersects with the discretion to make a non- publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) - whether a non- publication order should be made Human Rights Act 2019 (Qld), s 25, s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Brading v Suskova ([2017] QCAT 373 Kracke v Mental Health Review Board (2009) 29 VAR 1 PBU & NJE v Mental Health Tribunal [2018] VSC 564 PJB v Melbourne Health (2011) 39 VR 373 APPEARANCES & -- 1 of 6 -- 2 REPRESENTATION: Applicant: Self-represented Respondent: Carter Newell Lawyers This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] On 15 November 2021 the applicant applied for a non-publication order in respect of medical evidence he had filed in support of his application to extend time which had been filed on 15 October 2021. The medical evidence is a letter prepared by North and West Remote Health dated 14 October 2021. The order sought is that the evidence not be provided to the respondents, or made available more broadly. Background to the application for non-publication orders [2] The applicant alleges he has been subject to indirect discrimination on the basis of his impairment (PTSD, anxiety and an elbow and pelvic fracture in December 2018) in relation to accommodation in contravention of s 83 of the Anti-Discrimination Act 1991 (Qld). In brief, the applicant claims he was subjected to a term which he could not comply with, namely, that he was to remain living at the relevant dwelling following the floods in early February 2019 that rendered it “uninhabitable”. The applicant seeks $1,400 in compensation and a written apology from the respondents as well as any further order the Tribunal deems appropriate. [3] The respondents deny they engaged in any indirect discrimination on the grounds: no term was imposed as the applicant chose to return to the premises and declined an opportunity afforded to him to vacate; the applicant refused offers of gratuitous assistance made by the respondents and the second respondent’s insurer, the army, Council and other charities; the applicant accepted compensation by way of rent reduction for a period; the applicant was offered the opportunity to end his tenancy early without penalty but elected to remain while refusing to facilitate any cleaning or rectification work; and was issued a notice to leave with the usual two months notice and a further two months extension. Further, the respondents deny the applicant was treated ‘less favourably’ or that any treatment he received was ‘because of’ his impairment. The respondents seek an order that the claim be dismissed and costs. [4] On 18 August 2021 the parties were directed to file statements of evidence. The applicant’s statements were due on 29 September 2021. [5] On 29 September 2021 the applicant filed an application for an extension of time but did not serve the application on the respondents. The applicant sought an extension of time until 12 October 2021 to file his statements. The respondents opposed the application on the bases the applicant had been given ample time to file his statements (40 days instead of the usual 28 days) and that the medical certificate he relied upon did not provide evidence of any incapacity on the applicant’s part from 18 August until 28 September 2021. They also questioned why the applicant had waited until the day prior to the day the material was due to make his application. -- 2 of 6 -- 3 [6] On 12 October 2021 the Tribunal issued directions granting the applicant the requested extension. [7] On 15 October 2021 the applicant filed an application seeking a further extension of time ‘subsequent 12 December 2021’ to file his statements. The application attached a letter from Dr Griffiths dated 12 October 2021 and a letter from NWRH dated 14 October 2021. [8] On 8 November 2021 the Tribunal made directions that the applicant was to give a copy of the application for extension of time filed on 15 October 2021 (including supporting medical documentation) to the respondents by 15 November 2021. The respondents were directed to file and serve submissions addressing the application for an extension of time and as to whether the proceedings should be dismissed for want of prosecution or failure to comply with the Tribunal Directions of 12 October 2021. [9] On 15 November 2021 the applicant applied for a non-publication order in relation to the NWRH letter dated 14 October 2021. Submissions in relation to the non-publication order [10] The applicant refers to the right to privacy in s 25 of the Human Rights Act 2019 (Qld) (HRA) and claims that his right to privacy may be compromised which will have ‘detrimental health outcomes’ if the letter is published or made available to others and further that his human rights will be ‘alienated’. He also says that it is not in the public’s or respondents’ interests, or of use, to know the personal and private details of his medical condition. [11] The respondents object to the application for non-publication. They submit that the Tribunal may make an order for non-publication if s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) has been satisfied. They argue that the application has been improperly brought as it appears the applicant’s intention was ‘not to avoid sensitive data being made available on the public record but to override the direction of Member Traves which requires the applicant to serve upon the respondents a copy of the medical evidence filed on 15 October 2021’. The respondents submit that the only grounds potentially relevant to the applicant’s application are s 66(2)(b) and/or s 66(2)(e). They say that the applicant has not stated how or why the disclosure might have an impact on his health, nor why the information is so sensitive that the respondents ought to be prevented from knowing the basis upon which the applicant claims an ongoing incapacity which prevents him from progressing his own application expeditiously. Further, it is submitted, the applicant has repeatedly delayed the progress of the matter on medical grounds but is selective in that he will participate in conciliation conferences and make interlocutory applications but not file his evidentiary material. The respondents referred to Brading v Suskova [2017] QCAT 373 at [33] where the Tribunal, while acknowledging that medical information may be a matter of some sensitivity for the applicant, held that it is central to the administration of justice that proceedings are open and transparent. Consideration [12] Section 66 of the QCAT Act provides: 66 NON-PUBLICATION ORDERS -- 3 of 6 -- 4 (1) The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order— (a) the contents of a document or other thing produced to the tribunal; (b) evidence given before the tribunal; (c) information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified. (2) The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary— (a) to avoid interfering with the proper administration of justice; or (b) to avoid endangering the physical or mental health or safety of a person; or (c) to avoid offending public decency or morality; or (d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or (e) for any other reason in the interests of justice. [13] Section 48 of the HRA provides that to the extent possible that is consistent with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. This of course applies to the QCAT Act. [14] Section 25 of the HRA provides as follows: A person has the right— (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked. [15] Section 25(a) includes the right not to have a person’s privacy unlawfully or arbitrarily interfered with. The purpose of the right to privacy has been held to be to protect people from unjustified interference with their personal and social individuality and identity.1 [16] The concept of arbitrariness has been held to require consideration of the proportionality of the interference.2 The ‘internal limitations’ (lawfulness and arbitrariness) do not reduce the substantive meaning of the right but rather forms part of analysing whether any interference is justified.3 [17] The meaning of ‘arbitrary’ was considered in PJB v Melbourne Health4 by Bell J in the context of his consideration of the right in equivalent legislation in Victoria.5 There Bell J concluded that the right: 1 Kracke v Mental Health Review Board (2009) 29 VAR 1 at [619]-[620]. 2 PJB v Melbourne Health (2011) 39 VR 373 at 395. 3 PBU & NJE v Mental Health Tribunal [2018] VSC 564 at 179. 4 (2011) 39 VR 373. 5 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 13(a). -- 4 of 6 -- 5 extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.6 [18] It is uncontroversial that the applicant has a right to not have his privacy unlawfully or arbitrarily interfered with. The issue arises as to how s 66 of the QCAT Act should be construed in light of s 25 of the HRA and whether a non-publication order should be made in these circumstances. [19] In Momcilovic v The Queen7 the High Court considered s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Section 32 is virtually identical to s 48 of the HRA. The court proceeded on the basis that the section requires “statutes to be construed against the background of human rights set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms…”8 [20] Section 48 of the HRA requires me to interpret s 66 of the QCAT Act to the extent possible in a manner compatible with human rights and, in particular here, s 25 of the HRA. [21] The grounds in s 66(2) are the only grounds upon which a non-publication order can be made. The only potentially relevant ground is s 66(2)(e) “for any other reason in the interests of justice”. In applying “in the interests of justice” I will assume for the purposes of this application that I must take into account the applicant’s right to privacy and, as far as possible while being consistent with the purpose of the QCAT Act, interpret s 66(2) against the background of that right. [22] The applicant submitted the letter in support of his application for a further extension of time. In the usual course, any document filed in the Tribunal upon which the Tribunal might rely should also, for reasons of procedural fairness, be given to the other side. That the parties should be appraised of the evidence the other relies upon is fundamental to the due and proper administration of justice. [23] The application of s 66(2)(e) of the QCAT Act has been considered by Senior Member Brown in Brading v Suskova9 where he held: Ms Suskova has sought a non publication order. A non-publication order may be made if the Tribunal considers the order is necessary to avoid interfering with the proper administration of justice; to avoid endangering the physical or mental health or safety of a person; to avoid offending public decency or morality; or to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or for any other reason in the interests of justice. The non publication order sought by Ms Suskova relates to personal medical information. Ms Suskova’s medical condition has been referred to in previous adjudication proceedings, but not the specific details of that condition. A non publication order should 6 (2011) 39 VR 373 at 393-4, [80]-[83]. 7 [2011] HCA 34. 8 Ibid. 9 [2017] QCAT 373 at [33]. -- 5 of 6 -- 6 only be made in circumstances where s 66 of the QCAT is clearly engaged. The only ground in s 66 that might be relevant to Ms Suskova’s application for a non publication order is s 66(2)(e). Whilst I appreciate that the medical information, the subject of Ms Suskova’s application, may be a matter of some sensitivity for her, it is central to the administration of justice in the State of Queensland that proceedings in courts and Tribunals are open and transparent. I am not persuaded that it is in the interests of justice for a non publication order to be made and I decline to do so. [24] In this case, I do not consider it to be in the interests of justice for the letter to be withheld from the respondents. In fact, it is in the interests of justice that it be produced to them. The applicant’s right to privacy has, in my view, not been unlawfully or arbitrarily interfered with. That a document should be produced to the respondents here in order to ensure the due and proper administration of justice is not, in my opinion, an arbitrary interference with the applicant’s privacy. In the circumstances, the application for a non-publication order is refused. -- 6 of 6 --