Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 PARTIES: Algahamdi, Lina Saleh Ahmed (Applicant) v State of Queensland (Cairns and Hinterland Hospital and Health Service) (Respondent) CASE NO: B/2020/81 PROCEEDING: Application to reopen proceedings DELIVERED ON: 22 June 2021 MEMBER: Industrial Commissioner Dwyer HEARD AT: On the papers ORDER: 1. The application to reopen proceedings is dismissed; 2. The application for the suppression is dismissed; and 3. Any application as to costs is to be made within 14 days of the date of this decision. CATCHWORDS: INDUSTRIAL LAW – application to reopen reinstatement proceedings struck out for failure to comply with directions – application to reopen after more than four year delay – whether in the interests of justice to reopen proceedings –– request for suppression of -- 1 of 13 -- 2 name – whether circumstances an exception to principles of open justice LEGISLATION: Industrial Relations Act 2016 (Qld) ss 484, 485, 580 Industrial Relations Act 1999 (Qld) s 331 Industrial Relations (Tribunals) Rules 2011 (Qld) r 28 Service and Execution of Process Act 1992 (Cth) CASES: Bell v Blackwood (Workers’ Compensation Regulator) [2020] QIRC 37 Emaaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12 Fowler v Workers’ Compensation Regulator [2019] QIRC 149 Hogan v Hinch (2011) 234 CLR 506 J v L & A Services Pty Ltd [1995] 2 Qd R 10; (1993) 30 ALD 791; [1993] QCA 012 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136 Quaedvlieg and Others v Boral Resources (Qld) Pty Ltd [2005] QIC 73; 180 QGIG 1209 R v O’Dempsey (No 3) [2017] QSC 338 -- 2 of 13 -- 3 State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057 Reasons for Decision Background [1] On 18 June 2015, Dr Lina Saleh Ahmed Algahamdi filed an application for reinstatement with the Queensland Industrial Relations Commission ('the Commission'). [2] A conciliation conference in the matter was held on 7 July 2015. [3] On 11 December 2015, Dr Algahamdi's legal representatives filed a request for directions orders for the matter to proceed to hearing. [4] On 24 February 2016, the respondent filed an application to dismiss Dr Algahamdi's application for reinstatement. On 29 February 2016, Dr Algahamdi was notified through the Industrial Registry that a hearing date for that application had been set down for 16 March 2016. [5] Dr Alghamdi’s legal representatives withdrew on 3 March 2016. [6] Between 29 February 2016 and the hearing of the application to dismiss on 16 March 2016, Dr Algahamdi was contacted directly four times via email by the Commission and the respondent.1 She failed to appear on 16 March 2016 and no reasons were provided for her non-attendance. [7] It is noted that the email address for Dr Algahamdi provided by her previous solicitors on their notice of withdrawal as lawyer filed 3 March 2016 was incorrect. However, the error was identified early, and the correct email address was used to make direct contact between 29 February and 16 March 2016. It was the same email address which Dr Algahamdi used to file her application for reinstatement, and the same she has used for her application and communications in this current matter. Dismissal of the reinstatement application [8] In the decision by Deputy President O'Connor (as he then was) delivered on 19 May 2016 ('the 2016 decision'),2 Dr Algahamdi's application for reinstatement was dismissed in accordance with s 331 of the pre-amendment Industrial Relations Act 1999 (Qld). In the decision, His Honour found the following: 1 State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057, 12 [45]. 2 Ibid. -- 3 of 13 -- 4 [51] The chronology at [45] sets out clearly the steps taken by both the Commission and the applicant to advise the respondent of the hearing of the application to strike out. I am satisfied that the respondent was advised of the hearing and further, I am also satisfied that she would have been aware of the seriousness of the application before the Commission. … [53] Notwithstanding that conclusion, for the reasons outlined above, I have formed the view it would not be in the public interest for this appeal to continue and, in exercise of my discretion pursuant to s 331 of the Act, I dismiss the application to appeal filed by the respondent on 18 June 2015. [9] In an application filed on 16 November 2020, Dr Algahamdi now seeks to have her application for reinstatement reopened. Relevant principles [10] Section 484 of the Industrial Relations Act 2016 (Qld) (‘the Act’) provides: 484 Power to reopen proceedings (1) On application by a person mentioned in section 485, proceedings may be reopened by – (a) for proceedings taken before the full bench - the full bench; or (b) otherwise - the commission. [11] The Commission has a discretionary power to reopen proceedings on application by a party to those proceedings.3 The discretion is not subject to any statutory conditions. [12] In Fowler v Workers’ Compensation Regulator,4 Deputy President Merrell, while not referring specifically to s 485 of the Act, made the following observations of principles relevant to re-opening applications: The relevant authorities and principles in deciding whether to exercise discretion to grant leave to a party to reopen its case were reviewed by Applegarth J in EB v CT (No.2). In that case his Honour stated: (a) first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application; (b) secondly, in Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side; 3 Industrial Relations Act 2016 (Qld) ss 484, 485. 4 [2019] QIRC 149, 7-8 [40]-[41]. -- 4 of 13 -- 5 (c) thirdly, in Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded, but judgement has not been delivered, were said to be: (i) the further evidence is so material that the interests of justice require its admission; (ii) the further evidence, if accepted, would most probably affect the result of the case; (iii) the further evidence could not by reasonable diligence have been discovered earlier; and (iv) no prejudice would ensue to the other party by reason of the late admission of the further evidence. (d) fourthly, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants; and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs; and (e) finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants. [13] In deciding whether or not to exercise the discretion, the guiding principle is whether the interests of justice are better served by allowing or rejecting the application.5 The Application to reopen proceedings [14] In her application, Dr Algahamdi requested that: • the decision dated 19 May 2016 be set aside; • a hearing is arranged to start the process from the beginning; and • her name be supressed in the decision. [15] At the time of filing her application she attached the following submissions in support: • She only became aware of the decision in October 2020 through 'media'; • She was not provided an opportunity to participate in the proceedings as she never received any notice or details regarding the proceedings from the Commission, the respondent, or her solicitor who ceased acting for her; 5 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12, 16-17 cited with approval in Emaaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232, [19]. See also Bell v Blackwood (Workers’ Compensation Regulator) [2020] QIRC 37. -- 5 of 13 -- 6 • She left Australia within a week of the termination of her employment due to visa requirements, which the respondent was aware of and did not disclose to the Commission; • As a result of the published 'biased unfair' decision and 'unlawful defamation', she has 'lost many high-profile' jobs and 'other formal Academic degree offer'; and • Publishing her name is of no public interest and is only defamatory. [16] The parties provided written submissions in accordance with a directions order issued on 2 December 2020. Dr Algahamdi's further submissions [17] In her submissions dated 8 December 2020, Dr Algahamdi provides background as to what she submits are 'false representations' by the respondent in their submissions in the application for reinstatement. She also largely reiterates the submissions in her application with respect to the circumstances requiring her to leave Australia and that her physical attendance was impossible. [18] She submits that: • Service via email is not an acceptable method of service under the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') and she should have been contacted via telephone or post; • The respondent mislead the Commission by failing to advise it that she was not in Australia; • Upon checking her inbox and junk mail, no emails were received from either the respondent or the Commission; • The outcome of the decision would have been different had she been given the chance to participate; and • She attaches various medical practicing licences which she contests are negatively affected by the 'defamation' through publication of the decision. [19] In her reply submissions filed 16 February 2021, Dr Algahamdi also contends that the respondents did not comply with the service requirements in the Service and Execution of Process Act 1992 (Cth) and service via email was wholly ineffective. She also submits that her application for reinstatement had good prospects of success. -- 6 of 13 -- 7 Reply submissions of the respondent [20] In their submissions filed 8 February 2021, the respondent submitted that Dr Algahamdi had not established a basis for making the orders sought, and that the Commission should dismiss her application to reopen the proceedings and set aside the decision of (then) Deputy President O'Connor. [21] Leading up to the hearing of the application to dismiss proceedings held on 16 March 2016, the respondent submits that it contacted Dr Algahamdi three times via email on the same email address which she used to file the application for reinstatement. [22] The respondent also submits that: • Dr Algahamdi's legal representatives at the time notified the Commission on 8 February 2016 in their application for directions orders that she had left the country; • It is the responsibility of Dr Algahamdi to ensure that her notice of address for service was correct on her previous lawyer's notice of withdrawal of legal representation; • Rule 28(1)(g)(ii) of the Rules allow for service via email, and the respondents emailed both the email address in her lawyer's notice of withdrawal as well as that on her reinstatement application; • Even if her version of events with regards to not receiving emails is accepted, Dr Algahamdi did not take any steps following the decision to dismiss the application for reinstatement in May 2016. She has not provided any proper or reasonable explanation for the delay in applying for the proceedings to be reopened; and • Until the withdrawal of her legal representation, Dr Algahamdi had been actively participating in proceedings. After the notice of withdrawal was filed, on 3 March 2016, she took no further steps to pursue her reinstatement application until 16 November 2020. What prejudice will the respondent suffer if leave to reopen is granted? [23] The respondent submits that it will suffer prejudice if leave to reopen the proceeding is granted. Its submissions focus on the prejudice caused by the length of delay. In summary, the respondent submits that: • Dr Algahamdi's employment was terminated over five years ago. There is a real and substantial risk of prejudice to the respondent where witnesses would be -- 7 of 13 -- 8 required to give evidence and make recollections about events and conversations which occurred over five years ago; and • There are witnesses which may no longer work for the respondent which may impact on their ability to defend the reinstatement application. [24] The respondent accepts that 'the opportunity for the Applicant to litigate her claim is a matter weighted in her favour'. However, citing the decision of Commissioner Hartigan in Bell v Simon Blackwood (Workers' Compensation Regulator),6 they note her inaction in pursing the application filed on 18 June 2015 until November 2020. [25] Regarding Dr Algahamdi's contentions about reputational damage, the respondent submits that the decision in this matter does not make any findings about her clinical practice, professional performance and whether the termination was unfair. Consideration – reopening application [26] Reopening of proceedings that have been finalised by a decision of a court or tribunal should be regarded as an extraordinary event. Given the finality that parties to the decision are entitled to expect, a reopening of proceedings must be reserved for the most extraordinary of circumstances. [27] Dr Alghamdi particularises no circumstances that impress me as extraordinary. Following an intervening period of approximately four and a half years since the 2016 decision, Dr Alghamdi vaguely alludes in her submissions to becoming aware of his decision through ‘media’. In all of her submissions she fails to cite the ‘media’ by name or format. She fails to particularise how her matter came to allegedly appear in this ‘media’, on what date, and how the alleged report came to her attention. [28] Further, Dr Algahamdi does not deny knowledge of the filing of her application in June 2015 and nor does she suggest she did not consider it was still active when she left the country over five years ago. On the contrary, she submits that her application for reinstatement has good prospects and seeks to progress it. [29] Notwithstanding this, Dr Alghamdi fails entirely to explain how it is that she happened to commence the proceedings in the Commission in June 2015, and then failed to take a single step to follow up on their progress for a period in excess of four years. There is no submission (or evidence) that Dr Algahamdi even so much as emailed the registry to enquire as to the status of her matter in the intervening five years. 6 [2020] QIRC 037, 10 [52]. -- 8 of 13 -- 9 [30] Even if I accepted Dr Algahamdi’s assertions about not receiving the relevant emails in 2016 informing her of proceedings, her failure to prosecute her own application is, of itself, a compelling reason to refuse her application to reopen.7 [31] Further, as noted above, I am not convinced that Dr Alghamdi was unaware of the proceedings leading to the (then) Deputy President’s decision. Firstly, Dr Algahamdi’s assertions about email service being illegitimate are misconceived. As the respondents correctly point out, email service is allowed by rule 28 of the Rules. [32] Secondly, there is no evidence that suggests Dr Algahamdi’s email service was interrupted or malfunctioning. While there is an error in the email address recorded in material filed by her solicitor, emails dispatched from the respondents notifying her of proceedings were sent to her correct email address. Indeed, it is the very same email address which Dr Algahamdi continues to use in her conduct of this application, and which has functioned entirely efficiently as a means of communication. [33] The (then) Deputy President was satisfied as to the adequacy of the attempts to contact Dr Alghamdi in 2016 and also the means used to communicate with Dr Algahamdi. I am equally satisfied. [34] In the circumstances I reject the submission by Dr Algahamdi that she was not (or could not reasonably have been) aware of the proceedings leading to the 2016 decision. Further, even if she was not, Dr Algahamdi has made no attempt of any sort to progress the proceedings in over five years. [35] Further, I am not able to make any finding as to the manner in which Dr Algahamdi became aware of the 2016 decision, nor am I able to conclude with any confidence that she learned of it only recently. All that can be reliably established from the available evidence and submissions is that Dr Alghamdi formulated a view in or about late 2020 that the 2016 decision was responsible for multiple setbacks in her professional and academic endeavours. Dr Alghamdi has produced no evidence to establish any causal link between the 2016 decision and those setbacks. [36] After submissions had closed in this matter, and without leave to do so, Dr Alghamdi submitted by email a copy of correspondence she received from McGill University (in Canada) purportedly as evidence of the impact the 2016 decision was having on her career. The correspondence from McGill University is a wholly perfunctory communication that contains no details as to the basis of a recent decision to refuse admission to Dr Alghamdi. It is evidence of nothing, other than a failed attempt at admission to a university course. 7 Quaedvlieg and Others v Boral Resources (Qld) Pty Ltd [2005] QIC 73; 180 QGIG 1209. -- 9 of 13 -- 10 [37] I find no evidence that the interest of justice would be better served by allowing the reopening of Dr Alghamdi’s reinstatement application. On the contrary. After an unexplained delay of approximately five years, with no evidence of any prejudice flowing to Dr Alghamdi, it is my view that the interest of justice are best served by reinforcing the finality of the matter that was achieved by the respondents in 2016. [38] In the circumstances, the application to reopen the proceedings is dismissed. Suppression orders [39] In her application to reopen proceedings, Dr Algahamdi also requests that her name be supressed in the 2016 decision. In support of this she submits that, in summary: • She is aggrieved and badly affected by the decision and her career internationally is compromised; • As a result of the publication of the decision, she has lost jobs and academic degree offers; • She has lost all of her international medical licences; and • The publication of her name in a decision is of no public interest, but rather defamatory and misleads readers. [40] In her reply submissions filed 16 February 2021, Dr Algahamdi contends that the published decision at paragraphs 8 and 9 state that her performance and clinical work are the reason for her dismissal (what she contends to be fraudulent allegations). She submits that only the Australian Health Practitioner Regulation Agency ('AHPRA') can make this kind of finding through a formal process. [41] She also submits that as her name is linked to her medical licences in five countries, she has lost her career all together and AHPRA has been falsely informed about her alleged unprofessional conduct. [42] The respondent notes in their submissions dated 8 February 2021, that the Commission can make an order to suppress Dr Algahamdi's name if it considers the matter is not in the public interest, having regard to the open justice principle.8 [43] The respondent submits that Dr Algahamdi has not established a basis for making an order for the suppression of her name. The reasons she seeks a suppression order do not override the public interest in administration of justice and open proceedings, especially where the proceedings are long concluded and the decision has been in effect for a substantial period of time. The respondent also submits that her loss of future employment and reputational damage has not been property particularised. 8 Industrial Relations Act 2016 (Qld) ss 580(5), 580(7). -- 10 of 13 -- 11 [44] In support of this, the respondent cites the decision of French CJ in Hogan v Hinch,9 and the decision of Industrial Commissioner Pidgeon in Mohr-Edgar v State of Queensland (Legal Aid Queensland),10 summarising the principles which govern the exercise of the discretion as established in J v L & A Services Pty Ltd.11 [45] The respondent submits that her basis for the request is one that falls into the category of loss of privacy, embarrassment, distress or financial harm, which are outside the ambit of the grounds for limiting open justice. Consideration – suppression application [46] There is a broad discretion to make orders suppressing the name of a party or parties to proceedings in the Act.12 There is significant jurisprudence with respect to the principles that should inform my discretion to suppress details of a matter, including the name of a party. In R v O’Dempsey (No 3),13 it was held: The principle of open justice is one of the most fundamental aspects of the justice system in Australia. Exceptions to the principle are few and are strictly defined. Our judicial system is based on the notion that proceedings are conducted in open court. Justice must not just be done; it must be seen to be done. [47] Some exceptions to this principle were identified in the decision of John Fairfax Group Pty Ltd v Local Court of New South Wales,14 by President Kirby (as he then was) where he observed: Exceptions have been allowed by the common law to protect police informers; blackmail cases; and cases involving national security. The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourages its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of a particular case. [48] The guiding principles for the exercise of a discretion are comprehensively set out in J v L & A Services Pty Ltd, (recently applied by Industrial Commissioner Pidgeon in Mohr- Edgar v State of Queensland (Legal Aid Queensland)).15 They are relevantly as follows: 1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly. 9 (2011) 234 CLR 506, 530 [20]. 10 [2020] QIRC 136, 6 [9]. 11 [1995] 2 Qd R 10; (1993) 30 ALD 791; [1993] QCA 012. 12 Industrial Relations Act 2016 (Qld) s 580. 13 [2017] QSC 338, 2 [2]-[3]. 14 (1991) 26 NSWLR 131, [476]-[477]. 15 [2020] QIRC 136, 6 [9]. -- 11 of 13 -- 12 2. Publicity 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… 3. The permitted exceptions are… [based] upon the actual loss of [practical] 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… 4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible. 5. 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. 6. ... 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… (Emphasis added) [49] The matters complained of by Dr Algahamdi, and which form the basis of her application for suppression of her name, are precisely the matters identified at point 6 of the principles espoused above. They are specifically not grounds upon which a suppression order might be based. [50] Further, even if such matters might make up a legitimate basis for such an order, there is nothing in the 2016 decision that could objectively be regarded as producing the prejudicial outcomes Dr Algahamdi asserts she is affected by. [51] The 2016 decision makes two references to the circumstances of Dr Algahamdi’s employment. It firstly records that her medical registration was subject to certain restrictions as a consequence of previous reports to AHPRA. This existence of conditions on medical registration are a matter of public record, accessible by any member of the public on the AHPRA website. [52] Secondly, to the extent that the grounds of termination of employment are canvassed in the 2016 decision, they are restricted to a reference to 'concerns regarding clinical practice' and are prefaced with the phrase 'according to the applicant'. There are no details -- 12 of 13 -- 13 or other particulars that amount to findings or facts that would reasonably lead to any adverse conclusions about Dr Algahamdi. [53] There is a very real need to adhere to the principles of open justice in all but exceptional circumstances. The principles determining the circumstances under which a party might enjoy a limited exception to open justice are well defined. Dr Algahamdi fits none of the criteria necessary to invoke my discretion. Moreover, nothing about the 2016 decision objectively prejudices her, nor has she produced any evidence that demonstrates to the contrary. [54] In all of these circumstances I refuse the application for suppression of Dr Algahamdi’s name from the 2016 decision. Order [55] I make the following order: 1. The application to reopen proceedings is dismissed; 2. The application for the suppression is dismissed; and 3. Any application as to costs is to be made within 14 days of the date of this decision. -- 13 of 13 --