Codianni v Water Resources Commission, Department of Primary Industries [1995] QIRC 453 (1995) 150 QGIG 673

672 QUEENSLAND GOVERNM ENT IND US TRIAL GAZETTE 16 October, 1995 6 October, 1995) Q UEENSLAND GOVERNMENT INDUSTRIAL GAZ ETTE 673 ####################################################### QUEENS LA ND I DUSTRJA I RELATIONS COMMISSION Indus trial Relat ions Act 1990 ~ 5, 32. 42, 90( I )(a). 92(2)(3). 94(c)(d)(e) application for order for non-publica11on J. Codiann i A D Water Resources Commission, Dcparunent of Primary Industries (No. B1639 of 1995) COM'-'11 SIONE R DEMP SE Y 26 September 1995 Appl icat io n fo r Non-Publication Order of Transcript. Withdr-,ma l of Pre, ious Reinstatement Applicauon - Comments b) Comm1ss1oner Case la" - Leg111mate lnterc~t of Persons o ther than Parties - Direction That Ce rtain Parts of Transcript be Not Published. DEC ISION I ha,c before me an application to make an Order concerning non-publication of portion of th e transcript in matter 8 273/94. I ha,e heard submissions from both parties m relallon to this particular applicauon " hich is opposed by 11.l r La"son. I ha,e heard such submissions in camera as requested by Mr Plunket. The comments in question made by me and which are the subject of this application ,,e re made in a public hcanng and under the circumstances. it "ould seem doubtful if I could C'<punge them, C'vCn 1f I ,,ished to follow such a cou rse (see the remarks of Philp J. in Flohr v McMahon ex parte McMahon ( 1956) St. R. Qd. 253 at 265). In determining this application, I have duly considered the submissions made by the parties and I have in panicular referred to the Court of Appeal Decision m the matter of J. , . L & A Services Pry. Ltd (No. 2) ( 1995) 2 Qd . R. I 0. This application arises out of an application to wi thdra\\ certain proceedings \\h1ch ha,e been heard over numerous days. Rule 325 of the Industrial Court Rules /990 relevant ly prov id es that th e Co mm ission may al any time in th e course of any hearing before it, grant leave to an applicant to wi thdraw a matter or process in such terms and conditions as the Commission sees fit Secti on 99 of the Industrial Relations Act /990 contai ns speci fi c provisions in relation to the hearing of matters in private and to the 16549_1 DOC -- 1 of 2 -- 674 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (6 October, 1995 publication of reports of proceedings Ruic 329 also makes similar pro, is1on in relauon to prohibition of publicauon. As a generalisation, it may be said that Courts and tribunals, such as this Commission. are very slow to restrict public access to the details of what is going on in Courts and tribunals. It would also seem that in order for a Court to sit in camera there mu st be a stawtory provision enabling it 10 do so or that the case falls within a strictly defined except ion (R. v. Ta,t (1979) 46 FLR 386). It would also seem that th e application of the principle of open justice has two aspects, naroel). the requirement to hold proceedings in open Court and secondly to pennit publication of the proceedings In the matter of R v Tait, Brennan, Deane and Gallop JJ . comment as follo"'s:- ·'A Judge cannot modify the common law rule which requires a Court to administer Justice in public. Apart from the strictly defined exceptions ' parliamentary sanction is required for tl:!e exclusjon of the public from proceedjngs '. (per Stephen J. in Russell v Russell (supra) at page 533) In Seo// v. Sco11 the reason for the common law nile and for denying a judicial discretion to modify it was eloquently expressed by Lord Shaw of Dunfermline who recalled Bcntharn 's ...,Titings ' Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the Judge himself ,,h1le trying under tnal ' ' The security of secunues is publicity.· " (underlining is mine) In hindsight, 11 may well be that I should not have heard the application for non-publication in camera, but could have quite appropriately prohibited publication of the proceedings. I do note that this course was suggested at one stage by Mr Plunke t. Whilst I do not necessarily accept as correct all of the subm1ss1ons made by Mr Plunket, I ha,e formed the view that further debate about this issue will not be helpful to the parties, bearing in mind the settlement which has been achieved. The comments in qu estion were directed at th e parties directly involved in this matter and have no doubt achieved their purpose. A reinstatement applicauon, unlike many apphcauons to this Commission, directly involves two parties and apart from the value of any decision as a precedent. would be of little, if any legitimate interest to other persons This 1s particularly so in the case of the comments in question. In this case It is submitted that the remarks m question may reflect gravely on the professional and pe rsonal reputations of senior public servants. however. ii seems that is not necessarily a valid reason for granung the application before me (Ra}bos Australia Pry. Ltd. and another v. Jones [1985) 2 NSWLR 47 at 60 per Kirby P.). In this case the pubhc has rightly had access at the hearing of the original applicallon and 11 1s only the hearing of the applicauon for non-publication that has been heard in camera. I have decided that m) response to this application for non-publication should be made in open Court. I earlier mentioned that a distincuon may be drawn bet\\een heanng a matter in pnvate and ordering non-publicauon of proceedings heard in open Court. The Industrial Relations Act 1990 provides for such differing outcomes in appropriate circumstances. The authorities also indicate that I am bound by the relevant statutol') provisions. In this particular case section 99(4) of the act provides that the Comm1ss1on ma) direct that a report of proceedings or any part thereof be not published subject 10 the fonnation of an opmion as set out in subsection (5) that:- "(a) disclosure of the matter 10 which direction would relate would not be in the public interest: or (b) persons other than parties to the cause do not have a sufficient legitimate interest in being mforrned of the matter to which the direction would relate.". Having considered the submissions and the circumstances of this matter, I have formed the opinion that persons other than the parties to this cause do not have a sufficient legitimate interest in being mforrned of the statements in relation to which the direction is sought. Having formed the lastrnentioned opinion, and bearing in mind the specific provisions of the Industrial Relations Act 1990 I hereby direct that a report of the proceedings in matter 8273/94 as recorded in the last three paragraphs on page 541 of the transcript and the first five paragraphs of page 542 oftbe transcript be NOT published This direction will not make any reference to a private recommendation. I further direct that a report of that part of the proceedings on 19 cptember 1995 during ~hich the applicauon for non-publication was made be NOT published in so far as it in any way, directly or indirectly, identifies, refers to or quotes that part of the transcript on pages 45 I and 452 referred to above It would seem to me to be inappropriate to make any direction in respect of what I have said today. The application by the respondent in this matter for costs is refused The Commission orders accordingly. H. DEMPSEY, Commissioner. Appearances:- Mr M. Plunkett (instructed by Crown Solicitor) with him Mr D. Cavanagh, Mr M. Smith and Ms N. Parker for the Department of Primary lndustnes. Mr J. Lawson for Mr J. Codianni Opera11vc date: NIA Decision - Non-Publication Released: 27 September 1995 ##fflllllllll###llllffl####ll##ll##llll#U#/1###11#######11######## 16549_ 1 DOC I 6 October, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 675 -- 2 of 2 --