Brady v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 63

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brady v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 063 PARTIES: Brady, Susan (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2023/232 PROCEEDING: Application in existing proceedings DELIVERED ON: 14 March 2024 MEMBER: HEARD AT: Pidgeon IC On the papers ORDER: The application for suppression of XY’s name in the decision relating to PSA/2023/232 is granted. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – application in existing proceedings for suppression order – where the Respondent in existing proceedings makes an application for suppression – application for suppression granted EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – consideration of circumstances where the Commission may exercise discretion to modify a previously published decision LEGISLATION: Industrial Relations (Tribunals) Rules 2011 (Qld) r 97 Industrial Relations Act 2016 (Qld) s 451 -- 1 of 6 -- 2 CASES: Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 Brady v State of Queensland (Queensland Health) (No. 1) [2024] QIRC 035 Reasons for Decision Introduction [1] Following the release of my decision in Brady v State of Queensland (Queensland Health) (No. 1) on 14 February 2024,1 the Respondent filed an application on 16 February 2024 for the suppression of the personal details of a Queensland Health employee in the decision. [2] The subject of that decision was a fair treatment appeal filed by Ms Susan Brady against the internal review decision of Mr Damian Green, Acting Deputy Director-General, Corporate Services, Queensland Health dated 9 November 2023. Mr Green confirmed the earlier decision of Mr Nick Steele, Deputy Director-General, regarding an individual employee grievance raised by Ms Brady. I dismissed Ms Brady’s appeal and confirmed Mr Green’s internal review decision. [3] In its application, the Respondent requests the suppression of the personal details of XY on the basis that Ms Brady’s grievances against them had not been substantiated and date back between eight and ten years. The Respondent contends that its request to suppress XY’s identity would ‘not effect the essence of the document or decision, or impact on the principles of open justice’, namely because: XY is not a party to the appeal; the facts of the matter do not turn on XY’s involvement in the original grievance; and the public sector appeal was instead focussed on the reasonableness of Mr Green’s decision not to allow an internal review of Ms Brady’s grievances against XY which had been finalised in 2018. The Respondent also argues that naming XY in relation to unsubstantiated grievances against them would be prejudicial to them, their wellbeing, and their future career prospects. [4] While my decision in Brady v State of Queensland (Queensland Health) was briefly published on the Supreme Court Library website, my chambers requested that the decision be removed from publication pending the determination of the Respondent’s application for suppression. [5] At a mention before me on 22 February 2024, Ms Brady objected to the Respondent’s application. I subsequently issued directions seeking written submissions from the parties. 1 [2024] QIRC 035. -- 2 of 6 -- 3 [6] Those directions required Ms Brady to file submissions in support of her objection to the application for suppression by 4.00pm on 28 February 2024. On 28 February 2024, Ms Brady wrote an email to the Registry attaching a Form 27 – Request to discontinue proceeding. I asked the Registry to reply to Ms Brady confirming whether the reason for the filing of the Form 27 was because she did not wish to make submissions in response to the application for suppression or that she no longer objected to the application for suppression or for some other reason. [7] On Thursday 29 February 2024, Ms Brady wrote to the Registry stating only that she wished to discontinue. On Friday 1 March 2024, I asked the Registry to write to Ms Brady to inform her that she was unable to discontinue her public sector appeal as it had already been decided and published. Ms Brady was informed that the only application before the Commission was the suppression application filed by the Respondent. Ms Brady was asked to confirm if she wished to provide submissions regarding the suppression application. [8] On 6 March 2024, the Respondent stated that it did not intend to make further submissions in support of the application for suppression. Later that same day, I requested that the Registry write to the parties to remind Ms Brady that pursuant to the directions issued on 22 February 2024, any request for leave to make oral submissions or further written submissions would need to be made by 4.00pm on 8 March 2024. The parties were informed that should no party request leave to make further oral or written submissions, the matter would be dealt with on the papers pursuant to the directions order. [9] No further submissions were received. Legal framework [10] The onus of demonstrating that circumstances exist which justify a suppression order lies with the party seeking suppression. [11] The general powers of the Queensland Industrial Relations Commission are outlined in s 451 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) which relevantly states: 451 General powers (1) The commission has the power to do all things necessary or convenient to be done for the performance of its functions. (2) Without limiting subsection (1), the commission in proceedings may— … (c) make an order it considers appropriate. -- 3 of 6 -- 4 [12] Rule 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (‘the Rules’) provides the Commission with a power to de-identify decisions and redact information from decisions where it is considered appropriate and the modifications will not affect the essence of the document: 97 Publishing decisions etc. (1) The registrar may publish on the QIRC website – (a) a decision of the court, commission, or registrar; and (b) the notice of the making or the amended of a bargaining instrument (2) The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website. Note - For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act. (3) The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate – (a) withhold publication of a document; or (b) modify a document, before publication, in a way that does not affect the essence of the document. [13] In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd (‘ARBTU v Aurizon’),2 O’Connor VP considered an application for the names of individual workers to be de-identified. Vice President O’Connor held: [40] The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'.3 This is a central feature of the administration of justice under the common law. [41] The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure,4 it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted,5 and decisions pronounced, in 'open court';6 second, that evidence is communicated publicly to those present in the court;7 and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media. 2 [2021] QIRC 263 ('ARBTU v Aurizon'). 3 R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259]. 4 Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292. 5 Scott v Scott [1913] AC 417, 434–5 ('Scott v Scott'); Dickason v Dickason (1913) 17 CLR 50, 51; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7 ('John Fairfax') . 6 Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20. 7 A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450. -- 4 of 6 -- 5 [42] However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions. [43] The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power… [44] It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm. Consideration [14] Rule 97(3)(b) refers to the modification of a document before publication. In this case, the document had already been published and so I do not think r 97(3)(b) is of assistance. However, there is an argument that r 97(3)(b) may apply to the modification of the document prior to it being re-published. For completeness, I note that in email correspondence sent on Monday 4 December 2023 following the filing of the appeal, the parties were advised that ‘…decisions issued in Public Sector Appeals are, in most instances, published’. The most appropriate time for an application to suppress the identity of a party or a person who will be named in submissions is prior to publication. [15] In circumstances where the previous publication of the unmodified decision may render r 97(3)(b) an inappropriate way to order de-identification, I am of the view that an order may be made under the general power provided by s 451(2)(c). When considering whether to exercise the general power of the Commission to make such an order, I note O’Connor VP’s observation in ARBTU v Aurizon (see [13] above), that the discretion to anonymise may be exercised to ‘avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm’.8 [16] Matters relating to XY have been dealt with previously and they have a right to finality regarding those proceedings. I accept that there may be ‘relevant harm’ to XY if past grievances are discussed in a published decision in circumstances where they have no ‘right of reply’. XY is neither the appellant, the respondent, nor a witness in the matter. XY’s name appears in four paragraphs of the decision. I have reviewed the relevant paragraphs and I am satisfied that the references to XY relate to historical grievances where complaints made against XY were found to be unsubstantiated. The de- identification of XY does not hinder the reader’s understanding of what is being said in those paragraphs. I am satisfied that the de-identification of XY’s name does not affect the essence of the document or the decision. Further, I am satisfied that the reference to XY is incidental to the matters under consideration in the appeal and that the suppression 8 ARBTU v Aurizon (n 2) 44 (cited at [13] of this decision). -- 5 of 6 -- 6 of their name is not inconsistent with the principles of open justice. Order [17] I make the following order: 1. The application for suppression of XY’s name in the decision relating to PSA/2023/232 is granted. -- 6 of 6 --