Alderding v State of Queensland (Queensland Health) [2022] QIRC 268

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Alderding v State of Queensland (Queensland Health) [2022] QIRC 268 PARTIES: Alderding, Pauline (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2021/432 PROCEEDING: Public Service Appeal – Application in existing proceedings DELIVERED ON: 15 July 2022 MEMBER: Knight IC HEARD AT: On the papers ORDER: The application for suppression of the appellant's name in any decision published is dismissed. CATCHWORDS: PUBLIC SERVICE ⎯ DUTIES AND OFFENCES IN RELATION TO OFFICE ⎯ appeal pursuant to s 197 of the Public Service Act 2008 (Qld) against decision to take disciplinary action – application in existing proceedings to suppress publication of appellant's name in published decision – application dismissed EVIDENCE ⎯ MISCELLANEOUS MATTERS ⎯ NON-PUBLICATION OF EVIDENCE ⎯ PARTICULAR CASES ⎯ consideration of the principle of open justice – consideration of circumstances where the Commission may exercise discretion to suppress name of witness LEGISLATION: Industrial Relations (Tribunal) Rules 2011 (Qld) r 97 -- 1 of 6 -- 2 CASES: Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 J. v L. & A. Services Pty Ltd (No 2) (1995) 2 Qd R 10 Nesbit v Metro North Hospital and Health Service [2021] ICQ 5 R v Sussex Justices; Ex parte McCarthy [1924] KB 256 R v O'Dempsey (No 3) [2017] QSC 338 Russell v Russell (1976) 134 CLR 495 Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 327 Reasons for Decision [1] This is an application in existing proceedings brought by the substantive appellant, Ms Pauline Alderding, seeking an order that her name be suppressed in any decision published. [2] The substantive proceeding is an appeal against the decision of Ms Debbie Carroll, Chief Executive, Wide Bay Hospital and Health Service, imposing the disciplinary penalty of a reduction in classification level and consequential change of duties on Ms Alderding ('the Decision'). [3] For the reasons that follow, I dismiss the application. Background [4] By appeal notice filed 17 December 2021, Ms Alderding appeals the Decision pursuant to s 197 of the Public Service Act 2008 (Qld). Within her appeal notice, Ms Alderding also seeks an order that her name be suppressed in any decision published. [5] A Conference in relation to the appeal was listed for the limited purpose of discussing Ms Alderding's application for suppression. During that Conference, the respondent indicated it did not have a position on the application and did not wish to be heard. [6] I subsequently issued directions seeking written submissions from Ms Alderding on the issue of suppressing her name. -- 2 of 6 -- 3 Submissions [7] As I understand her submissions, Ms Alderding's primary concern in seeking suppression of her name is to avoid personal and professional embarrassment which she considers would result in additional penalty to her, regardless of the outcome of her appeal.1 Specifically, she submits she is concerned that, due to the nature of the allegations against her, the decision may be of public interest and be reflected in online or print media.2 [8] Ms Alderding also argues that the nature of the small communities she works in means it is highly probable the decision will be widely known within a short period of time.3 In support of this position, she submits she has already been the subject of gossip within her workplace, and the publication of her name will only increase that gossip, both within her profession and social circle.4 [9] Further, given Ms Alderding's unique surname, she argues the decision would likely be the first result in an internet search of her name.5 By way of example, she maintains a similar outcome was the unintentional consequence of another decision published by the Commission concerning a particular person linked to the decision, even though that person was not a party to the proceedings.6 Consequently, Ms Alderding contends publication of her name may give rise to other unintended or unforeseeable consequences for her.7 [10] The publication of an appellant's name also raises broader issues in these types of proceedings, she submits, as it may lead to a reluctance on the part of a potential appellant to appeal a decision for which they have reasonable grounds, due to fear of having their name published.8 [11] Finally, although Ms Alderding accepts the principle of open justice is central to the administration of justice, she argues this does not preclude the Commission exercising its discretion to anonymise a person's name where it could cause them damage.9 She maintains that in those circumstances the principle of open justice can still be served without the publication of the person's name, and anonymising her name in the present case will not undermine the aims of the principle.10 1 Ms Alderding's submissions filed 14 January 2022, [1], [8], [11]. 2 Ibid [1]. 3 Ibid [5]. 4 Ibid [6]. 5 Ibid [2]. 6 Ibid [2]-[3]. 7 Ibid [4]. 8 Ibid [7]. 9 Ibid [9]. 10 Ibid [10]-[12]. -- 3 of 6 -- 4 Consideration [12] The Industrial Relations (Tribunal) Rules 2011 (Qld) relevantly provide: 97 Publishing decisions etc. ... (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] As is apparent from the above, the discretion under r 97(3)(b) is only triggered where it is in the public interest to do so, or where the Commission considers it appropriate to do so for another reason. Such power is akin to the powers conferred on other courts to make non-publication, pseudonym or other similar orders. [14] The principles relevant to determining whether an order for suppression, or to otherwise anonymise a person's name, ought to be made are usefully set out by O'Connor VP in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon').11 Most relevantly, his Honour recognised that it is a fundamental tenet of the principle of open justice that justice not only be done, but that it also be seen to be done.12 This is achieved not only through the conduct of proceedings in open court, but also the publication of written reasons which will ordinarily require the publication of the names of those involved in the proceedings.13 [15] Similarly, in Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs),14 Merrell DP considered the principles relevant to anonymising a person's name in the context of an appeal against a disciplinary decision. His Honour relevantly considered: the principle of open justice is a fundamental aspect of our justice system and exceptions to the principle are few and strictly defined; our judicial system is based on the notion that proceedings are conducted in open court and that justice must not just be done, it must be seen to be done; a non-publication order may be made in exceptional circumstances, however, all information may not be withheld merely to save a person from loss of privacy, embarrassment or distress; 11 [2021] QIRC 263 ('Aurizon'), [40]-[46]. 12 Ibid [40]; citing R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259]. See also Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J). 13 Aurizon (n 11) [41]-[42]. 14 [2021] QIRC 327 ('Smith'). -- 4 of 6 -- 5 it is common for sensitive issues to be litigated and extremely personal or confidential information to be disclosed during litigation; the categories of cases that attract non-publication orders are well established; and pseudonym orders may be considered a minimal incursion on the principle of open justice where a person reasonably fears death, injury, unnecessary loss of liberty or some other evil. 15 [16] With respect to (e) above, his Honour observed that that the accepted categories of cases which attract such orders generally relate to matters of national security, covert law enforcement activities, where publicity might frustrate or otherwise deprive the litigation of practical utility, or where the information is incidental and not directly material to the case at hand.16 [17] Similarly, one can envisage the discretion to anonymise a decision might be exercised in favour of not identifying children or persons who are the victim of domestic violence or sexual assault. [18] In J. v L. & A Services Pty Ltd (No 2),17 Pincus JA observed the following in the context of considering whether to exercise the discretion to restrict disclosure of a party's name: There is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness.18 [19] Although I have some sympathy for Ms Alderding in that I appreciate why a person may wish to keep a disciplinary decision and the subsequent outcome of any appeal process private, I do not consider this to be sufficient reason to anonymise or otherwise suppress Ms Alderding's name in my decisions. [20] Likewise, while I accept the publication of a decision in which Ms Alderding is named may be cause for some embarrassment, I do not consider that to be of sufficient harm to warrant an order of the kind sought by her. [21] The principles set out above make it clear that there are relatively limited circumstances in which the principles of open justice should not be observed, and I am not persuaded the reasons given by Ms Alderding satisfy the requisite criteria. [22] I acknowledge Ms Alderding's submissions that publication of a person's name could result in potential appellants being reluctant to challenge a decision where they have the right to do so, however I am bound by the principles that apply to applications such as this and consider they must be respected. 15 Ibid 1, citing R v O'Dempsey (No 3) [2017] QCS 338, [2]-[10]. 16 Ibid 7-8, citing J. v L. & A. Services Pty Ltd (No 2) (1995) 2 Qd R 10 ('J. v L.'), 44-45 (Fitzgerald P and Lee J). 17 J. v L. (n 16). 18 Ibid 49. -- 5 of 6 -- 6 [23] Moreover, I consider the nature of the decision giving rise to the appeal also weighs against Ms Alderding's application. [24] That is so because she is a public service employee, and the Decision relates to disciplinary action taken on the basis of disciplinary findings made against her. It cannot be disputed that the proper discipline of public service employees is for the protection of the public.19 For that reason, I do not accept that any embarrassment experienced by Ms Alderding outweighs broader considerations of the public interest. Conclusion [25] The issue for determination in this application is whether I should exercise my discretion and supress Ms Alderding's name in respect of any decision and reasons I release in relation to her appeal against a disciplinary decision. [26] For the reasons given above, I am not persuaded this is a case where it is in the public interest, or that there is another appropriate reason, to grant an order suppressing Ms Alderding's name in any decision published. [27] I order accordingly. Order The application for suppression of the appellant's name in any decision published is dismissed. 19 See Smith (n 14) 10; Nesbit v Metro North Hospital and Health Service [2021] ICQ 5, [99]. -- 6 of 6 --