Dhanapathy v State of Queensland (Queensland Health)

Case [2023] QIRC 17

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dhanapathy v State of Queensland (Queensland Health) [2023] QIRC 017

PARTIES:

Dhanapathy, Ashwini
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
CASE NO.: PSA/2022/256

PROCEEDING:

Application in existing proceeding

DELIVERED ON:

 20 January 2023

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

ORDER: 

 The application is dismissed.
CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Application in existing proceedings for suppression order – where Appellant seeks de-identification of personal information – where Respondent opposes the application – application for suppression order not granted

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – principle of open justice – consideration of circumstances where the Commission may exercise discretion to suppress name of a party or evidence
LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 (Qld) r 97

Industrial Relations Act 2016 (Qld) ss 451, 580

Public Service Act 2008 (Qld) s 194
CASES:

Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

Barnett v State of Queensland(Queensland Health) [2022] QIRC 424

Dhanapathy v State of Queensland (Queensland Health) [2022] QIRC 356

J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10

R v O'Dempsey (No 3) [2017] QSC 338

Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286

Reasons for Decision

Introduction

  1. On 11 February 2022, a public service appeal was filed by Dr Ashwini Dhanapathy (the Appellant) pursuant to s 194 of the Public Service Act 2008 (Qld) against a disciplinary finding made by the State of Queensland (Queensland Health) (the Respondent) following a show cause process relating to her employment.

  2. Dr Dhanapathy's appeal was decided on 13 September 2022 with the decision published on the Supreme Court Library website shortly thereafter.[1]

  3. On 20 November 2022, the Appellant sent an email to the Industrial Registry requesting that her name and identity be 'retracted' from the decision.

  4. On 21 November 2022, the Registry replied to Appellant's correspondence and indicated that a Form 4 - Application in existing proceedings needed to be filed for the Appellant to apply for a suppression order.

  5. On 24 November 2022, the Appellant filed an application in existing proceedings seeking that her name and any identifying information in the decision of the appeal be suppressed and de-identified from publication.

  6. In Schedule 1 to her Form 4, the Appellant outlines the basis upon which she files her application. In summary, the Appellant's reasons for the application are:

    ·She has only recently been advised by some senior colleagues in the workplace that the publication of her name in the media may make it difficult for her to acquire a more senior medical officer job in the near future.

    ·She is 'absolutely, inexplicably devastated and the mental/emotional stress is unbearable because more than 15 years of sheer hard work and sacrifice has been instantly negated by a singular, quite specific/narrow parking allegation made by a…

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AGLC
Dhanapathy v State of Queensland (Queensland Health) [2023] QIRC 17
Case
[2023] QIRC 17
Decision Date

CaseChat Overview and Summary

In the matter of Dhanapathy v State of Queensland (Queensland Health), the appellant sought a suppression order to de-identify personal information in the published decision. The respondent opposed the application. The case was heard in the Queensland Industrial Relations Commission. The central legal issue before the Commission was whether the appellant's request for de-identification of personal information in the published decision should be granted, considering the principle of open justice and the statutory exceptions that allow for the discretion to anonymise a decision.

The Commission considered the principle of open justice, which mandates that justice should be done and seen to be done. This principle gives rise to several rules, including that judicial proceedings should be conducted in open court, evidence should be communicated publicly, and fair and accurate reports of judicial proceedings should not be discouraged. However, the Commission recognised that the rules of open justice are not absolute and that there are statutory exceptions allowing for the discretion to anonymise a decision. The Commission noted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are victims of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. Additionally, 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.

The Commission ultimately decided not to grant the suppression order, finding that there was no good reason to de-identify the personal information in the published decision. The Commission noted that the principle of open justice and the statutory exceptions did not apply in this case, and therefore, the appellant's request for de-identification of personal information was denied.

The application is dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 97 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 there is good reason to do so: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. In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('ARBTU v Aurizon'),[4] 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'.[5] 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,[6] 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,[7] and decisions pronounced, in 'open court';[8] second, that evidence is communicated publicly to those present in the court;[9] and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.[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.[4] [2021] QIRC 263 ('ARBTU v Aurizon').[5] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259]. [6] Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292. [7] 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') .[8] Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20.[9] A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450.

Ratio Decidendi

Legal Principle Established

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