Legal Services Commissioner v XFZ (No 2) - [2024] QCAT 354

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v XFZ (No 2) [2024] QCAT 354

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

XFZ

(respondent)

APPLICATION NO/S:

OCRXXX-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 November 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

ORDERS:

1.     The reasons for the dismissing the respondent’s application for miscellaneous matters, filed 7 August 2023 will be published in a form which –

(a)     refers to the respondent only by a pseudonym;

(b)     identifies the matter number in a way which does not permit identification of the respondent; and

(c)     does not identify the person for whom the respondent acted in the Administrative Appeals Tribunal, and referred to in the reasons published to the parties pursuant to the Tribunal’s order of 24 May 2024 (“draft reasons”) by name.

2.     These reasons are to be published in a way that does not identify the respondent, consistent with the reasons for dismissal of the respondent’s primary application.

3.     There is no order for costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where the Legal Services Commissioner brought an application for disciplinary proceedings against respondent practitioner – where the respondent made an interlocutory application to strike out or dismiss the disciplinary application and that application in itself was dismissed – where respondent applied for non-publication order of the interlocutory reasons – where the grounds for non-publication concern the respondent’s mental health – whether a non-publication order is appropriate

Legal Profession Act2007 (Qld) s 656D

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The respondent brought an application for an order that the Discipline Application which founds these proceedings be struck out or dismissed. On 24 May 2024 this Tribunal made orders, including an order that the respondent’s application itself be dismissed. The orders then made included orders for submissions relating to the publication of the Tribunal’s reasons for dismissing the respondent’s application, and notice of any application for costs.
There has been no application for costs.
There is no dispute of substance with regard to the manner in which the draft reasons should be published. However, the making of any order which restricts publication of proceedings in the Tribunal should be regarded as exceptional, and accordingly it is appropriate to provide brief reasons for the making of such an order.
The respondent has sought an order that a pseudonym be used to protect her identity in the current proceeding.[1] She identified reasons relating to her health as the basis for her application.[2]
[1]See the Application which appears not to have been filed, but which accompanied submissions made pursuant to the order of 24 May 2024.
[2]Ibid.
The respondent provided submissions dated 15 July 2024 in support of her application. They included a submission that a pseudonym order should be made because it is necessary to protect her psychological wellbeing.
The applicant provided submissions on this question, dated 29 July 2024. Those submissions drew attention to the order of Mellifont J of 7 August 2023, which included an order that publication of orders made and reasons given by the Tribunal be prohibited, to the extent they could identify the name of the respondent, with certain exceptions. The applicant submitted that no further order was necessary in view of her Honour’s order.
The applicant’s submissions also identified two potential sources of power for the making of an order restricting publication of the Tribunal’s reasons and orders. They are s 656D of the Legal Profession Act 2007 (Qld) (“LP Act”); and s 66 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) (“QCAT Act”). It was submitted that the provisions of s 656D of the LP Act prevail over s 66 of the QCAT Act, to the extent of any inconsistency, by reference to s 6 and s 7(2) of the QCAT Act.
The applicant submitted, in the alternative, that if the order of Mellifont J of 7 August 2024 was not sufficient, then the draft reasons should be appropriately anonymised to avoid the identification of the respondent. The submission was based on the medical evidence which is at present before the Tribunal and in particular a letter from Dr Laurel Morris, a clinical psychologist, dated 28 July 2023. The applicant accepted this evidence, but only for the purpose of the present application.
Section 656D of the LP Act is in the following terms:-
656D       Prohibited publication about hearing of a discipline application
(1)The tribunal, either before, during or immediately after a hearing, may make an order prohibiting the publication of information stated in the order that relates to the discipline application, the hearing or an order of the tribunal.
(2)A person must not contravene an order under subsection (1).
Maximum penalty—200 penalty units.
(3)A person must not publish or allow someone else to publish—
(a)a question disallowed by the tribunal at the hearing; or
(b)an answer given to a question disallowed by the tribunal at the hearing.
Maximum penalty—200 penalty units.
(4)       Also, the tribunal may make an order prohibiting—
(a)the issue of the entire or part of a copy of the record made under the Recording of Evidence Act 1962; or
(b)the publication of the entire or part of a copy of the record made under that Act.
(5)A person must not contravene an order under subsection (4).
Maximum penalty—200 penalty units.
(6)       In this section—
publish includes publish on radio, television or the internet.
record includes an audio recording.
Section 66 of the QCAT Act includes the following:
66 Non-publication orders
(1)The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
(a)the contents of a document or other thing produced to the tribunal;
(b)       evidence given before the tribunal;
(c)information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
(2)The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
(a)to avoid interfering with the proper administration of justice; or
(b)to avoid endangering the physical or mental health or safety of a person; or
(c)       to avoid offending public decency or morality; or
(d)to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e)       for any other reason in the interests of justice.
Section 656D confers an unfettered discretion on the Tribunal to make an order prohibiting the publication of information relating to the Discipline Application, the hearing or an order of the Tribunal. There is no reason to doubt that the Tribunal’s reasons for judgment come within the scope of s 656D.
Under s 66(1), the Tribunal may make an order prohibiting the publication of the matters stated in the sub-section, including information that may enable a party to be identified. The power may be exercised in the circumstances identified in s 66(2). Those circumstances include that the order is necessary to avoid endangering the physical or mental health of any person, or for any other reason in the interests of justice.
Absent the use of a pseudonym, the reasons of the Tribunal may be regarded as information that might enable the person who has appeared before it to be identified.
There has been no suggestion of any inconsistency between s 656D of the LP Act, and s 66 of the QCAT Act, at least for the purposes of the present application. It is therefore not necessary for the Tribunal to explore the interaction between these two sections. It is sufficient to note that on the ground relied upon by the respondent, identified earlier, an order might be made under either provision.
For the purposes of the present application, the evidence of Dr Morris establishes that the respondent is suffering from an adjustment disorder with mixed anxiety and depressed mood. Testing indicated a severe level of depression, moderate anxiety and severe stress. Without the protection of a pseudonym, the respondent would be placed under an extreme risk to her mental health, especially given her recent suicidal ideation, if her reputation were affected by an adverse finding.
The reasons for dismissing the respondent’s application identify the allegations made against her in this Tribunal. In substance, those reasons accept that the respondent has a case to answer in respect of the allegations made in the Discipline Application. The allegations were shown not to be lacking in substance.
The letter from Dr Morris does not specifically address the present situation. Nevertheless, the concerns which she has expressed are sufficient to call for the exercise of caution in relation to the publication of the reasons.
Notwithstanding the language of each of these statutory provisions, the exercise of the Tribunal’s power will inevitably be affected by a consideration of the principle of open justice. The considerations which underpin the principle of open justice do not make it necessary to identify the respondent in relation to the reasons for dismissing her application. Those considerations will be adequately addressed by the publication of reasons in a form which does not identify the respondent. The use of a pseudonym will still permit public scrutiny of the Tribunal’s reasons in determining that the respondent’s application should be dismissed.
The respondent’s submissions point out that the draft reasons identify a person whom she describes as “a vulnerable NDIS participant” for whom she submits reference to his matter could be traumatic. Why that might be so was not explained in the respondent’s submissions, and is not immediately obvious. Nevertheless, reference to the NDIS participant is unnecessary. Moreover, it might enable the respondent to be identified, by an examination of the record relating to the proceedings involving the NDIS participant. Accordingly, the participant will not be referred to by name in the reasons to be published for dismissing the respondent’s application.
While not mentioned in her primary reasons for seeking a pseudonym order, the respondent’s submissions refer to a number of other matters, principally being allegations about the conduct of the applicant. These are irrelevant for the question under consideration.
The applicant may well be correct that the order of the President of 7 August 2023 provides sufficient protection to the respondent. Nevertheless, to avoid uncertainty, it is appropriate to make specific orders in relation to the reasons for dismissing the respondent’s application, as well as in relation to the publication of these reasons.
There being no application for costs, there will be no order for costs.
The following orders are made:
1. The reasons for the dismissing the respondent’s application for miscellaneous matters, filed 7 August 2023 will be published in a form which:
(a)    refers to the respondent only by a pseudonym;
(b)identifies the matter number in a way which does not permit identification of the respondent;
(c)does not identify the person for whom the respondent acted in the Administrative Appeals Tribunal, and referred to in the reasons published to the parties pursuant to the Tribunal’s order of 24 May 2024 (“draft reasons”) by name.
3.     These reasons are to be published in a way that does not identify the respondent, consistent with the reasons for dismissal of the respondent’s primary application.
4.     There is no order for costs.