Neil v Lee (No. 2)

Case [2024] QIRC 149

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Neil v Lee (No. 2) [2024] QIRC 149

PARTIES:  

Neil, Debra
(Applicant)

v

Lee, John
(Respondent)

CASE NO:

B/2024/48

PROCEEDING:

General Application

DELIVERED ON:

 3 June 2024
HEARING DATE: 

3 June 2024

MEMBER:

Merrell DP

PLACE OF HEARING: 

 Brisbane

ORDER:

The order contained in paragraph [31] of these reasons for decision.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –  JUDGEMENTS AND ORDERS – GENERAL APPLICATION TO RE-OPEN PROCEEDINGS – judgment about complaint made under the     Anti-Discrimination Act 1991 delivered and published on the Supreme Court Library website – subsequent application by the Applicant, who was the Complainant in the substantive matter, to reopen the proceedings for an order to be made that the Applicant's name be de-identified and that the publication of the Applicant's name be prohibited to the extent that it could identify or lead to the identification of the Applicant's identity as the Complainant in the judgment – principles about re-opening proceedings pursuant to s 484 of the Industrial Relations Act 2016 – whether proceedings should be reopened – open justice principles – principles about de-identifying a party's name and prohibiting publication of a party's name – application dismissed.

LEGISLATION:

Anti-Discrimination Act 1991, s 118, s 120, s 166, s 174B, s 191

Human Rights Act 2019, s 31

Industrial Relations Act 2016, s 447, s 484, s 485, s 451

Industrial Relations (Tribunals) Rules 2011, r 78

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. 2) [2024] QIRC 063

Fowler v Workers' Compensation Regulator [2019] QIRC 149

Neil v Lee [2024] QIRC 093

Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor [2024] QIRC 020

APPEARANCES:

Ms C. Weldon and Ms B. Smeed of Legal Aid Queensland.

The Respondent appeared on his own behalf.

Delivered ex tempore, revised from transcript

Reasons for Decision

Introduction

  1. On 24 April 2024, I delivered my decision in Neil v Lee ('the decision').[1] The decision was published on the Supreme Court Library website on 29 April 2024. The decision concerned a complaint made by the present applicant ('the Applicant') to the Queensland Human Rights Commission ('the Complaint') alleging that the Respondent's alleged conduct contravened the Anti-Discrimination Act 1991 ('the AD Act'). The Complaint was referred by the Queensland Human Rights Commission to the Queensland Industrial Relations Commission on 21 October 2022 pursuant to s 166(1)(a) of the AD Act.

The present application

  1. By general application filed on 30 May 2024, the Applicant made an application to the Commission that:

    ·pursuant to s 484 of the Industrial Relations Act 2016 ('the IR Act') and, or in the alternative, r 78 of the Industrial Relations (Tribunals) Rules 2011 for leave to reopen the proceedings that led…

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Neil v Lee (No. 2) [2024] QIRC 149
Case
[2024] QIRC 149
Decision Date

CaseChat Overview and Summary

Neil v Lee (No. 2) involves an application by the Applicant, who was the Complainant in the original matter, to reopen proceedings for an order to de-identify her name and prohibit its publication. The application was made under the Industrial Relations Act 2016 (IR Act) and the Anti-Discrimination Act 1991 (AD Act). The original judgment, which included the Applicant's name, had been published on the Supreme Court Library website. The Applicant sought to have her name removed from the published judgment and to prohibit further publication of her name as the Complainant. The court was required to decide whether the proceedings should be reopened, and if so, whether the Applicant's name should be de-identified and publication prohibited.

The court considered the principles governing the reopening of proceedings under s 484 of the IR Act, as well as the principles about de-identifying a party's name and prohibiting publication of a party's name. The court noted that the open justice principle, which requires that justice should be seen to be done, is a fundamental aspect of the administration of justice. However, this principle is not absolute and there are statutory exceptions that permit the withholding of names. The court also considered the power of the Commission to modify previously published decisions and make anonymity and non-publication orders under s 451(2)(c) of the IR Act and s 191 of the AD Act. The court concluded that the application to withhold the names of the two workers could be explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice.

The court dismissed the application to reopen the proceedings and make the orders sought. The court found that the principles of open justice, while important, were not absolute and there were circumstances in which the names of parties could be withheld. However, in this case, the court was not satisfied that the Applicant had demonstrated that the publication of her name would cause her damage to such an extent and of such a kind as requiring some relief, in the interests of justice. The court also noted that the original judgment had already been published and that it would not be appropriate to modify it retrospectively.

Orders:
The application to reopen the proceedings and make the orders sought is dismissed.

Orders

Orders of the court

The order contained in paragraph [31] of these reasons for decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The combined effect of s 484(1) and s 485(b) of the IR Act provides that on application by a party to the proceedings, proceedings may be reopened by the Commission. In support of her application that the proceedings be reopened, the Applicant refers to my decision in Fowler v Workers' Compensation Regulator.[2] While that decision did not involve an application made under s 484 of the IR Act and, at the time that I made that decision, I had not released a judgment in that matter, there is no reason to think that the relevant principles referred to in that case may not assist in guiding the exercise of the discretion under s 484(1) of the IR Act.[2] [2019] QIRC 149.The power to modify a decision and make anonymity and non-publication orders The Applicant contends that the Commission has power to modify a previously published decision and, in that regard, refers to the decision in Brady v State of Queensland (Queensland Health) (No. 2),[3] where at [15] it was held that s 451(2)(c) of the IR Act provides such a power.[3] [2024] QIRC 063 ('Brady'). Section 451(1) of the IR Act provides that the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. Section 451(2)(c) provides that without limiting subsection (1), the Commission, in proceedings, may make an order it considers appropriate. The Applicant also relies on s 191 of the AD Act as a source of power for the orders sought. That section relevantly provides that if the Commission is of the reasonable opinion that the preservation of anonymity of a person, who has been involved in a proceeding under the AD Act is necessary to '… protect the work security, privacy or any human right of the person, the tribunal may make an order prohibiting the disclosure of the person's identity.' However, that power is contained in ch 7, div 1 of the AD Act which deals with the pre-hearing process of a complaint referred to this Commission from the Queensland Human Rights Commission. Those are not the circumstances relevant to the Applicant's present application. In support of her submissions, the Applicant referred to the decision of Vice President O'Connor in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon'),[4] where his Honour stated:[4] [2021] QIRC 263 ('Aurizon').[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’. 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, 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, and decisions pronounced, in ‘open court’; second, that evidence is communicated publicly to those present in the court; 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.[45]In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice[46]As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L & A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'.;[5][5] Citations omitted.

Ratio Decidendi

Legal Principle Established

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