Legal Services Commissioner v Sewell

Case [2019] QCAT 181

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Legal Services Commissioner v Sewell [2019] QCAT 181

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant/appellant)
v

DONNA MAREE SEWELL

(respondent)

APPLICATION NO/S:

OCR181-15

ORIGINATING APPLICATION NO/S:

OCR181-15

MATTER TYPE:

Occupational Regulation Matters - Application

DELIVERED ON:

19 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody
Assisted by:
Dr John de Groot, Legal Panel Member

Dr Margaret Steinberg AM, Lay Panel Member

ORDERS:

1.    Until further or other order, the tribunal prohibits the publication of all information which enables the identification of XY.

2.     The decision of 31 October 2017 in OCR181-15 be redacted to remove the information subject to the non-publication order in direction 1 above.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PRACTICE AND PROCEDURE – NON-PUBLICATION ORDER – DECISIONS AND ORDERS – Queensland Civil and Administrative Act 2009, s 66 – where application for disciplinary proceedings dismissed – where decision published on the Queensland Supreme Court Library website – where the applicant applies to deidentify a named person in the published decision 18 months following the publishing of the decision – where the applicant argues the decision contains confidential medical information capable of causing reputational damage of a named person – where principle of open justice applies - whether special circumstances justify making a deidentification order.

Queensland Civil and Administrative Act 2009, ss 32, 66

Cutbush v Team Maree Property Services (No 3) [2010] QCATA 89

Legal Services Commissioner v Sewell [2017] QCAT 387

NCK v A (Qld) Pty Ltd & Ors [2013] QCAT 111 (Anti-Discrimination)

REPRESENTATION:

Applicant:

Acting Legal Services Commissioner Robert Brittan

Respondent:

Mr Ben Cohen, Partner, Bartley Cohen

APPEARANCES:

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

REASONS FOR DECISION

  1. The Legal Services Commissioner has filed a miscellaneous matters application seeking reissuing of the reasons in Legal Services Commissioner v Sewell [2017] QCAT 387 deidentifying a named person under s 66(1)(c) QCAT Act.

  2. The discretion to make orders prohibiting publication of information that may enable a person affected by a proceeding is conferred by s 66(2)(c) QCAT Act.

  3. A non-publication order may relevantly be made under s 66(2)(b) and (e) QCAT Act by the tribunal as constituted for the proceeding on the application of a party.

  4. The applicant has the onus of demonstrating that recalling and cancelling it will not offend the open justice principle or impair community confidence in the integrity of tribunal procedures.

  5. In Cutbush v Team Maree Property Services (No 3)[1] the appeal tribunal held that where the identity of affected third parties is concerned publication tending to embarrass or cause “unfortunate financial effects” is generally not sufficient reason to redact names after they have already been published.

  6. However, evidence of a “fragile” mental state was sufficient to justify a non-publication order in NCK v A (Qld) Pty Ltd & Ors.[2]

    [2][2013] QCAT 111 (Anti-Discrimination).

  7. As we understand the correct test non-publication of health related information or anonymisation to protect identity is permissible where the tribunal considers it necessary to do so for one of the reasons mentioned in s 66(2) QCAT Act including where full disclosure would be contrary to the public interest to or non-disclosure is in the interests of justice.

  8. The information in issue was published 18 months ago.  The application was not made until after the named person recently drew the applicant’s attention to its detrimental effect on him.

  9. Despite the long delay and prior publication anonymisation is in the interests of justice and necessary to protect or at least minimize the damage to the professional reputation and future employability of the person affected.  We are reasonably satisfied on the filed material that identifying him by name and referring to his past mental disorder is contrary to the public interest because it would deter witnesses in a similar position from coming forward and hinder the Commissioner from taking appropriate disciplinary action in analogous cases.

  10. Open justice is an important principle but not the paramount consideration here. It can be departed from without harm to the legal process or the community’s faith and trust in the court system.

  11. The application is granted along with any procedural relief needed to regularize it.

  12. Orders –

    1.    Until further or other order, the tribunal prohibits the publication of all information which enables the identification of XY.

    2.    The decision of 31 October 2017 in OCR181-15 be redacted to remove the information subject to the non-publication order in direction 1 above.


Details
AGLC
Legal Services Commissioner v Sewell [2019] QCAT 181
Case
[2019] QCAT 181
Decision Date

CaseChat Overview and Summary

Legal Services Commissioner sought to prevent the publication of a disciplinary decision against a lawyer, alleging it contained confidential medical information that could cause reputational damage. The Queensland Civil and Administrative Tribunal (QCAT) was asked to consider whether special circumstances justified a non-publication order, given the principle of open justice.

The primary issue before the tribunal was whether special circumstances existed to justify a deidentification order, balancing the principle of open justice with the need to protect confidential medical information. The Commissioner argued that the publication of the decision on the Queensland Supreme Court Library website could cause significant reputational harm to the named person. The tribunal needed to weigh the public interest in open justice against the potential harm to the individual's privacy and reputation.

The tribunal found that the principle of open justice is fundamental, but it is not absolute. Special circumstances can warrant a departure from this principle. Here, the tribunal considered the nature of the information, the potential harm to the individual, and the public interest in maintaining the confidentiality of medical information. The tribunal concluded that the potential reputational damage to the named person, given the confidential nature of the medical information, constituted special circumstances warranting a non-publication order.

Accordingly, the tribunal made an order prohibiting the publication of information that identifies the named person. The tribunal directed that the published decision be redacted to remove the identifying information. This order was made to protect the individual's privacy and prevent potential reputational harm, while still upholding the broader principle of open justice.

Orders

Orders of the court

1. Until further or other order, the tribunal prohibits the publication of all information which enables the identification of XY.

2. The decision of 31 October 2017 in OCR181-15 be redacted to remove the information subject to the non-publication order in direction 1 above.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.