NCK v A (Qld) Pty Ltd

[2013] QCAT 111

CITATION: NCK v A (Qld) Pty Ltd & Ors [2013] QCAT 111

PARTIES:	NCK (Applicant)
v
A (QLD) Pty Ltd BB A Limited MA (Respondents)

APPLICATION NUMBER: ADL005-12

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 27 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Unless otherwise ordered, publication of any information that may enable any of the parties in this proceeding to be identified is prohibited.

2.    Any person who is not a party in this proceeding who inspects the documents filed in this proceeding must sign an undertaking not to publish any information that may tend to identify any of the parties in this proceeding. 

3.    Publication of the contents of the following documents filed in the Tribunal is prohibited:

a)    Affidavit of Dr Quentin Mungomery dated 6 February 2013 and his report dated 4 December 2012;

b)    Applications by the parties for a non publication order and supporting submissions.

CATCHWORDS:

NON-PUBLICATION – where access to the record kept for a proceeding requested – where parties sought non-publication orders over all information, documents and evidence in the proceeding – where no public interest found in prohibiting access to all information – where publication of some limited information and documents may endanger mental health of a party

Queensland Civil and Administrative Tribunal Act 2009 – sections 3(b) and 66
Anti-Discrimination Act 1991 – paragraph 6(c) of the preamble

APPEARANCES and REPRESENTATION (if any):

APPLICANT: NCK represented by Maurice Blackburn Lawyers

RESPONDENTS: A (QLD) Pty Ltd, A Limited and MA
represented by Aitken Legal

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

REASONS FOR DECISION

1. Over three days in February 2013 a hearing took place in QCAT in this proceeding about a complaint by Ms K that she had been subjected to unlawful behaviour in breach of the Anti-Discrimination Act 1991.  The hearing took place in public and neither before nor during the hearing did any of the parties request any restriction on the publication of any of the evidence presented to QCAT.  After the hearing had concluded, the member hearing the complaint reserved her decision. 

2. Subsequently a request was made by a non party to inspect QCAT’s record of the proceeding being the documents filed in the registry for the proceeding. Applications were made on behalf of Ms K and on behalf of the first, third and fourth respondents for a non-publication order about the evidence produced to the tribunal in this complaint. 

3. Hearings in proceedings at QCAT are held in public unless an enabling Act requires the hearing is closed.  There is no such provision in the Anti-Discrimination Act 1991. There are provisions in the QCAT Act that enable documents, evidence and information in a proceeding to be withheld from access by non parties.

4. An order prohibiting access to or the publication of information can only be made if the tribunal considers that the order is necessary to avoid interference with the proper administration of justice, to avoid endangering the health or safety of a person, to avoid offending public decency, to avoid publication of confidential information, to avoid publication that would be contrary to the public interest and for any other reason in the interests of justice.[1]  The parties submitted that non publication was justified under some of those grounds.

   [1] Section 66(2) of the QCAT Act

5. As a starting point, Ms K and three of the respondents sought to prohibit access to all documents, information and evidence in this case.   A case in the alternative was put by Ms K that only some of the information should be held back from access by non parties.  I was not persuaded by the submissions of the parties that access to all information about the complaint and to all evidence already given openly in public should now be prohibited to anyone who was not a party or associated with the parties.      

6. The respondents argued that publication of information in the complaint would be contrary to the interests of the respondents, particularly since one of the respondents had not taken part in the hearing and he had not had an opportunity to defend himself against the allegations made by Ms K.  This is a curious argument given that the second respondent had the same opportunity as the other respondents to take part in the proceedings but he has chosen not to do so. The argument that he has not been afforded natural justice in this proceeding is rejected. 

7. It is clear that the allegations made in the complaint of sexual harassment would be embarrassing to the persons accused of that conduct and may result in reputation loss for the parties concerned.  However the potential of an individual, whether  a party to the proceeding or not, or of a business concern being embarrassed by the content of allegations made in a complaint must be weighed up against the public interest in justice being administered in an open and public manner.  QCAT must deal with matters in a way that is accessible, fair and just.[2]   That obligation is owed to the public as well as to the parties bringing their disputes to QCAT to resolve. 

   [2] Section 3(b) of the QCAT Act

8. I was satisfied that the public interest in having the dealings of the tribunal openly conducted outweighed the private interests of the parties in having all information kept private.  Parliament has stated that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.[3]  Educating the community about how the law will respond to complaints of unlawful behaviour that tends to impugn the dignity and worth of persons can take the form of publication on the tribunal’s website of reports of how the law has been applied in a given case. If a total prohibition of publication of any information in this case were to be made, the reasons for decision of the tribunal could never be published and neither could the media report on the case.

   [3] Paragraph 6(c) of the preamble to the Anti-Discrimination Act 1991

9. It would be quite contrary to the objects of the Anti-Discrimination Act 1991 to decide complaints about conduct that is alleged to have breached the anti-discrimination laws beyond the scope of public scrutiny unless there is a persuasive countervailing public interest to keep the matters private. The arguments of the parties based on the provisions in section 66(2) of the QCAT Act were not persuasive and I could not find any countervailing public interest to support non publication of all information and evidence in this case.

10. However, despite those findings in support of the general principle of openness, there were compelling arguments put forward in Ms K’s alternative argument that some aspects of the case should be kept out of the public domain.  I refer to information that may enable Ms K to be identified.  I accept the argument put on behalf of Ms K that she has been diagnosed with a severe depressive illness, anxiety and a post-traumatic stress disorder.  Her mental health is fragile and I accept that publication of her identity is likely to place further strain on her health.  There was evidence provided to the tribunal that she was suicidal only a short time ago. 

11. It is fair and reasonable that her identity is not published to avoid endangering her health.  It would be a just result to prohibit publication of information likely to identify any of the parties in case publication of the names of the respondents could lead to a fear by Ms K, given her mental state, that her own identity would as a consequence be revealed.

12. The evidence about Ms K’s mental state was discussed in a report by Dr Mungomery.  That report also contained detailed information about Ms K’s mental illness and other medical conditions. It contains sensitive and very private information beyond the scope of the complaint made in this case.  The report of Dr Mungomery had been filed in the tribunal and would as a consequence be accessible to persons inspecting the registry file. 

13. I accept that disclosure to other people unrelated to her case of that sensitive medical information, even if the identity of Ms K was concealed, would tend to cause undue stress to Ms K and may as a consequence endanger her mental health.  For that reason, I have ordered that publication of the affidavit of Dr Mungomery and of his report is prohibited.     

14. It was evident from the submissions made by the parties that they were under the impression that documents produced to the tribunal under notices to produce were accessible by non parties. That is not the case. The various medical records produced in that manner to the tribunal, even after they were tendered into evidence and made exhibits, are not part of the record of proceeding or accessible in terms of section 230 of the QCAT Act. These documents are not accessible unless or until they have been filed in the registry.