PC v State of Queensland

Industrial Relations (Tribunals) Rules 2011 (Qld), r 78, r 97

Algahamdi v Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223

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

Fowler v Workers' Compensation Regulator [2019] QIRC 149

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

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

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (No 4) [2015] WASCA 253

Reid v Brett [2005] VSC 18

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

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor [2024] QIRC 20

Waite v State of Queensland (Department of Environment and Science) [2024] QIRC 144

[1] On 14 October 2025, I delivered a decision in a public service appeal under the Public Sector Act 2022 (Qld) ('PS Act') relating to what was purportedly a fair treatment appeal. That decision is the subject of this application to re-open and de-identify/supress from publication entirely. I will refer to that decision in these reasons simply as the 'decision.'

[2] The decision was released to the parties and was due to be published on the Supreme Court Library website when, on 15 October 2025, the Appellant filed an application seeking to re-open that matter and have the decision de-identified as well as orders preventing search or publication of the file and that the decision not be published.

[3] Since the application is framed more as submissions, I paraphrase the main orders that the Appellant is seeking as follows:

1. pursuant to r 78 of the Industrial Relations (Tribunals) Rules ('the Rules') and s 484 of the Industrial Relations Act 2016 ('IR Act') for leave to re-open the proceedings; and

1. pursuant to r 97(3)(a) of the Rules and s 541 of the IR Act, orders for non-publication of the decision or de-identifying the Appellant in the decision and suppressing from search or publication all documents relevant to the matter.

[4] The parties have filed written submissions, and the matter was listed for a hearing today.

[1] I have heard the submissions from the parties today, and there are several issues in this application. As the discussion in the hearing today revealed, some of the issues are interrelated. First, should the Commission re-open the proceedings for which the decision was delivered? Second, but also, the Appellant argues, part of why the Appellant says the matter should be reopened - should the orders be granted to not publish the decision at all, or alternatively, de-identifying the Appellant in the decision, and orders preventing search or publication of the Commission file details of the case.

[5] There is a further issue as to what appears to be a mistaken reference in the decision about whether the Respondent's investigations into the Appellant's conduct found that the Appellant had engaged in 'misconduct.'

Should I allow for a reopening of the proceedings?

[6] It is not controversial that the Commission has power to re-open proceedings. As his Honour, Merrell DP, said in Neil v Lee (No 2),[1] the combined effect of s 484 (1) and s 485(b) of the IR Act allows for reopening of proceedings.

[7] Neil (No 2) was a case where the decision had in fact been published on the Supreme Court website. His Honour was referred to an earlier decision of Fowler v Workers' Compensation Regulator ('Fowler').[2] His Honour observed that there was a difference between the circumstances in Fowler and Neil No 2 in that in Fowler, the decision had not been published to the Supreme Court of Queensland website as had been the case in Neil (No 2). However, relevantly, his Honour observed in Neil (No 2) that in those circumstances:[3]

... there is no reason to think that the relevant principles referred to in that case [i.e. Fowler] may not assist in guiding the exercise of the discretion under s 484(1) of the IR Act.

[8] In Algahamdi v Queensland (Cairns and Hinterland Hospital and Health Service),[4] Dwyer IC cited and followed his Honour, Merrell DP's observations of the relevant principles for deciding whether to re-open proceedings in Fowler as follows:

(a) first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application;

(b) second, in Smith v New South Wales Bar Association,[5] the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side;

(c) third, in Reid v Brett,[6] the criteria governing the exercise of the discretionary power to reopen the case to admit further evidence where a hearing has concluded, but judgement has not been delivered, was said to be:

(i) the further evidence is so material that the interests of justice require its admission;

(ii) the further evidence, if accepted, would most probably affect the result of the case;

(iii) the further evidence could not by reasonable diligence have been discovered earlier; and

(iv) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

(d) fourth, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain litigation imposes on personal litigants; and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation, cannot always be measured in terms of money or cured by an order for costs; and

(e) finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.

[9] The Appellant's key submission is that publicising of the relevant material will likely cause health-related harm. The Appellant's doctor's letter, which I discuss later in these reasons, makes specific mention of that as well. It is appropriate to deal with this element now because it is part of why the Appellant argues the case should be re-opened. The Appellant argues that the combined effect of the particular path that the proceedings took in this case, as well as the health-related reason for why the de-identification and non-publication orders are sought, amount to a basis for re-opening because it satisfies the justice of the case to do so in these particular circumstances.

[10] Like the power to re-open, the parties agree that there is a power to issue the de-identification and non-publication orders of a type sought by the Appellant.

[11] J v L & A Services Pty Ltd (No 2),[7] is the leading authority and in it their Honours set out six principles regarding the exercise of discretion to issue what can generally be described as 'suppression orders' such as those the Appellant seeks. I summarise those six principles from L & A Services as follows:

(a) The paramount consideration is the due administration of justice being open and transparent;

(b) Suppression may be warranted when failing to do so might frustrate the purpose of proceedings or cause a threat to national security;

(c) The exceptions to the principle of open justice are not based upon potential to deter parties from bringing proceedings, as legislatures are better equipped than courts to make informed decisions on such matters;

(d) No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible;

(e) Different degrees of restraint are permissible for different purposes; and

(f) The embarrassment, even severe, that a party might experience due to the sensitive or personal nature of matters being litigated is not, on its own, a basis for an exception.

[12] His Honour, O'Connor VP, endorsed the paramountcy of open justice and the limited circumstances that qualify as exceptions in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd.[8]

[13] Examples of exceptions to the rule can be seen in situations where there is proven to be a real risk of harm to the relevant person that goes beyond mere embarrassment such as in R v O'Dempsey (No 3).[9]

[14] There are many decisions of the Commission refusing suppression on the basis of mere embarrassment, or reputational damage, or to keep or maintain privacy. A potential risk of discouraging other litigants coming forward has also been rejected as an exception to the principle of open justice. I will footnote those in written reasons that follow.[10]

[15] Further illustrating how narrow this category of exceptions is on the issue of harm, evidence of the possibility of domestic violence will not suffice. There needs to be evidence proving that a real risk of harm exists.[11]

[16] In Waite v State of Queensland (Department of Environment and Science),[12] Power IC accepted that a proven real risk of harm to the mental health of the relevant person was sufficient so long as suppression did not detract from the essence of the decision.

Why would I re-open the case and order some form of suppression?

[10] The Appellant advances two alternative arguments. The first is misguided and must be rejected. It is essentially that the matter should be reopened so that the appeal can be withdrawn. The effect is argued such that there would then be no decision made because the appeal will have been withdrawn before the decision is made. Therefore, the Appellant argues, the de-identification/non-publication issue will resolve itself. There is no legal basis for re-opening an appeal so that it can be withdrawn. Withdrawing the appeal is also not possible once a decision has been delivered. That might be different for proceedings that are still on foot where no judgement has been delivered. But that situation cannot be artificially created as the Appellant has proposed.

[11] In the alternative, the Appellant argues that a procedural injustice occurred as part of the process of the hearing of the appeal and the decision relating to threshold issues. A change in the way the matter was due to proceed is argued to have deprived the Appellant of the chance to apply for de-identification/non-publication orders. The Appellant had planned to make the application as part of a round of reply submissions that had been ordered. However, those orders were vacated when a disclosure application and threshold issues resulted in determining the matter. As a result, that second round of submissions was never called for.

[12] By way of a brief history of the proceedings, the appeal was filed on 5 February 2025. On that same day, the Appellant filed a Form 4 application in existing proceedings seeking a stay on another matter that was before another member of the Commission, which the Appellant argued was "linked" with this one. At the same time, the Appellant also filed a second Form 4 application in existing proceedings. It sought orders that the member of the Commission who was hearing the other matter hear and determine this matter as well.

[13] I called the matter on for mention on 14 February 2025, where I proposed the Appellant address with written submissions the issue of joinder, and separately, the threshold issue that the Respondent had raised being jurisdiction. Specifically, that the appeal was filed outside the limitation period because the appeal was not of a 'decision' as stated, but rather, of an earlier decision finding that the Appellant was exposed to being disciplined.

[14] Orders were issued that day providing the parties with separate orders for dealing with the Appellant's joinder application and the threshold jurisdiction issues.

[15] In accordance with those orders, on 28 February 2025, the Appellant filed some submissions.

[16] At a directions hearing held on 14 March 2025, the Appellant applied for, and was granted, extra time to put on submissions in reply to those of the Respondent, which were due to be filed and served later that day. The matter would be decided on the papers unless either party sought an oral hearing. It was discussed at the mention hearing that at any time the Appellant sought document disclosure, that could be done by way of an application in existing proceedings.

[17] Consequently, the 14 February 2025 orders were vacated by a new directions order dated 14 March 2025. This new 14 March 2025 directions order gave the Appellant extra time (4 April 2025 rather than 21 March 2025) to put on submissions in reply to the Respondent's submissions.

[18] The Respondent filed its submissions on the joinder and jurisdictional issues on 14 March 2025. It was these submissions that the Appellant was due to file a reply to on 4 April 2025. However, on 25 March 2025, the Appellant filed an application in existing proceedings seeking to vary the then current orders. In summary, the Appellant's primary argument was that orders for disclosure were required as the documents sought were essential to the Appellant being able to make submissions in reply as per the orders.

[19] On 26 March 2025, I issued orders in relation to the Appellant's application in existing proceedings. Those orders provided that the Appellant file submissions in support of the application for disclosure orders. The Respondent was to file responding submissions and the Appellant was to file submissions in reply. The final order provided that unless the parties asked for an oral hearing, the matter would be dealt with on the papers.

[20] I pause to note that these orders issued on 26 March 2025 were specific to the Appellant's application in existing proceedings about disclosure. They did not mention or interfere with the 14 March 2025 orders, which had been varied to grant the Appellant extra time to put on a reply to the Respondent's submissions about joinder and jurisdiction.

[21] However, after reading correspondence from the Appellant received on 27 March 2025, I issued an order vacating the 14 March 2025 orders. Relevantly that correspondence from the Appellant said:

I do not believe I can make the appropriate representations in my final submission due 4 April 2025 under the Directions Order dated 14 March 2205 [sic] without disclosure, as requested in my Form 4 application; as detailed in my Form 4 application.

I note the Directions Order issued 26 March 2026 [sic] has requested submissions from both parties on the issue of disclosure after the date my final submission is required under the Directions Order issued 14 March 2025 (being 4 April 2025).

My Form 4 application was asking for the Directions Order dated 14 March 202 [sic], and due date of final submission being 4 April 2025, to be 'stayed' or delayed or the Directions Order dated 14 March 2025 to be amended until the issue of disclosure is heard and decided.

But this does not appear to be reflected in the Directions Order issued 26 March 2025.

From my perspective, there is little to no point being heard on the issue of disclosure in April 2025 if by that date I have had to provide my final submission (by 4 April 2025) under the Directions Order dated 14 March 2025 and Commissioner Pratt is potentially to decide on the issue to be determined under the Directions Order of 14 March 2025 before we even get to the issue of disclosure as per my Form 4 application. And as stated above, I can't provide my best representation under the Direction Order issued 14 March 2025 without disclosure as requested

[22] The submissions for the application in existing proceedings for disclosure orders were filed in accordance with the orders for that matter.

[23] I have reviewed the history of the matter as well as the transcript and accept the Appellant's submission that it is at about the point in time of filing the application for disclosure orders that the focus shifted to the threshold question of whether the appeal was of a 'decision' and therefore appealable at all. My finding in the decision was that there was not an appealable 'decision' and therefore, obviously, it followed that there was no case for disclosure.

[24] However, as is submitted, I accept that the Appellant did not end up having the chance that was anticipated to make an application for de-identification/non-publication orders. That alone, in my opinion would not ordinarily be sufficient to warrant a reopening because the Appellant had more than ample opportunity to make such an application at other times. After all, the Appellant has made several applications as well as the substantive appeal and is no stranger to the process.

[25] As noted earlier, a key question to be answered here is whether the justice of the case warrants a re-opening. In this case, I think it does. But not just because the Appellant was denied the step intended to be when the issue would be raised before a decision was delivered. Rather, it is because if the Appellant had done so, and had presented the evidence that is presented now in this application, I would have granted orders for de-identification and preventing search and publication. As I explain later in these reasons, it is the combination of those two things that have led me to this conclusion.

[26] I accept that there is some prejudice to the Respondent in having to deal further with the matter. Finality of litigation is important. However, it is not as though the Respondent has to re-open an evidentiary case and substantially recast its defence to a new claim. And as I have found earlier, there is in my opinion an injustice that needs to be corrected which I shall explain now.

[27] The Appellant has presented the Commission with a letter from a treating doctor who is a clinical neuropsychologist and clinical psychology registrar specialised in concussion and complex cognition. That letter sets out a number of medical conditions that the doctor says "collectively contributes to heightened vulnerability and psychological distress in response to public scrutiny or exposure" in the Appellant. The doctor goes on to say:

It is my clinical opinion that public disclosure or publication of matters relating to [the appellant] would be likely to cause substantial detriment to his mental health. Specifically, exposure through public reporting or dissemination of case details would be expected to exacerbate anxiety and trauma - related symptoms, heightened emotional dysregulation, and interfere with ongoing psychological treatment and recovery.

[28] In my opinion, that letter clearly states that there is a substantial and real risk of harm to the Appellant should the orders sought not be granted. It satisfies the test as applied by Power IC in the case of Waite that I mentioned earlier in these reasons.

[29] Put simply, had the Appellant presented the evidence now presented, at the time the Appellant expected to, I would have granted the application for de-identification. I would also have granted orders preventing search and publication of the Commission file in the matter.

[30] I would not have been satisfied that there was a case made out for non-publication of the decision, however. Based on the medical evidence, I am satisfied that this is a case like that which their Honours mentioned in A & L Services where the court or tribunal may make orders only to the extent necessary to prevent harm, but no further than that. Taking the steps I have referred to earlier would do so in my opinion.

[31] Coming back to the Appellant's submission about the process followed, I accept that it was the Appellant's plan to make an application for non-publication or de-identification at the second round of submissions. I also accept that the Appellant was unable to do so when the proceedings took a turn into interlocutory arguments over disclosure and the threshold deciding issue was thrust to the forefront of the proceedings. As I have observed earlier, had the Appellant had a chance to put these arguments before me prior to the decision being issued, I would likely have granted some of the application for the reasons I set out earlier. In my opinion, that satisfies the justice of the case test as being sufficient grounds to re-open the matter and grant some of the orders sought.

Why a minor amendment should be made to paragraph [6] of the decision

[32] The Appellant also argues that paragraph [6] of the decision incorrectly describes the Respondent's investigations into the Appellant's conduct as finding the Appellant had engaged in 'misconduct'. The Respondent acknowledges that the investigations relevant to the Appellant's complaint mentioned in paragraph [6] of the decision did not find that the Appellant had engaged in 'misconduct'. Although it is not material to the outcome of the case, the reference to 'misconduct' as a finding is clearly a mistake. In my opinion, it should be corrected.

[33] The Respondent contends that if the Commission agrees that there is an inaccurate description, the appropriate course is to correct the decision pursuant to the power at ss 539 (e) and (f) of the IR Act and r 95 of the Rules, rather than supress publication entirely.[13] The Respondent submits that a minor amendment is all that is required so that the reference is correct. It proposes that the relevant passage of words be amended as follows, which I have anonymised where necessary:

[6] On 22 December 2022, [the Appellant] made a formal complaint about the Respondent's handling of allegations about alleged conduct by [the Appellant] ('Complaint').

[34] I accept the Respondent's submissions on this point. The proposed amendment is the appropriate way of dealing with the issue by way of correction in my opinion.

[35] The Appellant has made out a case for reopening the matter and, at the same time, also made out a case for some of, not all, of the orders sought. A case has also been made out for a minor amendment to paragraph [6] of the decision.

1. The application to re-open the matter is granted.
2. The decision will be amended so as to not alter the substance of it but to ensure that the Appellant's name and those of other persons and the specific employing entity are de-identified;
3. The decision will be amended at paragraph [6] so that the first sentence reads: '[6] On 22 December 2022, the Appellant made a formal complaint about the Respondent's handling of allegations about alleged conduct by the Appellant.'
4. The contents of the Queensland Industrial Relations Commission file in matter number PSA/2025/18 are prohibited from search and publication.

[1] [2024] QIRC 149 ('Neil (No 2)').

[2] [2019] QIRC 149.

[4] [2021] QIRC 223.

[5] [1992] HCA 36; (1992) 176 CLR 256.

[6] [2005] VSC 18.

[7] [1995] 2 Qd R 10 ('L & A Services').

[8] [2021] QIRC 263 ('Aurizon').

[9] [2017] QSC 338 [24].

[10] Alderding v State of Queensland (Queensland Health) [2022] QIRC 268; Sane v State of Queensland (Queensland Health) [2023] QIRC 143; Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 91; Dhanapathy v State of Queensland (Queensland Health) [2023] QIRC 017; Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136; Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223; Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 332; Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 329; Rutter v State of Queensland (Queensland Health) [2023] QIRC 054; Mutonhori v Mount Isa City Council [2024] QIRC 41; Turay v Workers' Compensation Regulator (No. 2) [2023] QIRC 169; White v State of Queensland (Queensland Health) [2023] QIRC 49; Biddle v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2) [2021] QIRC 321.

[11] Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor [2024] QIRC 20, [15]-[23].

[12] [2024] QIRC 144, [18]-[27] ('Waite').

[13] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (No 4) [2015] WASCA 253 [28] - [29].