INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Maish v State of Queensland (Queensland Health) [2024] ICQ 017
	
PARTIES:	Maish, Megan
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
FILE NO:	C/2024/1	
PROCEEDING:	Appeal against decision of Commission and
Application in existing proceedings
	
DELIVERED ON:	27 August 2024	
HEARING DATE:	16 April 2024	
MEMBER
ORDERS:	O'Connor VP
1.	The appeal is dismissed.
2.	I direct that the submissions of the Appellant filed on 23 February 2024 be withheld from release or search absolutely without an order of the Court.
3.	The Respondent file and serve upon the Appellant by 4.00 pm Friday 30 August 2024 any written submissions on the costs of the appeal.
4.	The Appellant file and serve upon the Respondent by 4.00 pm Friday 20 September 2024 any written submissions in reply on the costs of the appeal.
5.	Each party have leave to file and serve by 4.00 pm Friday 27 September 2024 any application for leave to make oral submissions as to the costs of the appeal.
6.	In the absence of any application to make oral submissions on the costs of the appeal being filed by 4.00 pm Friday 27 September 2024, the question of costs will be decided on any written submissions filed and without further oral hearing.	
		
CATCHWORDS:

LEGISLATION:	INDUSTRIAL LAW - QUEENSLAND - PUBLIC SECTOR APPEAL - APPEAL TO INDUSTRIAL COURT - APPLICATION IN EXISTING PROCEEDINGS - where respondent applies for suppression of appellant's submissions or names of patient and employees identified - where appellant is employed as a clinical nurse at the Princess Alexandra Hospital - where appellant made a Public Sector Appeal to the Queensland Industrial Relations Commission (QIRC) - where appeal against two substantiated allegations in relation to performance of her duties - where disciplinary penalty proposed - whether decision was fair and reasonable - where QIRC confirmed the decision appealed against - where appellant appealed to the Industrial Court of Queensland (ICQ) pursuant to s 557 of the Industrial Relations Act 2016 - where such appeal is limited to grounds of error of law or excess or want of jurisdiction - where appellant has not identified or articulated any errors of law - where appellant alleges bias in comments made by the Industrial Commissioner - where appellant attempting to reargue matters agitated before the QIRC - where appellant raises new arguments not made before the QIRC - whether allegations by appellant are relevant to the appeal before the ICQ - whether the Industrial Commissioner made any error of law

Acts Interpretation Act 1954
Hospital and Health Boards Act 2011, s 139, s 139A, s 142
Industrial Relations Act 2016 (Qld), s 424, s 451, s 557, s 580, ch 11 pt 6, div 4
Mental Health Act 2016, s 272
Public Sector Act 2022 (Qld), ch 7, pt 1

CASES:

APPEARANCES: 	Industrial Relations (Tribunals) Rules 2011, r 97, r 139

Ainger v Coffs Harbour City Council [2005] NSWCA 424
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Althaus v Australia Meat Holdings Pty Ltd [2009] QCA 221
Anderson & Anor v National Australia Bank [2007] VSCA 172
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Charisteas v Charisteas (2021) 273 CLR 289
Cleal v State of Queensland (Queensland Health) [2023] ICQ 006
DL v The Queen (2018) 266 CLR 1
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fleming v The Queen (1998) 197 CLR 250
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
Huang v University of New South Wales (No 3) (2006) 154 FCR 16
J v L & A Services Pty Ltd (No 2) [1993] QCA 12; [1995] 2 Qd R 10
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Maish v State of Queensland (Queensland Health) (No 2) [2023] QIRC 362
McDonald v Tinbilly Travellers Pty Ltd (2006) 183 QGIG 841
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504
Michael Wilson & Partners Ltd v Robert Colin Nicholls (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Politis v Commissioner for Taxation (Cth) (1988) 16 ALD 707
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100
R v Sussex Justices; Ex parte McCarthy [1924] KB 256
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
Robertson v Hollings [2009] QCA 303
Scott v Scott [1913] AC 417
Vakauta v Kelly (1989) 87 ALR 633
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Ms M Maish, the Appellant representing herself.
Ms A C Freeman of Counsel instructed by McCullough Robertson, Lawyers for the Respondent.	
		
Reasons for Decision
[1]	On 10 January 2024 Ms Megan Maish ('the Appellant') appealed a decision of the Queensland Industrial Relations Commission ('the QIRC/the Commission') dismissing her Public Sector fair treatment appeal against a decision made by the State of Queensland (Queensland Health) ('the Respondent') in which two allegations were substantiated by Metro South Health ('MSH').
[2]	A Directions Order was issued on 22 January 2024 with the matter listed for hearing on 16 April 2024.  The Appellant filed submissions on 23 February 2024 and the Respondent filed submissions in response on 22 March 2024.

Background
[3]	The Appellant was employed by the Respondent within MSH, based at the Princess Alexandra Hospital ('the PAH').
[4]	The Appellant commenced her employment with the Respondent on 2 January 2017.  At the relevant time, the Appellant was employed as a clinical nurse on a permanent part‑time basis.
[5]	In October 2022, MSH received a telephone complaint from a patient of the PAH Adult Acute Inpatient Services Unit.  What was alleged is that the patient was unnecessarily administered an intramuscular injection ('IMI') in contravention of s 272 of the Mental Health Act 2016.
[6]	On 10 January 2023, the Appellant was issued with a notice to show cause.  In short, the notice to show cause raised the following two grounds:
(a)	on 15 September 2022, in your role as a Clinical Nurse, East Wing, PAH, you authorised the physical restraint of a patient, whilst you administered an IMI anti-psychotic medication to him, despite it not being clinically indicated; and
(b)	on 15 September 2022, in your role as a Clinical Nurse, East Wing, PAH, you documented false information in a Riskman Report in relation to the same patient.
[7]	The interaction with the patient was recorded.  Audio and video footage was extracted from body-worn cameras of the PAH Safety and Response Officers.
[8]	On 24 January 2023, the Appellant together with a representative of the Queensland Nurses and Midwives' Union of Employees ('the QNMU') viewed the body worn camera footage of the incident.  Throughout the disciplinary process the Appellant was supported by the QNMU.
[9]	On 7 February 2023, the Appellant responded to the notice to Show Cause. 
[10]	A second show cause notice was issued on 1 June 2023 advising that the allegations had been substantiated and that the Appellant was liable to be disciplined.  The correspondence to the Appellant proposed disciplinary action of a reduction in classification level, a consequential change of duties, in addition to management action. 
[11]	On 8 June 2023, the Appellant filed an appeal against the delegated decision-maker's decision to substantiate the allegations.  The appeal was conducted before the QIRC in accordance with ch 7 pt 1 of the Public Sector Act 2022 (Qld) ('PS Act') and under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
[12]	Conferences were conducted by the Industrial Commissioner on 30 June 2023 and 12 July 2023.  During the Conferences, the QNMU provided support for the Appellant.  However, on 1 August 2023 the QNMU filed a notice in the Industrial Registry withdrawing as an Agent.  On the same date the Industrial Commissioner issued a Directions Order seeking the parties file written submissions.
[13]	On 11 August 2023 a Further Directions Order was issued requiring the Appellant to file written submissions in response to the Respondent's submissions filed on 9 August 2023. 
[14]	The Appellant filed her written submissions on 22 August 2023.
[15]	The Industrial Commissioner issued her reasons for decision on 19 December 2023.
[16]	The Industrial Commissioner determined that the decision-maker's decision was fair and reasonable.  In coming to that conclusion, the Industrial Commissioner found that the Appellant engaged in the conduct the subject of the two allegations, and in doing so, had contravened the relevant procedures and standards, and in turn the Public Sector Code of Conduct.

Nature of appeal

[17]	The Appellant appeals the Decision of the Commission to the Industrial Court of Queensland ('the Court') pursuant to s 557 of the IR Act.  That section provides decisions from the Commission can be appealed against on the grounds of errors of law or excess or want of jurisdiction.  Section 557 of the IR Act provides:

	557	Appeal from commission

(1)	The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of -
(a)	error of law; or
(b)	excess, or want, of jurisdiction.
(2)	Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court's leave, on a ground other than -
(a)	error of law; or
(b)	excess, or want, of jurisdiction.
(3)	However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
(4)	If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court's leave on a ground mentioned in subsection (2).
(5)	In this section -
	commission means the commission, other than the full bench constituted by the president and 2 or more other members.
[18]	The power to grant leave under s 557(2) of the IR Act to argue grounds other than error of law or excess or want of jurisdiction is limited by s 565 of the IR Act to circumstances where it is in the public interest to grant leave. 

The appeal before this Court
[19]	The Appellant's written submissions shed no light as to the particulars of the appeal.  The grounds of appeal were difficult to identify, the document itself was discursive and the Appellant merely sought to reagitate the issues raised in the appeal at first instance.  It is not the task of this Court to search through an application to appeal to identify the grounds of appeal or how it is asserted that the Commission has fallen into error.
[20]	Rule 139 of the Industrial Relations (Tribunals) Rules 2011 ('the IR Rules') requires that a notice of appeal state whether the whole or part of the decision is appealed, and the parts of the decision subject to appeal.  Moreover, the notice must state the grounds of appeal concisely.  The notice should, then, succinctly identify the law or facts supporting each of those grounds and the final relief sought.
[21]	The written submissions of the Appellant fail to clearly articulate the grounds of appeal, nor do they draw to the Court's attention the alleged errors in the proceedings at first instance.
[22]	The application to appeal before this Court is fundamentally flawed as it concerns only questions of fact. 
[23]	In Gambaro v Workers' Compensation Regulator, Martin J wrote:

… The requirement that grounds of appeal be stated concisely encompasses not only a demand for brevity, but also clarity.  It is a breach of r 139 [of the Industrial Relations (Tribunals) Rules 2011] to inadequately articulate the actual basis of each ground of appeal.
[24]	His Honour went on to observe:

The purpose of the rules is to provide for the just and expeditious disposition of proceedings.  It is contrary to this purpose for a party to file protracted or ambiguous notices of appeal, or to supplement a notice with large amounts of material that will not assist the court in the determination of the matter.  The consequence of the appellant's noncompliance with the rules is that the court may set aside or strike out part or all of the notice of appeal.
[25]	In Robertson v Hollings Keane JA (with whom Fraser JA and Cullinane J agreed) said:

[L]itigation is not a learning experience.  The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties.  It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.
[26]	The consequence of the Appellant's noncompliance with the rules is that the Court may set aside or strike out part or all of the notice of appeal.  However, where a party is unrepresented, a Court should be reluctant to dismiss an appeal that is defective only because of the Appellant's inability to clearly articulate the grounds of an appeal.
[27]	As such, I propose to examine, as best they can be determined, each of the Appellant's grounds of appeal to ascertain whether the notice reveals appealable error.

Ground 1 - The Industrial Commissioner was biased. 
[28]	It is submitted by the Appellant that during the course of conference in advance of the hearing of the public sector appeal, comments were made by the Industrial Commissioner which might convey the impression that she had formed a concluded view. 
[29]	In the written submissions, the Appellant wrote the following:
I am applying for an appeal based on the treatment I received from the judge, she continuously made inappropriate comments during mediation such as "I should be playing Qhealths game" and stated I would be found guilty prior to reviewing the written evidence I had provided before the appeal went "on the papers".  She actively attempted to persuade me out of a fair process by making threats that I would be like another case she had dealt with where the person was attacked by the media.  There was a very clear and early bias that skewed her views and deprived a fair process.
[30]	During oral submissions before this Court, the following exchange took place:
HIS HONOUR:	And so, in your submissions, you say - at page 1 of them:  I should be playing the Q Health's game.  I don't know - understand what that means.  Or the context in which you say it was said.
APPLICANT:	She just suggested that I should just be taking whatever they gave me.  And it was completely just biased towards them.  She just believed them.  Despite the fact that I had evidence on the RiskMan of the time that the RiskMan was written.  She wrote in her statements that I had misconstrued that, and it was written at the time that the incident was taking place, which is physically impossible because you can see me on the video not writing a report.
[31]	In Ebner v Official Trustee in Bankruptcy, it was pointed out that application of the apprehension of bias principle requires two steps.  First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits.  And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
[32]	In Michael Wilson & Partners Ltd v Robert Colin Nicholls, the plurality of Gummow ACJ, Hayne, Crennan and Bell JJ said:

[31] 	It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.  No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.

[32] 	As the plurality in Johnson v Johnson explained, "[t] he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasize that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues".
[33] 	Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias.  An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question.  No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done.  But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.  The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue. (Footnotes omitted)
[33]	At [63], the plurality went on to observe:

In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps.  First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits.  And secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.  The plurality in Ebner went on to say that "[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated".  So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making. (Footnotes omitted)
[34]	An apprehension of bias may arise if an Industrial Commissioner's comments suggest that the matter has been subject to prejudgment.  Such a finding will arise where 'an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion'.
[35]	However, an Industrial Commissioner may express preliminary or tentative views during proceedings, express doubts, or seek clarification without creating an apprehension of bias.  Predispositions or inclinations to determine a matter in a particular way are not, however, prohibited by the bias rule, unless they are 'sufficiently specific or intense' to amount to prejudgment.
[36]	The central and determinative question that needs to be addressed is:  might what was done in connection with the conference reasonably cause a fair-minded lay observer to apprehend that the Industrial Commissioner might not bring an impartial mind to the resolution of the Public Sector appeal?
[37]	In coming to an assessment of that question, it is important to recognise that the comments that were said to be made by the Industrial Commissioner arose during a conference.
[38]	Where there is an allegation of apprehended bias based on pre-judgment arising from conduct or statements by a decision-maker, it is critical that the conduct or statements be viewed in their context by the hypothetical observer.  Statements which, when viewed in isolation, might be regarded as presenting a clear case of apprehended bias can take on a different complexion when they are placed in a broader context. 
[39]	Public sector conferences are not routinely recorded.  As such, the Court does not have the advantage of a transcript of what was actually said or the context in which it was said.  Equally, the Respondent is unable to address any of the comments said to be made by the Commission in private conference to which it was not a party.
[40]	It is not uncommon in matters involving public sector appeals to have a preliminary conference.  The conference serves as an informal meeting between the parties, and an Industrial Commissioner, with the aim of assisting the parties to understand their respective positions in the matter and possibly reaching an outcome without the need for a hearing.  Moreover, a conference can be beneficial in providing information to the parties as well as an explanation of the steps with regard to the process of these matters in the Commission.  This is particularly so when one of the parties is self-represented. 
[41]	The conduct of a conference by the Industrial Commissioner does not of itself preclude the Commissioner from determining the public sector appeal.  Involvement by the Industrial Commissioner in the conference did not require her to determine any matter on a final basis. 
[42]	In a public sector appeal, the task of the Industrial Commissioner is to determine whether or not the decision of the primary decision maker was fair and reasonable. 
[43]	In short, the apprehension of bias principle is that, "… a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".
[44]	So much was made clear by Dixon CJ, Williams, Webb and Fullager JJ in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd:
But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties.  Bias must be 'real'.  The officer must have so conducted himself that a high probability of bias inconsistent with the fair performance of his duties, with the result that substantial distrust of the result must exist in the minds of reasonable persons.  It has been said that "preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence would be disregarded".
[45]	As I observed above, the nature of a conference in a public sector appeal and the role of an Industrial Commissioner is such that they are expected to bring their own views to the conference.  Those views are often informed by their own experience. 
[46]	In Laws v Australian Broadcasting Tribunal, Gaudron and McHugh JJ observed:
A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry ... When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
[47]	In Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka, the High Court wrote:
First, it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached.  Something more is required.  Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person "might" (rather than "would") entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be "firmly established".  This reflects a recognition that decision-makers (whether in the judiciary, in adjudicative tribunals or elsewhere vested with public power) are human beings.  They have foibles and personal characteristics that vary substantially, reflecting differences of view that also exist in the community at large.  Being independent, such decision-makers, in their professional conduct and utterances, will often exhibit robust individuality that is characteristic of people who are obliged to make important and difficult decisions without fear or favour.
[48]	Whilst the comments might engender in an observer "… a sense of unease or a feeling that conventions of discretion and prudence have been breached" they are not such as to lead to a conclusion that a reasonable bystander might apprehend that the Industrial Commissioner might not bring an impartial mind to the determination of the public sector appeal.
[49]	On a proper assessment of the terms of the statements by the Industrial Commissioner, the comments could not be said to be indicative of prejudgment.  There is no suggestion that her comments were suggestive of a mind which had been swayed strongly in one direction; nor as one which was, from the outset, closed to persuasion.
[50]	The Respondent further contends that the Appellant has waived her opportunity to raise any concerns of bias in relation to the Industrial Commissioner.
[51]	It was submitted by the Respondent that the allegations of bias should be made at the earliest possible moment in proceedings to enable the Commission to consider, and if thought fit, comment on the allegations.  The Appellant, it was argued, had an opportunity to raise her concerns about bias when the Commission progressed the matter to its determination phase, but did not do so.  It became apparent to the Appellant after 1 August 2023 when a mention was held, and directions were issued for the hearing by the Industrial Commissioner that the same member of the Commission was conferencing and determining the matter. 

[52]	The Respondent submits this was the opportunity at which the Appellant ought to have raised any concerns of bias.  By choosing not to raise her concerns about bias, the Appellant is unable to raise them at this late stage.

[53]	It has been recognised that as a general rule, a party cannot 'stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground of apprehended bias'.

[54]	The extent to which the principles governing waiver may be modified in cases involving unrepresented parties is far from settled.  

[55]	In Vakauta v Kelly, Brennan, Deane and Gaudron JJ reasoned that:

[5]	… It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

[56]	In Huang v University of New South Wales (No 3), Rares J took the view that judicial conduct might sometimes be 'so obviously questionable … that the unrepresented party was bound to object then and there rather than chancing to how the ultimate decision may go'.  His Honour wrote: 

… in most cases, unrepresented parties, however intelligent or worldly, will not have a sufficient familiarity with the practice and procedure involved in litigation to know when a judicial officer has gone potentially too far.  Not only do unrepresented parties usually feel the ordinary, but very real, stress and nervousness which being in court generates but they are entitled and are likely to assume that the judicial officer is doing his or her job fairly and according to the law.  So something which is unusual to a lawyer may not strike an unrepresented party as such.  An unrepresented party may think what has occurred is how courts do things, and so not realise immediately that anything legally wrong has occurred, however upsetting the judicial officer's conduct may be.

[57]	The approach to be taken by the Court in determining waiver in circumstances involving a self-represented party, will inevitably be determined by the nature of the bias alleged and the context in which it arises.

[58]	It is clear on the material before me that conferences were held before the Commission on 30 June and 12 July 2023. The Appellant did not assert any claim of apprehended bias after the conferences or at the mention on 1 August 2023 where directions were issued for the conduct of the hearing.  It was not until the filing of this appeal on 10 January 2024 that a claim of bias was first raised.  

[59]	During argument before this Court, the Appellant was asked:
HIS HONOUR:  Yes, yes.  And - but you didn't raise anything between those mediations, or conferences, as they were, and the reasons - the release of the reasons for decision.  You didn't raise any issues.  You didn't raise it as a problem.  You didn't say to her that I don't want you to sit on it. 
APPLICANT:  I didn't - I wouldn't have known how to do that. 
HIS HONOUR:  Right. 
APPLICANT:  I thought appealing the decision now was how I did that.

[60]	Whilst there was delay in raising the issue of bias, I am not convinced that the circumstance of the delay would be such as to justify the refusal of relief in the event that the apprehension of bias rule was engaged.
Other grounds of appeal
[61]	The Appellant has not clearly identified or articulated any errors of law in her Appeal or her submissions.
[62]	Further, the Appellant's submissions raise arguments which were not agitated on the hearing of her Public Sector Appeal, and which have only been raised for the first time in this Appeal.

[63]	The Respondent submits those grounds should not be heard by the Court for that reason.  However, the Respondent nevertheless briefly addressed those matters in their written submissions, in addition to the existing grounds.
[64]	   Allegation One alleges that the Appellant contravened the ABDM procedure by bypassing the first and second-line treatment options, instead choosing to administer intermuscular medication when it was not warranted.

[65]	The sole issue for determination before the Industrial Commissioner was whether the decision appealed against was, in all the circumstances, fair and reasonable.  The Respondent submits the Appellant has misread or selectively read various paragraphs in the Decision.

[66]	In accepting that the Decision appealed against was fair and reasonable the Industrial Commissioner concluded that:

[86]	In my view, Ms Maish departed from the Code when she contravened the ABDM procedure and administered IMI anti-psychotic medication despite it not being clinically indicated.

…

[103]	I am therefore unable to accept Ms Maish's explanation for the conduct in Allegation Two.
[104] 	For the above reasons, I consider it was open to Ms Hipper to conclude the account recorded by Ms Maish was false and in doing so, Ms Maish has failed to comply with her reporting obligations and the Code of Conduct: Principle 3.1 Commit to our roles in public service.

[67]	Ultimately, the Industrial Commissioner found that:

[105]	I am also satisfied it was open to Ms Hipper to make a decision in respect of both Allegations having regard to her position as A/Executive Director, Addiction and Mental Health Services, Metro South Health.

[68]	Before the Commission, the Appellant relied on an earlier incident which took place in a courtyard as some justification for administering the IMI.  In that incident, it was submitted by the Appellant that the patient had been aggressive towards another nurse.  Moreover, it was submitted that the patient had been previously dismissive of the efforts of staff to de-escalate aggressive conduct and had been resistant to accepting oral medication on other occasions. 
[69]	What was alleged against the Appellant was a contravention of the ABDM procedure by bypassing the first and second-line treatment options, instead choosing to administer intermuscular medication when it was not warranted. 
[70]	The Appellant was critical of the decision for failing to have regard to the prior incident in the courtyard.  Further it was submitted by the Appellant that the decision referred only to verbal threats made to the Appellant.  The Appellant contends that "… the court in their ruling made comments surrounding the events that took place in the courtyard that were not fair given they could have had that footage to present a fair representation or a fair trial."
[71]	In determining whether the allegation could be substantiated it is not surprising that the Industrial Commissioner focused her attention on the events immediately leading up to the administering of the IMI.  In assessing the evidence, the Industrial Commissioner had regard to the courtyard incident but concluded that it was open for the primary decision maker to find that the relevant standard had been breached.  The Industrial Commissioner's reasons for coming to that conclusion were as follows:
[81] 	Certainly, I accept that within the PAH Addiction and Mental Health Inpatient Service there will be occasions where a patient who is mentally unwell will be aggressive and unwilling to comply with reasonable directions. 
[82] 	However, while it may be the case that the incident in the courtyard triggered Ms Maish's decision to administer an IMI and that the patient had exhibited challenging behaviour in the past, the difficulty with Ms Maish's reliance on this event as justification for the deviation from the ABDM process is that in the period following the courtyard incident and prior to the administering of the IMI, the patient was no longer elevated, was not threatening or aggressive and was agreeable to taking oral medications.
[83] 	I am not persuaded therefore that Ms Maish had a reasonable excuse for non-compliance with the ABDM.  I also consider it was reasonable for Ms Hipper to have concluded there was ample opportunity for Ms Maish to review the patient's conduct, adjust her approach and comply with the ABDM pathway.
[84] 	I am satisfied therefore, for the reasons set out above, that it was open to Ms Hipper to conclude the relevant standard had been breached.
[72]	The Appellant made submissions to the Commission (and again on this appeal) concerning the inadequacy of the investigation, in particular the failure to interview relevant witnesses and the Appellant's inability to obtain corroborating statements due to confidentiality obligations.  It was also submitted by the Appellant that the Respondent knowingly allowed CCTV footage to be deleted.  The Industrial Commissioner deals with these contentions at paragraphs [109]-[111] of her written reasons for decision:
[109]	While the CCTV footage or witness statements may have been helpful in terms of establishing a more accurate timeline and in providing further context around the events that initially triggered Ms Maish's consideration about whether to administer an IMI, having viewed the footage and other materials before the Commission in respect of the period in which the actual incident took place, I am satisfied that the BWC footage was sufficient for the decision maker to determine whether the allegations could substantiated. 
[110]	This is because the events between 17.13 and 17.36 which form the basis of Allegation One took place in an entirely different location and setting within the unit.
[111]	Therefore, I do not agree that the gathering of further witness statements would have provided more credible or sufficient information to dispute the evidence provided in the footage for this period.
[73]	The conclusions drawn by the Industrial Commissioner were open to her and no error of law has been demonstrated.

[74]	Allegation two involved the assertion that the Appellant documented false information in a Riskman Report in relation to the patient.

[75]	The Appellant included the following detail in the Riskman Report:

Pt hostile and yelling verbal threats towards a nurse, Riskman for aggression also completed by the nurse that was abused (RISKMAN...).  Staff removed patient from the area and took pt to his room escorted by security every attempt was made to be least restrictive, his phone was left on him to speak to his wife until it no longer appeared therapeutic, reassurance was provide that staff had no intent pulling his pants down and could provide the IMI without restraint and without touching the pants - to no effect as he identified a trauma hx. (sic).  remained refusing to take meds, has a CIMHA hx of non compliance with taking meds and given extreme escalation needed quick IMI treatment.  Safety response and NIC and another RN all attempted to provide care to patient from 1711-1732 but pt outright refusing to comply. pt restrained on side on bed (was not prone for any amount of time) @ 1732 and IMI delivered and pt was released immediately and safety response were given a sticker for pt details and left.

[76]	The Appellant relied on the passage of time, the incident itself and other stresses in the workplace as an explanation for the inaccuracies in the report.  In her submissions to the Commission, the Appellant argued that she did not intend to mislead her employer, and her recollection of the incident, the subject of the allegations was impaired by adrenaline and shock.

[77]	The Appellant further submits that the Industrial Commissioner "misused" the Appellant's incident time entered into her RiskMan report incident ID 4522683 as evidence that the Appellant wrote the report simultaneously whilst in the room with the patient.  Contrary to the submission, the Industrial Commissioner did not conclude the report was written whilst the Appellant was in the room with the patient.

[78]	The relevant findings by the Industrial Commissioner are set out as follows:

[90] 	Ms Maish maintains she did not intend to mislead her employer noting she was unable to enter the details in Riskman until several hours after the incident.  She also relies on extenuating and stressful circumstances within the ward at the time of the incident as an explanation for the inaccuracies that were included within the report.

[91] 	When examining the content of the report, it can be seen that Ms Maish has recorded the incident time as 17.32.  This was the approximate time that the IMI was administered.

[79]	The Commission had access and viewed the audio and video footage extracted from body-worn cameras of Safety and Response Officers for the period in which it is alleged the Appellant authorised the restraint of a patient and administered the IMI.  The Industrial Commissioner accepted the Respondent's contention that the body worn footage was not consistent with the information recorded by the Appellant within the Riskman Report.

[80]	After assessing the evidence and considering the Appellant's submissions the Industrial Commissioner concluded:

[94] 	The difficulty with Ms Maish's report is the video footage for the period 17.13 until 17.36 depicts events which are very much at odds with the description included in the report.
[95] 	For example, while it may have been the case the patient had refused oral medication in the past, the patient can be heard on at least three occasions during this period expressing a willingness to accept oral medication.
[96] 	Even if that was not the case, the footage shows the patient is not escalating, was not threatening to harm anyone and was engaging in a relatively civil manner with the staff who were present in the room. There is no evidence before the Commission that depicts the patient engaged in 'extreme escalation' such that it would warrant bypassing the first and second stages of the ABDM.
[97] 	Finally, notwithstanding a suggestion by a colleague to administer oral medication, the footage does not support a conclusion Ms Maish considered less restrictive practices during the relevant period.
[98] 	Ms Maish relies on the passage of time, the incident itself and other stresses in the workplace as an explanation for the inaccuracies in the report.
[99]	However, the information included by Ms Maish in the report in respect of the patient's degree of escalation, conduct and refusal to accept oral medication for the nominated period could not be viewed, in any way, as being aligned with the events recorded on the video footage.

[81]	It was open to the Industrial Commissioner to conclude that she was "unable to accept Ms Maish's explanation for the conduct in Allegation Two". 

[82]	No error of law has been demonstrated. 

[83]	Finally, the Appellant raises a broad and unspecified dissatisfaction with the level of consideration given to the evidence by the Industrial Commissioner in her reasons for decision.

[84]	There is a requirement that reasons for judicial decisions must disclose the path of reasoning.  It is well settled that a failure, on the part of a tribunal exercising judicial functions, to give reasons for its decision will constitute an error of law which will permit the decision to be set aside on appeal. However, the "…reasons for decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

[85]	The extent of the reasons required is dependent upon the nature of the application before the court, the matters in issue, the legal principles involved, and the extent of the submissions made by the parties.  The reasons should, at least, be sufficient to enable the party against whom orders are made to appreciate why its case, whether by way of claim or defence, has not succeeded.  In short, the reasons 'are to be understood as recording the steps that were in fact taken in arriving at that result', a failure to state reasons may reveal an error in the process of fact finding.

[86]	In DL v The Queen, the High Court observed:

At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues.  Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion".  At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.  In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.

[87]	The Industrial Commissioner did not address each and every point raised in the hearing before her.  She did not need to.  She considered the relevant evidence which was necessary to determine the questions before her.  The Industrial Commissioner has exposed in her reasons the necessary points critical to the contest between the parties in a manner which enables the parties to identify the basis of the decision and the extent to which their arguments have been understood and accepted.

[88]	It is not a valid ground of appeal that a disappointed party disagrees with the findings below.  As I have pointed out elsewhere, an error of law must be demonstrated and the mere fact that a member of the Commission has preferred some evidence over other evidence is not, on that ground alone, an appealable error.

[89]	No error of law has been demonstrated. 

	Conclusion
[90]	The arguments mounted by the Appellant on this application to appeal are not directed towards establishing any error of law.  Rather, they comprise a litany of complaints about her employer, concerns about the original Public Sector Appeal and the subsequent hearing before the Commission in which she was unsuccessful.  The process in this Court is not to rerun arguments which were mounted below and hope that a different conclusion will emerge.
[91]	In McDonald v Tinbilly Travellers Pty Ltd, Hall P wrote:

The appeal is about whether the Commission erred in law.  Whilst there may be cases in which the chasm between the facts and the decision is so large that this Court will be entitled to infer that there has been an (unidentifiable) error of law, and whilst there will be cases in which this Court will interfere with a factual conclusion on the ground that the process was flawed, a clear distinction has always been maintained between an error of fact and an error of law.  In particular, whilst s. 348 authorises an appellant to roam over the record of proceedings in the Commission to locate and/or demonstrate error of law, the appeal is not by way of a second chance trial, and is not an avenue for testing whether evidence supportive of a particular finding should have been accepted in whole or in part rather than other evidence which led to other conclusions.  In ordinary circumstances, a factual conclusion by the Commission will be respected, save where there is not any evidence to support the conclusion.
[92]	In her decision, the Industrial Commissioner made a clear assessment of the evidence that ultimately informed her decision.  The Industrial Commissioner took into account the relevant statutory considerations and otherwise directed herself correctly on the law.  There is no discernible error in the Commissioner's reasons for finding that the decision of the primary decision maker was fair and reasonable. 
[93]	The appeal is dismissed. 
Suppression Order
[94]	On 4 April 2024 the Respondent filed in the Industrial Registry an Application in Existing Proceedings seeking the following orders:
The State of Queensland (Queensland Health) applies for the suppression of:
1.	The Appellant's submissions in their entirety filed on 23 February 2024; or in the alternative
2.	The name of the patient and the employees of the State of Queensland (Queensland Health) identified in the Appellant's submissions filed on 23 February 2024; or in the alternative 
3.	The name of the patient identified in the Appellant's submissions filed on 23 February 2024.
[95]	The Respondent submits that the Appellant's submissions identify a patent by name and a number of employees of the Health Service by name.  It is contended that both the patient and the employees of MSH fall withing the meaning of the Hospital and Health Boards Act 2011 ('the HHB Act').  It is submitted by the Respondent that by naming the patient and staff, the Appellant has connected the patient to sensitive and personal information which, if released, would cause the patient significant distress and harm.
[96]	The Appellant would, for the purposes of s 139A of the HHB Act be a designated person.  Section 139 of the HHB Act, relevantly defines confidential information to mean information, acquired by a person in the person's capacity as a designated person, from which a person who is receiving or has received a public sector health service could be identified. 
[97]	It is an offence under s 142 of the HHB Act for a designated person to disclose, directly or indirectly, confidential information to another person unless the disclosure is required or permitted under the HHB Act. 
[98]	The Appellant opposes the application but cannot articulate an argument as to why an order ought not be made or how the naming of a patient and co-workers would assist in the disposition of the appeal before the Court.  The Appellant merely submits that "I don't believe in suppression orders" and "I don't think that QHealth should be able to supress anything".

[99]	The starting point in determining an application to supress or withhold the names of those involved in proceedings is the recognition of the fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'.

[100]	However, the rules which govern the open justice principle are not absolute.  Whilst the principles of open justice will require the publication of the names of those involved in proceedings before the Court or the Commission, there are numerous statutory exceptions. 

[101]	In J v L & A Services Pty Ltd (No 2) the Court of Appeal set out the following six principles governing the exercise of discretion to issue suppression orders:

1. 	Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly. 

2. 	The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility … 

3. 	The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected.  Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints.  Legislatures are better equipped than courts to make informed decisions on such matters.

4. 	No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible. 

5. 	Different degrees of restraint are permissible for different purposes.  Although the categories tend to coalesce, they are broadly as follows: 

(a) 	Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information … 

(b) 	A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings. 

(c) 	An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed. 

6.	... [I]information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait.  Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected.  Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public.
[102]	The Respondent's rely on s 580 of the IR Act as a source of power to make the orders sought.  As far as is relevant, s 580 provides:

580 	Confidential material tendered in evidence

	…
(5)	The court, commission or registrar may direct -
(a)	a report, or part of a report, of proceedings in an industrial cause not be published; or
(b)	evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
(6)	The direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the court, commission or registrar.
(7)	The direction may be given if the court, commission or registrar considers -
(a)	disclosure of the matter would not be in the public interest; or
(b) 	persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

(8)	A person must not give as evidence, or publish, material in contravention of this section or of a direction under this section.

[103]	Section 451 of the IR Act bestows general powers on the Commission, and relevantly provides:
Section 451 	General powers
(1)	The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2) 	Without limiting subsection (1), the commission in proceedings may—
…
(c)	make an order it considers appropriate.

[104]	Rule 97 of the IR Rules confers a discretion on the Court, Commission, or Industrial Registrar to, in the public interest or for another reason the Tribunal considers appropriate, withhold publication of a document, or modify a document, before publication, in a way that does not affect the essence of the document.

[105]	The Acts Interpretation Act 1954 defines a document in the following terms:

Document - 

(a) 	means a record of information, however recorded; and 

(b) 	includes - 

(i) 	a thing on which there is writing; and 
(ii) 	a thing on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and 
(iii) 	an electronic document.

[106]	Two practice directions have been issued which have a direct bearing on the consideration of the Respondent's application for suppression. 

[107]	The Practice Directions are premised on the basis that open justice is one of the fundamental principles of our justice system.

[108]	However, Practice Direction 4 of 2023 identifies circumstances where the Tribunal may consider it appropriate, in the public interest or for another reason, to modify a document before publication.  Practice Direction 4 is to be read in conjunction with Practice Direction 3 of 2023.

[109]	For present purposes, Practice Direction 4 relevantly provides the circumstances where the Court may consider it appropriate, in the public interest or for another reason, to modify a document before publication:

(vi)	a patient of any health service facility within the meaning of the Hospitals and Health Boards Act 2011;

…

(x)	a witness or other person mentioned in a proceeding where not releasing identifying information about the witness or person is necessary to secure the proper administration of justice.
[110]	In considering the exercise of the discretion, I am minded that the suppression order is of limited scope relating only to the submissions filed by the Appellant in the Industrial Registry on 23 February 2024.  Further, the Appellant's submissions have been sufficiently ventilated in the proceedings before the Court and in these reasons, all of which are publicly available.
[111]	The identification of the patient and health workers are not directly material to the proper determination of the appeal before the Court.  Moreover, the identification of the patient and health workers is prohibited by operation of the HHB Act.  The fact that the identification by the Appellant of the identity of the patient and health workers may constitute an offence under s 142 of the HHB Act is also relevant to my consideration whether or not to issue the orders sought. 
[112]	I consider that I have sufficient power under the IR Act and the IR Tribunal Rules to make the orders sought.  Accordingly, I grant the application and order that the submissions filed by the Appellant in this Appeal be withheld from release or search absolutely without an order of the Court. 
	Orders
[113]	It is ordered:
1.	The appeal is dismissed.
2.	I direct that the submissions of the Appellant filed on 23 February 2024 be withheld from release or search absolutely without an order of the Court.
3.	The Respondent file and serve upon the Appellant by 4.00 pm Friday 30 August 2024 any written submissions on the costs of the appeal.
4.	The Appellant file and serve upon the Respondent by 4.00 pm Friday 20 September 2024 any written submissions in reply on the costs of the appeal.
5.	Each party have leave to file and serve by 4.00 pm Friday 27 September 2024 any application for leave to make oral submissions as to the costs of the appeal.
6.	In the absence of any application to make oral submissions on the costs of the appeal being filed by 4.00 pm Friday 27 September 2024, the question of costs will be decided on any written submissions filed and without further oral hearing.