CITATION:	Legal Services Commissioner v Reid (No 1) [2017] QCAT 275 	

PARTIES:	Legal Services Commissioner
(Applicant/Appellant)	
	V	
	Shara Louise Reid
(Respondent)
	
APPLICATION NUMBER:	OCR011-16	

MATTER TYPE:	Occupational regulation matters	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Justice Carmody	

DELIVERED ON:	20 July 2017	

DELIVERED AT:	Brisbane 	

ORDERS MADE:	THE TRIBUNAL ORDERS THAT:
1.	The non-publication application is refused.	
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – NON PUBLICATION ORDER – where the Legal Services Commissioner has brought disciplinary proceedings against the respondent – where the respondent has applied for a non-publication order to avoid the process of public accusation unacceptably endangering her mental health – whether a non-publication order is a necessity  – where the respondent tendered three psychiatrist reports  – where the respondent claims giving public oral evidence and cross-examination will lead to deleterious effects – where the commission is entitled to test credibility and find probable facts – where the public interest in the administration of justice is stronger than the practitioner’s privacy –  whether non-publication order appropriate in the circumstances

Legal Profession Act 2007 (Qld) s 656D
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 66

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Legal Services Commissioner v CBD [2011] QCAT 401
Legal Services Commissioner v XBY [2016] QCAT 102
	
APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). 

REASONS FOR DECISION

[1]	The respondent applies for a tribunal order under ss 66(1)(c), (2)(b) of the QCAT Act prohibiting or restricting the publication of identifying information ‘until further order’.
[2]	In other words, she wants to remain anonymous indefinitely.
[3]	The application for the practitioner to remain nameless is based on the asserted need to avoid the process of public accusation unacceptably endangering her mental health. 
[4]	The touchstone for issuing suppression or anonymity orders is necessity not convenience. They are a last, not a first, resort and appropriate only where the aim cannot be effectively achieved in a way that does not involve such a significant departure from the open justice principle.
[5]	It is acknowledged that defending public allegations of shameful professional conduct is distressing. It is sometimes humiliating and can deter witnesses and parties from giving evidence for fear of ridicule or stigma. Even falsely accused presumptively innocent people can become the focus of outrageous media attacks based on rash, unfounded judgements and unfair criticism. Lives can be completely trashed and hard earned reputations ruined beyond redemption by reckless or malicious people expressing baseless opinions about other people and events they know nothing about.
[6]	However, all this has to be tolerated and endured in the name of transparency and accountability. Lawyers who act for public bodies in taxpayer funded roles must expect their professional actions to be scrutinised and to publicly explain and defend them when called upon to do so. Unless that is done in the full glare of publicity, and not under cover of secrecy, community confidence in the integrity of disciplinary procedures will soon be reduced if not lost.
[7]	As Kirby P pointed out in John Fairfax Group Pty Ltd v Local Court of New South Wales:
…an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms.
[8]	The onus is on the practitioner to prove facts and inferences demonstrating the order is necessary. 
[9]	The term “necessary” should not be given a narrow construction. The word necessary describes the connection between the proposed order and the identified purpose; its meaning will depend on the context in which it is used. What is necessary depends on the particular grounds and the circumstances relied on. To establish that an order is necessary, it is not enough that the proposed order appears to be a reasonable or merely beneficial. 
[10]	In the past, the tribunal has made orders in the proposed terms for the same reason.
[11]	In Legal Services Commissioner v XBY, Thomas P, for instance, made an order ‘that information which might enable the practitioner to be identified not be published except to the parties in these proceedings’. The practitioner in XBY admitted professional misconduct for failure to faithfully carry out instructions.  He was suffering from ‘a major depressive disorder with anxiety’. Thomas P noted that, ‘the unchallenged evidence is that publication which identifies the practitioner is likely to significantly negatively impact on the practitioner’s mental health and undo what has been achieved over the past X years to improve his mental health.’ His Honour also took into account of the time that had elapsed since the misconduct.
[12]	A non-publication order was also made unopposed under s 656D Legal Profession Act 2007 (Qld) in Legal Services Commissioner v CBD prohibiting publication of information containing details of the offences the respondent had been convicted of.   The practitioner’s application was: 
…supported by a report from a psychiatrist who says that CBD has a moderate mental disorder with depression and anxiety descending, at some times, to major depression and that the publication of detailed information about the matters which lie behind the discipline application would ‘…raise serious concerns about a deterioration in his psychiatric status, increase the risk of the development of a more severe depressive illness and therefore linked [sic] to an increased risk of suicide’.
[13]	To invoke the protection of s 66(2)(b) QCAT Act the applicant tendered three reports of a psychiatrist, Dr Nandam. Dr Nandam assessed the respondent in April 2016 and twice in July 2017.  She has a diagnosed ‘major depressive disorder’, ‘a significant pre-existing history of anxiety and depression’, ‘an extensive family psychiatric history, including completed suicide’, and ‘is currently experiencing suicidal thoughts without plan to act’. 
[14]	Dr Nandam’s April 2016 report is predominantly concerned with the consequences for the respondent of being a witness. It concludes:
…there remains a high probability of psychiatric deterioration should she be required to attend a hearing or be cross-examined. Any such deterioration would likely to include recurrence of suicidal thoughts, with the potential for completed suicide, particularly when considering the family history. It is also noteworthy that she would be unlikely to provide high quality oral evidence at hearing due to her ongoing symptoms.
[15]	In his latest report Dr Nandam states:
…(the practitioner’s) clinical presentation was unchanged from 13 April 2016. It was of further concern that she was no longer seeing her long term psychologist and was not taking any recognised medication. The lack of evidence based treatment plan renders her of greater vulnerability at this time. I also noted the precarious state of her marriage and significant difficulties with her eldest daughter as additional stressors. 
In my opinion, if (the practitioner) is required to attend a public hearing, give public oral evidence and be cross examined she is highly likely to experience a deterioration or her psychiatric conditions. This would likely include an increase in suicidal thoughts and mental deterioration. It is noted that she has a family history of attempted and completed suicide, and she is currently experiencing suicidal thoughts without plan to act. 
There is also the matter of publication of any adverse findings against (the practitioner).  She has consistently named the stress of publication about her as being a significant factor in exacerbating her psychiatric conditions. Should adverse findings against her be published, they will inevitably become available on the internet, and there will be a high likelihood that this will exacerbate her psychiatric conditions for years to come – even upon the conclusion of the hearing.
It would be of significant benefit to the practitioner’s mental health if she were able to provide evidence in a private hearing and there was some provision for non-publication of any adverse findings against her.
Finally I urged the practitioner to reconsider her treatment options.
[16]	Dr Nandam’s ending remark (almost an afterthought) is that the practitioner would ‘also benefit from not being named with respect to public information relating to the hearing’. 
[17]	In his most recent opinion there is a ‘safe’ level of cross examination for the applicant’s psychiatric health and the available evidence supports that it is highly likely she will deteriorate if cross-examined.
[18]	I accept there is a high risk of public reporting. The practitioner has already been named in the press in connection with earlier inquiries and routinely mentioned in the law list.
[19]	However, the expert reports are overwhelmingly concerned with the likely deleterious effects on the practitioner’s mental health of firstly, being required to attend a public hearing, give public oral evidence and be cross-examined. This is inevitable, irrespective of its unintended side effects. The practitioner is contesting serious allegations. She has deposed to her side of the story. The commission is entitled to test her credibility in the adversarial tradition to help the tribunal find the probable facts and reasonable inferences about her liability to disciplinary action. No application is made to take her evidence behind closed doors. 
[20]	The second major point of interest of the medical opinion is the ‘matter of the publication of any adverse findings’. This is a premature concern. The hearing has not even started yet.  No findings, one way or the other, are imminent.
[21]	Every reasonable fair minded observer of justice in action knows – or should – that in accusatory proceedings like these allegations are not facts until they are substantiated to an exacting standard. They are not proven unless the Commission puts up evidence weighty enough to call for an explanation and often the person whose reputation is at stake has had the chance to answer an impartial tribunal accepts the contrary as probably true.
[22]	As Mr Rice QC, Senior Counsel for the Commissioner points out the anticipated risk is premised on a future event that may never happen.
[23]	XBY and CBD are distinguishable. The charges in either case were not contested as they are here. Those cases related to publication of adverse facts that had been admitted or found and, at least, in CBD, were not opposed.
[24]	Importantly Dr Nandam does not specifically say why the practitioner would benefit medically from not being named in connection with the hearing issues. Neither does he give any reason why an anonymity order is necessary to avoid endangering the practitioner’s mental health as distinct from being beneficial in some unspecified way.
[25]	Moreover, as the practitioner herself points out, her name and nexus within the hearing is already public knowledge. The proceedings have been on foot since early 2016 the application supporting material has been filed and reopened without any secrecy or disclosure restrictions.
[26]	The public interest in the administration of justice is stronger than the practitioner’s privacy and it has not been shown to be displaced by any unacceptable mental health risk or substantial injustice.
[27]	The non-publication application is refused.