Legal Research
Cases
Ah Choo Teo v Pacific Media Group

Ah Choo Teo v Pacific Media Group

Link copied

Case Copied 21 October 2016 27 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2015 01947

AH CHOO TEO	Plaintiff
v
PACIFIC MEDIA GROUP PTY LTD	Defendant

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
REVIEW AND REGULATION LIST

B181/2012

CHINESE MEDICINE BOARD OF AUSTRALIA	Applicant
v
AH CHOO TEO	Respondent

---

JUDGE/ACTING JUDICIAL MEMBER:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2016
DATE OF JUDGMENT:	21 October 2016
CASE MAY BE CITED AS:	Ah Choo Teo v Pacific Media Group
MEDIUM NEUTRAL CITATION:	[2016] VSC 626

---

PRACTICE AND PROCEDURE – Harman obligations/undertaking – Documents obtained on subpoena served on VCAT – Whether parties to a defamation proceeding should be permitted to use documents generated for the investigation and prosecution of a complaint against a health professional in proceedings in VCAT under the Health Profession Regulation Act 2005 – Documents formed the basis for a proposed amendment to allege justification in defence of certain imputations pleaded by the health professional as plaintiff in a defamation proceeding – Whether special circumstances shown – Whether discretionary considerations favour release of documents – Victorian Civil and Administrative Tribunal Act1998, ss 34, 36; Health Profession Regulation Act 2005, s 77; Health Practitioner Regulation National Law (Victoria) Act 2009, ss 3, 31, 35, 214, 216, 231.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P Gilbertson QC	Katherine Moorhouse-Perks Solicitor
For the Defendant	Mr P J Hayes with Mr J C Hooper	Accuro Legal
For the Chinese Medicine Board of Australia	Ms E A Bennett	Victorian Government Solicitors’ Office

HIS HONOUR:

Introduction

I have been appointed by the Chief Justice of Victoria as an acting judicial member of the Victorian Civil and Administrative Tribunal for the purposes of determining an application for release of the parties to a Supreme Court proceeding from any implied undertaking or obligation affecting the use of documents filed in a VCAT proceeding other than in that proceeding (for convenience I will refer to the applicable principles as a Harman undertaking or Harman obligations).[1] In the Supreme Court proceeding, the defendant (Pacific Media) seeks to use documents from the file in a VCAT proceeding obtained by a subpoena for production as part of the factual and legal material available to it to demonstrate a proper basis for an amendment to its defence.
[1]An obligation limiting the use that may be made of documents arising from the circumstances in which the material was generated and received that is commonly, but misleadingly, referred to as an undertaking by reference to the principles derived from Harman v Secretary of State for the Home Department [1983] 1 AC 280. The loose description - an implied undertaking - is commonly used; see Hearne v Street (2008) 235 CLR 125, 155 [97], 158-160 [107].

In the VCAT proceeding, the Chinese Medicine Board of Australia successfully applied for orders under s 77 of the Health Profession Regulation Act 2005 against Ms Ah Choo…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ah Choo Teo v Pacific Media Group and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSC 626
Decision Date: 21 October 2016

CaseChat Overview and Summary

The plaintiff, Dr Teo, brought an action against the defendant, Pacific Media Group, in the County Court of Victoria, alleging defamation. The dispute centred on the admissibility of certain documents obtained through a subpoena served on the Victorian Civil and Administrative Tribunal (VCAT). The defendant sought to use these documents in their defence, claiming they were necessary to establish the justification defence in relation to certain imputations pleaded by Dr Teo as defamatory in the defamation proceeding. The VCAT had obtained these documents in the course of investigating a complaint against Dr Teo under the Health Profession Regulation Act 2005.

The central legal issues before the court were whether the parties to the defamation proceeding should be permitted to use the documents generated for the investigation and prosecution of a complaint against a health professional in proceedings before VCAT and whether special circumstances existed to warrant the disclosure of these documents. Additionally, the court had to consider whether discretionary considerations favoured the release of the documents.

The court held that the documents should not be disclosed to the parties in the defamation proceeding. It was found that the documents were obtained for a specific purpose and under a specific statutory regime, which did not contemplate their use in civil litigation. The court further found that the defendant had not shown special circumstances that would justify the disclosure of the documents. The discretionary considerations did not favour the release of the documents, as the potential prejudice to the complainant outweighed any public interest in disclosure. The court thus exercised its discretion under the Victorian Civil and Administrative Tribunal Act 1998 and the Health Profession Regulation Act 2005 to deny the defendant's application for the release of the documents.

The court ordered that the documents obtained by VCAT remain confidential and should not be used by the parties in the defamation proceeding. The defamation action proceeded without the contested documents, leaving the defendant to pursue other avenues of defence.

Orders