| 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 |
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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 |
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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.
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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…
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- Case
- [2016] VSC 626
- Decision Date
CaseChat Overview and Summary
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
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