Ah Choo Teo v Pacific Media Group
[2016] VSC 626
•21 October 2016
| 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 Teo in respect of a complaint made by a member of the public who was treated by Ms Teo. VCAT made orders and published its reasons on 19 December 2014.[2] In early January 2015, Pacific Media published an article in Mandarin Chinese in ‘The Pacific Daily’ entitled ‘Victorian Female Chinese Medicine Practitioner suspended over pig intestine cell treatment,’ and in May 2015, Ms Teo (the plaintiff) sued for damages for defamation and injurious falsehood suffered by reason of that publication.
[2]Chinese Medicine Board of Australia v Teo (Review and Regulation) [2014] VCAT 1587.
The defamation proceeding was, on 14 April 2016, set down for trial before a judge and jury on 21 November 2016.
The plaintiff alleged that the publication, in its ordinary and natural meaning, gave rise to imputations that concerned the administration by the plaintiff of injections of pig intestine cells in her treatment of a person I shall refer to as ‘the notifier’ who was a ‘patient’ of the plaintiff. It is not necessary that I set out these allegations in any detail. Pacific Media, by its defence, did not admit that the publication conveyed the alleged defamatory meanings and asserted a number of positive defences, including justification and statutory justification in respect of some imputations, contextual truth, and fair comment/honest opinion.
On 11 August 2016, Pacific Media served on VCAT a subpoena for the production of documents. Neither the Chinese Medicine Board nor the Australian Health Practitioner Regulation Authority (AHPRA) was notified of the service of the subpoena by anyone. The subpoena sought production of 11 categories of documents that I need not describe in detail as the present application is principally concerned with four documents being:
(a) An affidavit affirmed on 26 July 2012 by the notifier. This affidavit was prepared by the solicitors for the Chinese Medicine Board for the purposes of the VCAT proceeding.
(b) A supplementary affidavit of the notifier affirmed on 22 August 2012 also prepared by the solicitors for the Chinese Medicine Board for the purposes of the VCAT proceeding.
(c) A witness statement of the Executive Officer of the Chinese Medicine Board, Ms Gillick, prepared in January 2013 by the solicitors for the Chinese Medicine Board for the purposes of the VCAT proceeding.
(d) A witness statement of the plaintiff prepared in April 2013 by her solicitors in response to the Chinese Medicine Board’s application to VCAT.
The defendant also sought release from the Harman undertaking with regard to a fifth document, being an agreed statement of facts dated 8 September 2014, prepared by the parties to the VCAT proceeding for the purposes of that matter, and used in the trial of that proceeding.
Each of these documents was produced to this court in answer to the subpoena and inspected by Pacific Media.
On inspection, Pacific Media considered that, subject to being released from any Harman undertaking,[3] there was a proper basis for it to amend its defence to extend its positive justification defence to most of the alleged imputations. Its proposed further amended defence[4] seeks to expand its justification defence in this way. This proposed pleading was changed from the draft submitted in the application that Pacific Media made by its summons filed 19 September 2016, to accommodate criticism made by the plaintiff in submissions that Pacific Media accepted as legitimate.
[3]The obligation imposed by s 27 of the Civil Procedure Act 2010 does not apply by reason of s 4(3) of that Act.
[4]Schedule 4 to the Defendant’s reply submissions.
The plaintiff accepted that the latest form of the proposed amended defence raises an arguable claim of justification that may be capable of meeting the sting of the imputations. She has withdrawn her objection to the form of the pleading while continuing to oppose the application for leave to amend on discretionary grounds. The plaintiff also opposes the defendant’s application that the parties be released from any Harman obligations, which would have the effect if successful and as Pacific Media concedes, that there would not be a proper basis for the amendments.
Background facts
On 13 September 2012, after the Chinese Medicine Board initiated the VCAT proceeding, the Tribunal ordered, inter alia, that:
3. Under s 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal directs that no person other than a party to the proceeding or their legal advisors may inspect the Tribunal file.
4. By 4pm on 9 October 2012 the Applicant is to serve on the respondent any material, upon which it seeks to rely, including its allegations, and statements of evidence of each witness to be called at the hearing.
5. By 4pm on 6 November 2012 the respondent is to serve on the applicant all material, upon which he/ she seeks to rely, including his/her defence to the allegations and statements of evidence of each witness to be called at the hearing.
6. By 4pm on 20 November 2012 the applicant is to serve all material, in reply, on which it seeks to rely.
7. By 4pm on 27 November 2012 the applicant is to serve on the respondent one copy of, and file with the Tribunal three copies of, a Tribunal book being a loose leaf ring folder containing consecutively numbered pages and an index of all material including witness statements upon which each party intends to rely at the hearing.[5]
[5]Bolding in original.
The final hearing of the complaint made by the notifier proceeded by agreement about the relevant facts, the appropriate allegations, and a series of proposed determinations. Consequently, none of the four documents referred to in paragraph 5 above was used in evidence in open court. Paragraph 3 of the order made on 13 September 2012 has not been varied or revoked.
Further, s 34 of the Victorian Civil and Administrative Tribunal Act1998 (VCAT Act) imposes an obligation of secrecy that prohibits a person to whom the section applies, which includes a registrar or other member of staff of the Tribunal, from directly or indirectly making a record of, or disclosing to any person, any information about the affairs of a person acquired in the performance of functions under or in connection with this Act or an enabling enactment. The exemptions contemplate either the consent of the person whose information is to be disclosed or the certification of the Minister and are not relevant in the present case.
Section 36 of the VCAT Act explicitly exempts a registrar or other member of staff of the Tribunal from producing in a court any document that has come into his or her possession; or disclosing to a court any information that has come to his or her notice in the performance of functions under or in connection with the Act or an enabling enactment.
The effect of these provisions is to make the registrars and other administrative officers of VCAT immune to a subpoena for production of documents from the Tribunal’s file unless the statutory exemptions apply.[6] The exemptions provide a statutory context indicative of a significant public interest in maintaining the confidentiality of a Tribunal file and suggest that the proper course for a person wishing to obtain documents filed in the Tribunal is to direct a subpoena to the parties to the proceeding.
[6]I was referred in argument to a decision of J Forrest J in State Trustees Ltd v Edwards [2009] VSC 57 and, in particular, to obiter observations at [29]. However, that case concerned a subpoena served on an administrator of the legal and financial affairs of a person, now deceased, under the Guardianship and Administration Act. The judge was not required to consider the issue that arises in this case.
Notwithstanding both the Tribunal’s order of 13 September 2012 and the provisions of the VCAT Act just discussed, documents were produced to this court by VCAT. The plaintiff’s solicitors did not then object to inspection by Pacific Media of the documents produced in response to the subpoena, subject to reservations expressed about the use of the documents at trial. As I have noted, the Chinese Medicine Board was not aware of the subpoena.
Submissions
Pacific Media submitted that the amendment was necessary for the purpose of determining the real questions in controversy between the parties, any prejudice could be alleviated by conditions as to an adjournment or costs and there were not extraordinary circumstances that would justify refusal of leave to amend. It submitted that the documents that it sought permission to rely on supported its proposed justification defence which was clearly an arguable, if not a strong, defence.
Pacific Media did not dispute that it was aware of the origin of the documents and was bound by the Harman undertaking.[7] It was not contentious that the principles apply in respect of tribunal proceedings[8] and that the obligations extend to affidavits[9] and witness statements.[10] The likely contribution of the five documents to achieving justice in the proceeding, by enabling Pacific Media to justify the principal imputations from the publication alleged to have injured the plaintiff, demonstrated that special circumstances existed that permitted the exercise of the dispensing power in respect of the obligations that limited the use of such documents.
[7]Hearne v Street (2008) 235 CLR 125, 162 [112].
[8]Otter Gold Mines v McDonald (1997) 76 FCR 467.
[9]Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10, 32-3.
[10]Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
Once the plaintiff’s objection to the form of the amendment evaporated by reason of the further adjustment made by Pacific Media to the form of its pleading to more directly meet the sting of the imputations, her objections to the application for leave to amend reduced to three matters. First, there was unexplained delay by Pacific Media in its application for leave to amend that precluded the court from exercising its discretion in a judicial manner. The writ was filed in May 2015 and as the publication followed on VCAT’s decision, it was no secret that the Chinese Medicine Board proceeding would have generated relevant documents. Despite having at least 16 months to investigate whether it could plead justification as it has now done, Pacific Media did not issue its subpoena until August 2016 and its application to amend in September 2016, resulting in this application coming on a mere five weeks prior to the trial date and plainly imperilling that date.
Secondly, that delay would prejudice the plaintiff’s trial date because the plaintiff would contend that the therapies that she administered in fact did not contain pig’s intestine cells. The plaintiff would wish to obtain and lead at trial expert pharmacological evidence to that effect. It was unlikely that such evidence could be obtained and served on Pacific Media within a reasonable time prior to trial even with the benefit of leave granted under a truncated timetable. For its part, Pacific Media could not state whether it would seek to meet such evidence with further expert opinion from another source until it had the opportunity to consider the plaintiff’s expert evidence.
Thirdly, there were not special circumstances that warranted releasing the parties from the Harman undertaking. Consequently there was no proper basis for the amendments and it was not in the interests of justice to permit it. On this ground of objection, the plaintiff was supported by the Chinese Medicine Board.
The Chinese Medicine Board appeared, although not served with the summons, to oppose the defendant’s application that the parties be released from any Harman obligations, essentially on public interest grounds. It is convenient to first deal with this objection.
Release from Harman obligations
In Hearne v Street,[11] Hayne, Heydon and Crennan JJ stated:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
[11](2008) 235 CLR 125, 154-155 [96] (citations omitted).
That substantive obligation arises in this case because the five documents that are the subject of Pacific Media’s application were affidavits, witness statements, and an agreed statement of facts filed in VCAT pursuant to its orders as set out above and were not received into evidence.
Hayne, Heydon and Crennan JJ also stated in Hearne that the importance with which the courts have viewed the obligation is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear.[12]
[12]Ibid, 158-160 [107], following Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37.
In Australian Securities & Investments Commission v Marshall Bell Hawkins Limited,[13] Merkel J observed:
Generally, a party applying for the modification or release of the undertaking should:
· specify the documents in respect of which the modification or release is sought;
· specify the purpose for which the modification or release is sought; and
· satisfy the Court that the special circumstances relied upon by the party warrant or justify the modification or release sought.
The requirements of specificity in respect of the documents to be used and the purpose for which they are to be used is appropriate because the implied undertaking should only be modified or released to the extent that it is in the interests of the administration of justice or in the public interest to do so. Thus, the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest. Further, in determining whether to exercise its discretion to grant the modification or release sought, it will usually be necessary for the Court to identify with precision the documents to be released and the purpose of that release.
[13][2003] FCA 833, [12]–[13] (citations omitted).
Pacific Media has identified the documents and the purpose for which release from a Harman undertaking is sought. What then will constitute special circumstances?
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd,[14] Wilcox J said:
For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[14](1992) 38 FCR 217, 225.
These observations have been cited with approval in many cases.[15]
[15]For example, see Fortis Business Holdings LLC v Commonwealth Bank of Australia [2009] VSC 274, Rowe v Silverstein [2008] VSC 572, Love v Roads Corp [2006] VSC 501, Citicorp Life Insurance Ltd v Lubransky [2005] VSC 101, Playcorp Ltd v Tyco Industries Inc [2000] VSC 440, Nicholls v Hertslet [2016] FCA 655, Construction Forestry Mining and Energy Union (CFMEU) v North Goonyella Coal Mine Pty Ltd [2013] FCA 1444, Re Allco Finance Group Ltd (recs and mgrs apptd) (in liq), Gothard v Fell (2012) 203 FCR 236; , Seeley International Pty Ltd v Cintro Pty Ltd [2011] FCA 712, Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 6) [2010] FCA 1009, Michael Wilson & Partners Ltd v Nicholls [2007] NSWSC 317, Moran v Schwartz Publishing Pty Ltd (No 4) [2015] WASC 328.
Discussion of the relevant considerations
This case, unlike many, is not concerned with the confidentiality of a person’s private documents that are required by law to be produced to a court. The Board is a statutory body and in the performance of its statutory duties investigating and acting on the notifier’s complaint, it created three of the five documents with the fourth document being the plaintiff’s response to the complaint compelled by the statutory processes, and the fifth the agreed statement of facts required by order of the Tribunal. The nature and functions of the Chinese Medicine Board are identified by reference to the legislative scheme that created and regulates it and which also informs a number of the considerations identified in Springfield Nominees.
The Board is a statutory body created by the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law). The National Law includes as one of its purposes the regulation of health practitioners.[16] It provides a process by which health, performance or conduct concerns about health practitioners are identified, investigated and managed. These purposes are protective of the public, and necessary for the integrity of the health system in Victoria. There is clearly a significant public interest in proper processes for consumer protection in respect of the regulation of health practitioners.
[16]National Law, s 3.
Section 31 of the National Law establishes the Board as a National Board that regulates one of 14 different health professions that fall within the jurisdiction of the National Law. The Board’s functions are set out in s 35 of the National Law and include overseeing the receipt, assessment and investigation of notifications of health, performance and/or conduct concerns about registered health practitioners.
Section 216 of the National Law imposes a statutory obligation on a person exercising functions under the National Law to maintain the confidentiality of these files. That section provides that a person exercising a function under the National Law must not disclose “protected information” to another person, unless the disclosure is otherwise required or permitted by law. Protected information is defined at s 214 of the National Law as information that comes to a person’s knowledge in the course of, or because of, the person exercising functions under the National Law.
Section 231 of the National Law requires the Board to maintain files in relation to all registered health practitioners that record a range of information. Relevantly, s 231(e) requires the Board to keep a record of any notification made about a practitioner, together with any investigation and subsequent health, performance or conduct action taken as a result of the notification.
The National Law prevents access to notification material, or any evidence obtained through an investigation, or the Board’s subsequent deliberations about a notification. Plainly, Parliament recognised the sensitive nature of the information in question. The need to protect health information, and the confidentiality of investigations and processes under the National Law are central to the matters in issue in this case.
The National Law imposes significant safeguards on the information provided to AHPRA and the Board in furtherance of its regulatory function. That emphasis on confidentiality is maintained in VCAT, which, as I have noted, ordered the file be kept confidential. These safeguards are necessary and appropriate in light of:
(a) The sensitive information received and dealt with by the Board/AHPRA. The information concerns an individual’s health and treatment information. Such information is afforded a high degree of protection for good reason.
(b) People who seek the protection of the regulatory process under the National Law may be vulnerable insofar as they are individuals who have received health services that they consider to have been in some way inappropriate.
(c) Patients who fear that their personal health information will be available for use outside the complaint itself (particularly in unrelated civil proceedings) may be discouraged from seeking the assistance and protection offered by the National Law.
The public interest therefore strongly favours the maintenance of confidentiality over the documents filed in the VCAT proceeding. It is a factor that weighs in favour of restricting or prohibiting use outside of the VCAT proceeding of the five documents from the VCAT file.
For similar reasons, the information relevant to the investigation by the Board will be confidential. The processes carried out by the Board are subject to a variety of confidentiality protections under the National Law and the VCAT Act. Those protections would be undermined if the Harman undertaking protecting the five documents were modified or released.
Further, the Chinese Medicine Board submitted that the five documents over which a release from the Harman undertaking is sought should be subject to a claim for public interest immunity under s 130 of the Evidence Act2008. The Board submitted that the reasons that would support an immunity claim likewise support a finding that the interests of justice militate against release of those documents from Harman obligations. Although there is not before the court a claim for public interest immunity, there are similarities in the relevant considerations between the discretion exercised at common law in respect of release from a Harman undertaking and the discretion exercised under s 130.
I am satisfied that the Board was denied the opportunity to claim public interest immunity in respect of these documents prior to inspection of them by Pacific Media. It would seem that the opportunity was denied to the Board by administrative error within the VCAT registry. It is unnecessary to consider whether it was appropriate for Pacific Media to seek access to such documents by subpoena directed to a tribunal rather than to the parties to the proceeding before the tribunal. I have some reservations as to whether the process followed is proper, but the issue was not argued before me and I need say no more about it. It is also unnecessary to consider what ought to have been the proper response of VCAT to the subpoena. The milk has been spilt.
Pacific Media recognised that it was bound by Harman obligations and it has substantially preserved the confidentiality of the documents pending this application. By opposing the application that the parties to the defamation proceeding be released from the Harman undertaking, the Chinese Medicine Board is in substantially the same position as it would have been had it been notified of the subpoena and afforded a timely opportunity to apply to have the subpoena set aside or to advance its claim that the documents were immune from inspection.
There is a powerful public interest consideration that favours the release of the parties to the defamation proceeding from the Harman undertaking that may be conveniently illustrated in the context of defamation law by referring to a case concerning the newspaper rule.[17] In John Fairfax & Sons Ltd v Cojuangco,[18] Mason CJ, Wilson, Deane, Toohey and Gaudron JJ stated:[19]
The point is that there is a paramount interest in the administration of justice which requires that cases be tried by courts on the relevant and admissible evidence. This paramount public interest yields only to a superior public interest, such as the public interest in the national security.
The High Court has recognised this paramount interest in the administration of justice in other contexts.[20]
[17]It may be noted that a journalist’s privilege relating to the identity of an informant is regulated by s 126K of the Evidence Act, 2008, which I had occasion to consider in Madafferi v The Age [2015] VSC 687.
[18](1988) 165 CLR 346.
[19]Ibid, 354.
[20]See, for example, in the context of public interest immunity privilege: Sankey v Whitlam (1978) 142 CLR 1.
Pacific Media submitted, with some force, that the public interest in maintaining the notifier’s confidentiality identifiable from the legislative scheme must yield to this paramount interest in permitting a litigant to place all relevant and admissible evidence before the court. Denying it access to the five documents would be detrimental to the integrity of the administration of justice in the defamation proceeding because those documents reveal an arguable basis for a justification defence to the plaintiff’s claim. Further, Pacific Media offered to provide undertakings to the court and to the Chinese Medicine Board to keep the identity of the notifier confidential and not disclose it without leave of the court. It submitted that a trial judge could adequately balance the competing interests by appropriate orders such as, for example, a witness pseudonym order or an order pursuant to the Open Courts Act2013.[21]
[21]Compare the observations of Davies J in Laen Pty Ltd v At the Heads Pty Ltd & Ors [2011] VSC 315, [10] which must be read in the context that there was commonality of subject matter between the two proceedings, which is not this case.
I do not accept Pacific Media’s submission that the VCAT proceeding and the defamation proceeding are closely related in a relevant sense. There are points of commonality between the proceedings including that the plaintiff was the respondent in the VCAT proceeding and the publication on which the defamation proceeding is founded was itself based on the VCAT proceeding.
That said, the critical feature of the five documents that is pertinent to the question of disclosure is that those documents reveal in the allegations made by the notifier highly confidential and personal circumstances and the plaintiff’s response to those allegations that was compelled in the VCAT proceeding. Having regard to the statutory scheme, both the issue of confidentiality for the notifier and the issue of the public interest in confidentiality being maintained for complainants have much wider ramifications than might apply in relation to the private documents of a litigant in the original proceeding.
The agreed statement of facts, while less detailed than the witness statements and affidavits sought, is largely derivative of material found in those other four documents. It was created solely for the purpose of the VCAT proceeding. In any event, much of its content is reflected in VCAT’s reasons for its decision. The likely contribution of this document to achieving justice in the defamation proceeding appears to be low.[22] It is well established that agreed facts of that nature will not be taken to be facts for all purposes.[23]
[22]Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 225.
[23]See ACCC v Pratt (No 3) [2009] FCA 407, [83] (Ryan J): ‘It is no more than a representation by each party to the proceeding that he, she or it will not dispute the asserted fact in that proceeding. In other words, the only representation in the sense used in the definition of ‘admission’ in the Evidence Act is as to the intention or state of mind of the parties to the Agreed Statement.’
Further, Pacific Media obtained knowledge of the content of these documents in what are, for it, serendipitous circumstances. First, it is important to bear in mind that the documents only came into Pacific Media’s possession as a result of its subpoena directed at an earlier process of court-ordered discovery in a different proceeding. Pacific Media would not have known, and had no entitlement to know, of these five documents but for the compulsive provisions of court processes. It did not search for these documents when determining whether it was reasonable to publish the article to which the plaintiff takes offence and it was unaware that the defence of justification that it now seeks to add to the pleadings may be available to it until it inspected the VCAT file. Secondly, VCAT, in breach of its own order and the provisions of the VCAT Act, revealed those documents to Pacific Media, a stranger to the VCAT proceeding. Thirdly, the Chinese Medicine Board, a party to the VCAT proceeding, was not notified of the subpoena nor the claim to inspection of documents that it considered to be protected from disclosure on a number of different bases, as discussed above. These circumstances combined to defeat the confidentiality that complainants, or notifiers, in respect of the conduct of health professionals are entitled to rely upon under the National Law.
It may be recalled that in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd[24] the litigation commenced when a solicitor for one party claimed that a number of documents, the subject of client legal privilege, had inadvertently been disclosed contrary to its clients' instructions. The lawyers for the recipient declined to return the documents and to give an undertaking that was sought, not because it disputed the assertion of inadvertence, but because of its view that any privilege attaching to the documents had been waived. It is trite that a legitimate claim of client legal privilege trumps the paramount interest in permitting a litigant to place all relevant and admissible evidence before the court. Pertinently in the present circumstances, the court observed:[25]
As Lord Diplock observed in Harman v Secretary of State for the Home Department, discovery is a practice peculiar to common law systems, whereby parties to litigation can be compelled to produce to one another, for inspection and copying, all the documents in their possession or control which contain information that may assist another party to advance its own case or to damage the case of the disclosing party. As his Lordship also observed, "[t]he use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself".
Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person's entitlement to maintain the confidentiality of documents where the law allows. It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the documents refuses to do so.
[24](2013) 250 CLR 303.
[25]Ibid, 319 [44]–[45].
As I have noted, here there has not been disclosure of an individual’s own document. Rather, the documents are subject to a greater public interest, a statutory confidentiality scheme that has a purpose of improving the regulation and enforcement of proper standards of competence, conduct and performance by health professionals for the benefit of society. In this case, correction of the mistaken release of the documents by VCAT is a highly persuasive reason not to release the parties from the Harman undertaking.
I am not persuaded that Pacific Media has identified special circumstances justifying the release of these five documents from the Harman undertaking.
Alternatively, were I persuaded that special circumstances had been established, I would not exercise my discretion in favour of release of these five documents for use in the defamation proceeding. In reaching this conclusion I am not simply influenced by the matters that have already been discussed. It is appropriate to have regard to the nature of the documents, four of which are affidavits and witness statements that have not been verified and used in open court or been subject to cross examination. Pacific Media, at this stage of the proceeding, simply, and appropriately, relies on these documents to establish a proper basis for its amendments. What use might be made of the documents at trial is a different question. However, the documents cannot be regarded as proofs of evidence available to Pacific Media to be called at trial.
I have already noted that these documents came into existence for the purposes of the investigation and prosecution of a complaint with serious consequences for the plaintiff as the respondent to that complaint. They are not transactional documents, or documents that were created independently of the statutory processes. Those circumstances created obligations on and opportunities for both the notifier and the plaintiff that were discharged in the context of a statutory confidentiality regime. Thus, the documents reveal information of considerable personal sensitivity. The attitude of Ms Gillick to disclosure of her witness statement is known. She opposes its disclosure. Likewise, the plaintiff opposes disclosure of her witness statement. I have not been explicitly informed of the attitude of the notifier to disclosure of the affidavits, but I would infer, particularly from the notifier’s supplementary affidavit, that consent to disclosure of those affidavits is unlikely to be forthcoming.
I infer that the authors of the documents would sustain prejudice if the documents were disclosed. I have already referred to the prejudice that would be suffered by the Chinese Medicine Board. The statutory scheme that it administers would be compromised if the confidentiality regime on which it is based was subject to the commercial interests of a media organisation in private litigation. It can reasonably be inferred from the notifier’s affidavits that disclosure would be likely to cause significant emotional or psychological distress, the consequences of which cannot be evaluated on the available material. The plaintiff would be prejudiced by exposure to cross examination on a different, and more extensive, basis than would otherwise be the case if Pacific Media was permitted to rely on disclosures that she was compelled to make to protect her ability to practice as a health practitioner.
The plaintiff also submitted that she would be prejudiced by the change in the issues to be resolved in the defamation proceeding and by the need to obtain expert evidence that would cause further delay in the resolution of her trial. I am not persuaded that prejudice in this respect is relevant for two reasons. First, the plaintiff omitted to discover the existence of any document arising out of the VCAT proceeding. Had she done so, it is probable that the issue of access to these documents would have been resolved on an earlier occasion without threat to the trial date. Secondly, that a defendant is able to allege a properly arguable ground of defence is not relevant prejudice.
I have carefully considered all of the matters put to me in both written and oral submissions and on the balance of all of the relevant considerations, I have not been persuaded to exercise the power to modify or dispense with the Harman obligations attaching to these five documents. In the exercise of my office as an acting judicial member of VCAT and in the VCAT proceeding between the Chinese Medicine Board and Ms Teo, leave is refused for the parties in the defamation proceeding to make any use in that proceeding of the documents that have been produced to the Supreme Court by VCAT in response to the subpoena for production to the Prothonotary dated 12 August 2016. Further, subject to any further submission from counsel, I propose to order that within seven days of the order, Pacific Media must:
(a) deliver up all hard copies of the five documents in their possession, custody or power to the solicitors for the Chinese Medicine Board;
(b) delete all electronic copies of the five documents; and
(c) provide written confirmation of compliance with this order to the solicitors for the Chinese Medicine Board.
I will also direct that the Prothonotary return all documents held by the court following production in answer to the subpoena to VCAT.
It follows from the orders that I propose to make in the VCAT proceeding, and as was appropriately acknowledged by counsel for Pacific Media, that in the application made in the Supreme Court proceeding there is not a proper basis for the amendments proposed by the further amended defence that is schedule four to Pacific Media’s reply submissions. Pacific Media is refused leave to further amend its amended defence dated 2 June 2016. It is unnecessary to further consider the remaining submissions advanced in respect of discretionary considerations pertinent to an application for leave to amend that pleading.
I will hear from counsel on the question of costs.
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