Dinsey v Queensland Building Services Authority
[2012] QCAT 720
| CITATION: | Dinsey v Queensland Building Services Authority [2012] QCAT 720 |
| PARTIES: | Mr Gregory Thomas Dinsey (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | OCR268-11 / OCR289-11 / OCR290-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michael Howe, Member |
| DELIVERED ON: | 13 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for non-publication and closed hearing orders are refused. |
| CATCHWORDS: | PRACTICE AND PROCEDURE - NON-PUBLICATION ORDER - CLOSED HEARING - principle of open justice - confidential documents - standing to bring application for non-publication order - medical expert - expert report - basis of medical report Queensland Building Services Authority Act 1991 (Qld), s 56AC Cutbush v Team Maree Property Service (No.3) [2010] QCATA 89 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Background
Mr Dinsey is a director of three companies which form part of the Cooroy Mountain Group of companies. There are more companies in the Group.
The companies and the Group generally have experienced financial problems. Liquidators were appointed to Wimmers (NSW) Pty Ltd and Cooroy Mountain Services Pty Ltd on 12 June, 2011, and Administrators to Cooroy Mountain Distribution Pty Ltd on 1 September, 2011.
All such appointments have been determined to be relevant company events under s 56AC of the Queensland Building Services Authority Act 1991 by the Authority. Mr Dinsey applied to the Authority to be a permitted individual for those events. The Authority has refused. Mr Dinsey has therefore applied to QCAT for review of that refusal concerning the three companies.
He has also applied in each proceeding for non-publication orders and a closed hearing. That is the matter now before me for determination on the papers.
Mr Dinsey's Case
Mr Dinsey's claim is twofold. First he seeks pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 non-publication orders relating to his name, the companies, and any identifying information that would reveal information about his identity or that of his companies on the grounds that such revelations would endanger his physical or mental health. Second, he seeks pursuant to ss 66(1)(a)-(b) non-publication orders relating to all financial documentation of the companies within the Cooroy Mountain Group and evidence of the financial circumstances of that Group.
Mr Dinsey also seeks closed hearings pursuant to s 90(2) on the same basis.
Initially in reasons filed with the applications for non-publication orders and closed hearings, Mr Dinsey based his claim on the fact that the Cooroy Mountain Group of companies are currently in voluntary administration. He hoped, and I take it still hopes, that the Group will come out of voluntary administration and continue trading. He says information that he proposes to file is very sensitive commercially and could jeopardise this potential recovery.
Mr Dinsey claims he is faced with a "double jeopardy". I take it from that that what he means to say is that he must disclose sensitive company material to succeed. However, without an assurance that he can confidentially disclose the companies' documents with respect to financial administration and the factors concerning the difficulties leading to the relevant events, he risks media exposure, which in turn risks significant damage to the Group’s prospects of recovery.
In submissions subsequently filed on 16 December 2011, the primary focus of the reason he seeks non-publication orders and a closed hearing shifts, or perhaps extends, to that of preventing endangering his physical and mental health. He refers at that stage to a foreshadowed psychiatric report which will show that he has been suicidal and is receiving acute treatment.
Principle of Open Justice
The Tribunal maintains the principle of open justice. It is a fundamental aspect of our legal system and an essential feature of the judicial process.[1] The reason for the principle is that if such proceedings are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, submissions and reasons for judgement, then the public administration of justice is enhanced and confidence in the integrity and independence of the Courts and Tribunals is maintained.[2]
[1]John Fairfax Publications Pty Ltd v Attorney-General for New South Wales [2000] NSWCA 198 at [52].
[2]Russell v Russell [1976] HCA 23 per Gibbs J at [8]; 134 CLR 495; Cutbush v Team Maree Property Service (No.3) [2010] QCATA 89; Hogan v Hinch [2011] HCA 4 at [20] per French CJ.
Not only do holding proceedings in public assist to remove doubts and misapprehensions about the operation of the legal system, it also limits the opportunity for abuse and injustice by those involved in the process by making them publicly accountable.[3]
[3] Seven Network (Operations) Ltd v James Warburton (No.1) [2011] NSWSC 385 at [2].
Perhaps it should also be commented that the perceived rigorous application of these rules contributes to maintaining the standing of justice in our community.
There are only limited exceptions to the principle. The exceptions are set out in the QCAT Act and are relied on by Mr Dinsey in his applications.
The starting point in any such matter must be that proceedings before the Tribunal will be held in public and decisions published unless it is demonstrated that a contrary order is required because it is necessary. “Necessity” is a mandatory criterion.[4]
[4] QCAT Act, s 662(2).
Confidential Documents
By s 66(2)(d) the Tribunal may make a non-publication order only if the Tribunal considers the order is necessary to avoid the publication of confidential information or information whose publication would be contrary to the public interest. Mr Dinsey says he wants to rely upon certain financial and other documents of The Cooroy Mountain Group but they are and should remain confidential.
He says the Cooroy Mountain Group of companies are currently in voluntary administration. I take it that means all of the companies associated with the Group are in some form of voluntary or in-voluntary administration.
Two of the three companies associated with the relevant events have had liquidators appointed. The third, Cooroy Mountain Distribution Pty Ltd, has had an Administrator appointed. The Authority refers to an additional four companies in the Group. Those four companies are evidently also the subject of further relevant event consideration by the Authority. The Authority states that based on information to hand there are numerous unsecured creditors of the companies within the Group, and that they are owed in excess of $10 million. That statement is not controverted by Mr Dinsey.
The Authority maintains the orders sought by Mr Dinsey are too wide. The Authority says Mr Dinsey has not provided any evidence to support his claim that all or any of the financial documents concerning the companies are confidential, nor has he provided any evidence to support his claim that failure to make a non-publication order with respect to financial documents would have a negative impact on any administration process.
I must say that both Mr Dinsey and the Authority are a little indiscriminate with use of the terms company and companies and it is not entirely clear which specific entity is being referred to when the terms are used from time to time, nor indeed whether the reference is to the entire Cooroy Mountain Group of companies or one of the Group.
What the Authority says about Mr Dinsey not providing any particulars of the alleged confidential information, however, about any of the companies, is correct. Mr Dinsey gives no hint as to what the documents could be nor what they concern nor the manner in which revelation would be detrimental.
In his submission filed 16 December 2011, he refers to a non-publication order being sought relating to “all financial documentation of the companies within the Cooroy Mountain Group”. In his submission filed 30 January 2012 however, he appears to limit his claim to “commercial documentation … (pertaining) … entirely to Spring Water soft drink and cordial production and distribution”.
The Authority submits that without particularisation of the documents intended to be covered by a non-publication order, independent evidence to support the purported confidential nature of such documents and any negative impact that may arise in the absence of a non-publication order, the application ought not be considered further on this ground. I think that is right.
The Tribunal may only make a non-publication order if it considers the order is necessary for one of the listed reasons set out in s 66(2). Mr Dinsey is arguing here that the order is necessary to avoid the publication of confidential information. There must be something more than mere assertion on his part as to the confidential nature of documents to enable the Tribunal to satisfy itself as to the necessity requirement.[5]
[5]John Fairfax and Sons Ltd v Police Tribunal of New South Wales and Anor (1986) 5 NSWLR 465 at 476-7 per McHugh JA.
There must be some material before the Tribunal upon which it can reasonably reach the conclusion that it is actually necessary to make an order of the type sought.[6]
[6]Seven Network (Operations) Ltd v James Warburton (No.1) [2011] NSWSC 385 at [3] citing John Fairfax and Sons Ltd v Police Tribunal of New South Wales and Anor (1986) 5 NSWLR 465.
Given the dearth of information supplied by Mr Dinsey concerning the nature of the confidential information alleged, his claim associated with confidential material must fail and the general rule as to open justice apply.
Administration
Under this head of claim I would have an additional problem in any case in acceding to Mr Dinsey's application. It concerns the ownership or right of access to the confidential documents alleged to exist with respect to either the three companies associated with the relevant events or the Cooroy Mountain Group generally.
It seems to be clear that all companies mentioned are in some form of administration. Mr Dinsey says that. Mr Dinsey brings his application on the basis that he is the director of all the companies concerned. Directors of companies in voluntary administration or in liquidation lose control of their company. Given Mr Dinsey has not provided any details concerning the administration arrangements associated with the Cooroy Mountain Group of companies, and certainly taking into consideration that two of the companies associated with relevant events are in liquidation, I question whether Mr Dinsey has the authority to seek the orders he does.
It would appear to me that it would not have been difficult, and indeed a necessity, for Mr Dinsey to obtain and supply statements from the administrators or liquidators concerned, expressing their view with respect to confidential company information and evidencing his authority to be bringing the application he is. Without that Mr Dinsey’s standing to bring the application is more than under a cloud.
Physical or Mental Health
The second string to Mr Dinsey’s bow, however, is that his identity is irretrievably linked to that of his companies, and his identification in these proceedings or his companies’ would adversely affect his mental and physical health. Accordingly he seeks the non-publication and closed hearing orders.
Mr Dinsey has provided a medical report. It is a psychiatric report by Dr John Miles, Psychiatrist, under cover of an undated letter received by the Tribunal on 9 January, 2012. The enclosed report from Dr John Miles, Consultant Psychiatrist (Queensland Health) is also undated and very short. It says this: "This gentleman was first referred to the Sunshine Coast Mental Health Service on the 30th October 2011 and remains under my care. On the basis of my assessment and my knowledge of his profile in the community I feel a tribunal that is public and open to publication would threaten his mental and physical safety. I would therefore strongly support Mr Dinsey’s request for a closed tribunal and a non-publication order which I feel is necessary on the above grounds."
The Authority is unhappy with that report. The Authority maintains there is a paucity of information provided in the report. It does not disclose why or how a public hearing of the three proceedings, or how Mr Dinsey’s identity and the relevant three companies being identified as being involved in the proceedings would be deleterious to Mr Dinsey’s mental or physical safety. The Authority goes on to say there is no evidence that suggests Dr Miles has considered the nature of the present proceedings, or the type of evidence that might be adduced in the proceedings. This is a commercial matter involving corporate collapses that have already occurred and been well publicised.
Mr Dinsey responds to that by saying it is not open to the Authority to undermine the professional opinion of Mr Dinsey’s treating psychiatrist where there is no conflicting medical evidence. Mr Dinsey goes on to submit he is under extreme stress as a result of current events, is receiving acute psychiatric care because he has been and is at risk of suicide and the pressure of publication of his name in relation to the cancellation of his (building) licence would potentially attract much attention which would destroy him.
Need Mr Dinsey do more than simply provide a short report in which an expert medical practitioner states that on the basis of his "assessment" and his knowledge of his patient' s "profile in the community", an open tribunal, also open to publication, would threatened his patient’s mental and physical safety?
What the Authority finds problematical about the report is the lack of any basis for the conclusions and assertions made by Dr Miles.
"… The utility of receiving expert opinions rests in what the trier of fact can make of them. If the assumed facts are not stated, no reasoning process can be stated and the opinion will lack utility; if there is no evidence, called or to be called, capable of supporting the assumed facts, no reasoning process, even if stated, will have utility; and even if there are facts both assumed and capable of being supported by the evidence, they will lack utility if no reasoning process is stated. In each instance, a lack of utility results in irrelevance and inadmissibility.”[7]
[7]Dasreef Pty Ltd v Hawchar [2011] HCA 21 per Heydon J at [133]; McGlen-McLeod v Galloway [2011] NSWDC 163.
Those were the words of his Honour Justice Hayden in the High Court. His Honour had had something similar to say previously when on the bench of the New South Wales Court of Appeal:[8]
64 The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based … 67 One other important aspect of Ramsay v Watson is the following statement at 645: "That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves `Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?' The jury cannot weigh and determine the probabilities for themselves if the expert does not fully expose the reasoning relied on.
[8]Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
Whilst his honour Justice Hayden talked of inadmissibility, there is some debate whether a failure to lay an appropriate basis for expert evidence results in inadmissibility of that evidence or a lessening of the weight to be attached to the evidence to a point where there is such lack of base that it is not to be admitted into evidence.[9]
[9]Freckelton and Selby, “Expert Evidence: Law, Practice, Procedure and Advocacy”, 2002 Law Book Co 2nd Ed citing Steffan v Ruban (1966) 84 WN (Pt1) NSW 264 at 266 and Wilband v The Queen [1967] 2 CCC 6 at 11.
The Authority's complaint goes to lack of basis of the expert evidence, not the expertise of the medical practitioner concerned. According to Dr Miles’ report, Mr Dinsey was referred to him prior to the decision of the Authority to refuse his application to be categorised as a permitted individual. Accordingly, the difficulty prompting him to seek the assistance of Dr Miles might not be attributable to the determination of the Authority concerning categorisation.
Furthermore, one is left in some doubt as to what Dr Miles means by his knowledge of Mr Dinsey’s profile in the community and how that knowledge affected his determination that a non-publication order and open tribunal proceedings would threaten Mr Dinsey's mental and physical safety.
Nor is it clear what Dr Miles means by a threat to Mr Dinsey’s mental and physical safety. In Mr Dinsey's submissions filed 30 January, 2012, Mr Dinsey states that as a fact he is under extreme stress as a result of "current events" and is receiving acute psychiatric care because he has been and is at risk of suicide. He also said in his earlier submission of 16 December 2011 that the (at that stage proposed) psychiatric report would indicate that he had been suicidal as a result of the present matters and related events. Dr Miles does not mention suicide in his report. He refers to the threat to his patient's mental and physical safety, but doesn't elaborate.
As previously stated, the exceptions to the principle of open justice are limited. An order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice.[10]
[10] Seven Network (Operations) Ltd v James Warburton (No.1) [2011] NSWSC 385 at [3].
It is the responsibility of the Tribunal and the Tribunal alone to determine whether the orders sought or either of them are necessary to avoid endangering the physical or mental health of Mr Dinsey such that an exception to the open justice principle should apply. The opinion of an expert is only of assistance in so far as it assists in that task. I am unable to conclude on the limited material filed on behalf of Mr Dinsey, including the report of Dr Miles, that the high evidentiary threshold required to show necessity has been met by Mr Dinsey.
This application for non-publication and closed hearing occurs some eight months after the winding up of two of the companies associated with the relevant events and some five months after the third company was placed into administration. According to Mr Dinsey, the media have taken interest in the outcome of the administration of the companies and it has been first news items on each local television news program when news broke of the companies’ difficulties.
The administration details concerning the three companies associated with relevant events are readily obtainable by members of the public from the Australian Securities and Investments Commission database.
As to identification, the mere fact that the publication may produce embarrassment or unfortunate financial effects is generally not a sufficient reason to prohibit publication, especially where the names have already been published.[11]
[11] Cutbush v Team Maree Property Service (No3) [2010] QCATA 89.
Nothing in Mr Dinsey's submissions or evidence succeeds in persuading me that in the circumstances an exception to the application of the principle of open justice should apply, under any head of claim.
Orders
Accordingly the application for non-publication and closed hearing orders are refused.
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