Kemp v Medical Board of Australia
[2017] VSC 691
•15 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 05179
| DR GEOFFREY KEMP | Appellant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2017 |
DATE OF JUDGMENT: | 15 November 2017 |
CASE MAY BE CITED AS: | Kemp v Medical Board of Australia |
MEDIUM NEUTRAL CITATION: | [2017] VSC 691 |
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JUDICIAL REVIEW - Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 28(2) – Whether a referral to the Victorian Civil and Administrative Tribunal under the National Law is a ‘civil suit action or proceeding’ within the meaning of s 28(2) of the Act – Access to patient’s medical records without consent – Statutory interpretation – Departure from previous decision of a trial judge – Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) – Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Appellant | Mr S Moloney | Ball + Partners Lawyers |
| For the Respondent | Ms A Magee QC with Mr P Cadman | Minter Ellison |
HIS HONOUR:
Introduction
This interlocutory appeal raises an important point: does the statutory privilege afforded to information acquired by a medical practitioner under s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (the Act) extend to the determination of disciplinary charges under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) at the Victorian Civil and Administrative Tribunal (VCAT), or is it confined to court proceedings?
Dr Geoffrey Kemp, the applicant/appellant, is the subject of a number of charges brought by the respondent, the Medical Board of Australia (the Board) in relation to his treatment of three patients; known under the pseudonyms of AS, TH and DK. The National Law provides that the charges will be heard by VCAT. The Board has sought to have the VCAT registrar issue summonses to a number of medical practitioners, including Dr Kemp, to produce the records of those patients.
Dr Kemp contends that, absent consent from his patients, the privilege conferred by s 28 of the Act applies, and the information contained in the records is covered by the statutory privilege and cannot be disclosed. Two of his patients do not consent to disclosure of the information. So, if Dr Kemp’s argument is accepted, a considerable body of the material contained within his and the other medical practitioners’ records relating to the treatment of these patients, will be covered by s 28(2).
The Board argues that the decision of Gillard J of this Court in 2005 in Royal Women’s Hospital v Medical Practitioners Board[1], either as ratio decidendi or as persuasive obiter dicta, means that the privilege is confined to proceedings in a court and not at VCAT. It follows, on this argument, that any documents relating to the treatment of the three patients are amenable to production and can be used at the hearing, if desired. This submission was accepted by the VCAT Senior Member who authorised the registrar to issue the summonses.
[1][2005] VSC 225 (‘RWH’).
There are three interrelated questions which need to be answered:
(a)Is the interpretation of s 28(2) in RWH correct in that the reference to ‘any civil suit action or proceeding’ under s 28(2) is limited to a court proceeding? This question requires an analysis of the wording of the section, the reasoning of Gillard J and whether it is compatible with current principles of statutory interpretation. Moreover, if it is not correct, is the decision clearly wrong so as to warrant not following it?
(b)If the decision or the reasoning underpinning the decision in RWH is not correct, do the disciplinary charges against Dr Kemp fall within the definition of a ‘civil suit action or proceeding’ covered by s 28(2)? If so, the privilege is engaged.
(c)If the decision, or reasoning in RWH is correct, then is a hearing and determination at VCAT of the charges a civil proceeding in a court?
The Evidence (Miscellaneous Provisions ) Act 1958 (Vic)
In its earlier form, s 28 conferred a ‘statutory privilege’[2] on clergymen and medical practitioners. It now only applies to doctors:
[2]Although not described in terms by the legislation as a ‘privilege’, the protection given to a doctor relating to divulging information about a patient has been described this way for many years: see Elliott v Tippett (2008) 20 VR 195, 201.
28 Confessions to doctors
(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.
(3)Where a patient has died, no physician or surgeon shall without the consent of the legal personal representative or spouse of the deceased patient or a child of the deceased patient divulge in any civil suit action or proceeding any information which the physician or surgeon has acquired in attending the patient and which was necessary to enable the physician or surgeon to prescribe or act for the patient.
(4)Subsection (3) shall cease to have any application to or in relation to any civil suit action or proceeding at and from the time at which there is no legal personal representative spouse or child of the deceased patient.
(5)Subsections (2) and (3) do not apply to or in relation to—
(a)an action brought under Part III of the Wrongs Act 1958 to recover damages for the death of the patient;
(b)proceedings brought under the Workers Compensation Act 1958 or the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013 to recover compensation for the death of the patient; or
(c)any civil suit action or proceeding in which the sanity or testamentary capacity of the patient is the matter in dispute.
The phrase ‘civil suit action or proceeding’ is not defined in the Act. However, s 3 defines ‘legal proceeding’ as including:
any civil criminal or mixed proceeding and any inquiry in which evidence is or may be given before any court or person acting judicially including a Royal Commission or Board of Inquiry under the Inquiries Act 2014.
A ‘person acting judicially’ is defined under s 3 to include:
any court judge arbitrator Associate Judge and any person or body having by law or by consent of parties authority to hear receive and examine evidence and any officer in any public department having in the discharge of his duties authority to examine evidence.
The scheme of the National Law
The National Law is a creature of Victorian statute – the Health Practitioner Regulation National Law (Victoria) Act 2009 (the Victorian Act) came into force on 1 July 2010 and, by s 4, adopts the schedule of the cognate Queensland statute[3] which contains the Health Practitioner Regulation National Law (the National Law). The schedule is an appendix to the Victorian Act and is adopted as part of Victorian Law.
[3]Health Practitioner Regulation National Law Act 2009 (Qld).
By s 6 of the Victorian Act, VCAT is declared to be the responsible tribunal for this State to which, by s 35 of the National Law, the Board has a duty to refer matters concerning health practitioners.[4]
[4]National Law, s35(i).
Section 193(1)(d) of the National Law requires the Board to refer to a responsible tribunal — in this case, VCAT — a matter about a registered health practitioner if it reasonably believes that it involves a determination of the question of whether a medical practitioner has engaged in professional misconduct.[5]
[5]National Law, s190.
Professional misconduct is defined by s 5 as including:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Section 194 reads:
The parties to proceedings relating to a matter being heard by a responsible tribunal are—
(a) the registered health practitioner or student who is the subject of the proceedings; and
(b) the National Board that referred the matter to the tribunal
Section 195 reads:
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
The National Law is silent as to the manner in which the referral is heard by the responsible tribunal. That is left up to the responsible tribunal and the legislation governing its operation – in this case, the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act). Under s 196 of the National Law, VCAT has the power to caution or reprimand the practitioner, to impose conditions on the practitioner’s registration and to suspend or cancel the registration.
Circumstances surrounding the referral of Dr Kemp to VCAT
On 12 July 2016 the Board, by letter to the registrar of VCAT[6] and pursuant to s 193(1)(d) of the National Law, referred a number of allegations made by AS, TH and DK, regarding:
(a)Dr Kemp’s prescription of medication for each of the three patients in 2011 and 2012;
(b)Dr Kemp’s clinical management of each of the patients in 2011 and 2012; and
(c)The sufficiency of the medical records retained by Dr Kemp concerning consultations with each of the three patients in 2011 and 2012.
[6]CB 14.
On 19 August 2016, the principal registrar of VCAT, at the request of the Board, issued summonses under s 104 of the VCAT Act for the production of medical records of 12 health practitioners, including those of Dr Kemp in respect of the three patients.[7] Those summonses were not served. The Board accepted that they had lapsed and made an application on 11 October 2016 to VCAT to authorise the issuing of fresh summonses to 10 medical practitioners (including Dr Kemp) concerning the treatment of the three patients. Dr Kemp objected and a VCAT Senior Member heard argument and reserved his determination.
[7]CB 30-41.
Two patients, TH and DK, did not consent to the provision of information contained in their medical records.
On 2 December 2016, the Senior Member ordered as follows:[8]
1. The Tribunal declares that s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 does not apply in this proceeding.
2. The applicant has leave to request that the principal registrar issue fresh witness summons in this proceeding concerning the medical records of Patients 1, 2 and 3 as described in the following reasons.
3. An administrative mention is scheduled for and is proceeding on 19 December 2016, by which date the parties shall advise the Tribunal as to the further steps proposed in this proceeding.
[8]VCAT Order of Senior Member Proctor dated 2 December 2016, CB 50.
Dr Kemp then applied for leave to appeal against the decision of VCAT pursuant to s 148(1)[9] of the VCAT Act.[10] As is now the practice in the Judicial Review and Appeals List in this Court, the application for leave and the substantive hearing were heard together.
[9]See Secretary of theDepartment of Premier and Cabinet v Hulls (1993) 3 VR 331 and Myers v Medical Practitioners Board of Australia [2007] 18 VR 48, 55 [28].
[10]See Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 55 [28].
VCAT has not issued the fresh summonses and awaits the decision of this Court.
The reasons of VCAT
The Tribunal was constituted by Mr Proctor, a Senior Member. Without meaning any disrespect to his considered decision and accompanying reasons, the ruling can be reduced to the following points:
· The decision in RWH held that the statutory privilege only applied in a curial proceeding.[11]
[11][2016] VCAT 2039, [11]-[17] (‘VCAT reasons’).
· VCAT is an independent statutory tribunal and not a court in the strict sense, although it has been held to be a “court for a variety of purposes and not to be a court for a variety of purposes”.[12]
[12]Ibid, [8].
· But for the decision in RWH, the Senior Member would have applied Treverton v Transport Accident Commission[13] and held that s 28(2) applied at VCAT.[14]
· The functions and powers of VCAT (as opposed to its predecessor, the Medical Board, which was considered by Gillard J in RWH), could not be significantly differentiated so as to distinguish VCAT’s role from that of the Medical Board.[15] Therefore, RWH was binding.
· The application by Dr Kemp to prevent the issue of the summonses was dismissed.
[13][1998] VCAT 581 (15 January 1999); (1999) 14 VAR 150 (‘Treverton’).
[14]VCAT reasons, [22].
[15]Ibid, [46].
The proposed grounds of appeal
Dr Kemp’s proposed grounds for appeal (paraphrased somewhat) are as follows:
When determining the question of the proper construction and application of s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 in the proceedings below and whether the Victorian Civil and Administrative Tribunal:
(a)erroneously decided that the question for determination is whether VCAT is a Court;
(b)erroneously decided that s 28(2) only applied to proceedings in a Court;
(c)failed to find that the proceedings below constituted one or all of a ‘civil suit action or proceeding’ within the meaning of s 28(2);
(d)failed to properly consider and apply the meaning of the words ‘legal proceedings’, ‘persons acting judicially’ and ‘court’ in s 3(1) of the Act;
(e)in finding that the proceedings below were a civil proceeding, VCAT was bound to find but erroneously did not find that s 28(2) applied to the proceeding; and
(f)was in error by finding that it was bound by the decision of RWH, and that that decision was not distinguishable when that case was distinguishable from the proceedings below; and
(g)alternatively to sub-paragraph (f) hereof, the decision of RWH was wrong, to the extent that it found that s 28(2) only applies to a curial proceeding, a proceeding pertaining to a court.
I should make one other point here. It was accepted by the parties that any decision by this Court could not operate to preclude the production of the documents sought under the summonses. Rather, if the application and appeal are successful, it remains open to the Board to issue the summonses – however, the documents would, upon production, need to be examined by VCAT to determine which documents (or parts of the documents) were amenable to the privilege under s 28(2).
The decision in RWH
In RWH, a search warrant was obtained by the Medical Practitioners Board of Victoria (the MPBV), from the Magistrates’ Court as part of an investigation by its sub-committee into the termination of a foetus of a patient at the Royal Women’s Hospital (the Hospital). The patient refused to provide consent for the release of her medical records to the Board for the use of the sub-committee.
The Hospital’s records relating to the patient were seized under the warrant and then lodged with the Magistrates’ Court. The Hospital applied for their return relying, inter alia, on s 28(2) of the Act: arguing that, absent consent of the patient (which was not given), the records were subject to the privilege. It contended that the records attracted the statutory privilege as they were to be used in a proceeding within the meaning of the section. A Magistrate rejected the Hospital’s application and ordered the release of the documents to the MPBV. The Hospital then appealed to this Court under s 109 of the Magistrates Court Act 1989 (Vic).
Gillard J, after an extensive - indeed exhaustive - analysis of the legislation and authorities, affirmed the Magistrate’s decision, holding that s 28(2) did not apply to an investigation by the MPBV and dismissed the appeal.[16] This was premised upon the finding that the section was confined to ‘a curial proceeding, that is, a proceeding pertaining to a court and … [due to an express amendment within s 28(2) as it then stood] an investigation by a complaints investigator under the Accident Compensation Act 1985’.[17] There were four bases for this conclusion: the history of the legislation; its statutory context; the decisions of trial judges in this state, particularly that of Oliver Gillard J in Andasteel Constructions Pty Ltd v Taylor;[18] and the history of statutory amendments since 1958.[19]
[16]The alternative ground for the Hospital refusing to produce the records was a claim for public interest immunity which was also rejected by Gillard J. Leave to appeal was granted in relation to that ground and the Court of Appeal dismissed the appeal. See Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22.
[17]RWH, [79].
[18][1964] VR 112 (‘Andasteel’).
[19]RWH, [79].
As to the history of the legislation, Gillard J traced the language of s 28(2) to the Law Evidence Consolidation Act 1857 (Vic). In his Honour’s view, it was appropriate to apply the principle of contemporaneous exposition to the expression ‘any civil suit action or proceeding’. In order to determine the settled meaning of the expression when originally enacted, his Honour considered various statutory versions of the ‘law of evidence’ in the 1840s and the 1850s, and in particular the following:
(i) An Act to make provision for the better Administration of Justice in the colony of Victoria 1852 (15 Vic No. 10):
…no Action Suit or other proceeding at Law or in Equity or any matter or thing whether civil or criminal… or of any other description whatsoever which shall then be depending in the several departments of the Supreme Court of New South Wales …. shall abate.[20]
[20]An Act to make provision for the better Administration of Justice in the colony of Victoria 1852 (15 Vic No. 10), s II.
(ii) An Act for improving the Law of Evidence 1844 (8 Vic No. 1):
…no person offered as a witness, shall hereafter be excluded by reason of incapacity … from giving evidence… or on any enquiry arising in any suit, action or proceeding, civil or criminal, in any court or before any judge jury sheriff coroner Magistrate officer or person having by law or by the consent of the parties authority to hear, receive and examine evidence…[21]
[21]An Act for improving the Law of Evidence 1844 (8 Vic No. 1), sI.
(iii) An Act to amend the Law of Evidence 1852 (16 Vic No. 9):
Whenever any action suit or legal proceeding shall henceforth be pending in any Court in the said Colony, such Court…[22]
[22]An Act to amend the Law of Evidence 1852 (16 Vic No. 9), sI.
(iv) An Act to amend further the Law of Evidence 1854 (17 Vic No. 11):
… in any action suit or other proceeding in any court of justice or before any person having by law or by consent of the parties authority to hear receive and examine evidence the parties thereto and the persons in whose behalf…[23]
[23]An Act to amend further the Law of Evidence 1854 (17 Vic No. 11), sII.
(v) Law of Evidence Consolidation Act (21 Vic No 8):
s. III On the trial of any issue joined or of any matter or question or on an enquiry arising in any suit action or proceeding in any court or before any person having by law or by consent of the parties authority to hear receive and examine evidence…[24]
[24]Law of Evidence Consolidation Act (21 Vic No 8), sIII.
…
s. XVIII. No clergyman of any church or religious denomination shall without the consent of the person making the confession divulge in any suit action or proceeding whether civil or criminal any confession made to him… and no physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding unless the sanity of the patient be the matter in dispute any information…[25]
[25]Law of Evidence Consolidation Act (21 Vic No 8) s XVIII.
His Honour determined that the NSW and Victorian legislatures at this time used the expression ‘suit action or proceeding’ to cover any process in a court of law, and where the intention was that a provision should have applied beyond the court, the legislature stated this intention expressly.[26] His Honour placed importance on the words ‘whether civil and criminal’ in the 1857 provision, as making it clear that the preceding phrase ‘suit action or proceeding’ referred to a proceeding or process in a court of law.[27] In his Honour’s view, this conclusion was reinforced by the earlier legislation, where it was ‘clear that “any civil suit action or proceeding” was a composite phrase to cover any process in a court of law’.[28]
[26]RWH, [55].
[27]Ibid, [57].
[28]Ibid.
His Honour then considered two contextual factors in the Evidence Act 1958, as it then stood (emphasis added):
s24 Parties and husbands and wives may be witnesses
On the trial of any issues joined or of any matter or question or on any inquiry arising in any suit action or proceeding in any court or before any person having by law or by consent of parties authority to hear receive and examine evidence, the parties thereto, and the persons in whose behalf any such suit action or proceeding any information…
s28 Confessions to clergymen and medical men
…
(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985…
His Honour concluded that the language of s 24 reinforced his conclusions as the legislature expressly provided for a situation other than a court of law, and similarly, reference in s 28(2) to an investigation by a complaints officer would have been unnecessary unless Parliament considered the provision to be limited to a court proceeding.
The third factor upon which Gillard J’s analysis was based was the authority of decisions of trial judges in this state concerning the operation of s 28(2). Primarily this involved consideration of the decision in Andasteel, although his Honour acknowledged that the relevant comments of Oliver Gillard J, the trial judge, were obiter. I shall return to these decisions in a moment.
Finally, Gillard J relied upon the re-enactments of the Evidence Act 1958 since Andasteel, to support the proposition that s 28(2) only applied to curial proceedings. The point was that the legislature despite making other changes to the section did not alter the terms of s 28(2) after the decision in Andasteel to enlarge its scope.
His Honour concluded that the operation of s 28(2) was confined to a proceeding in a court (and, as expressly provided for in the legislation at that time, an investigation under the Accident Compensation Act 1985), and that it did not apply to:
an investigation under the Medical Practice Act 1994, nor… would it apply to a hearing conducted by the Board or panel of it, in respect of a complaint made against a registered practitioner.[29]
[29]Ibid, [79].
In my opinion, the relevant ratio decidendi of RWH for the purpose of this case is this: s 28(2) did not apply to an investigation by the MPBV because the provision is limited in its application to proceedings in a court.
Whilst I accept that the decision in RWH is distinguishable on its facts from those of this case the ratio of the decision cannot be avoided: limiting the scope of the availability of the statutory privilege to a court proceeding was an essential part of his Honour’s reasoning in holding that it did not apply in the circumstances of RWH. Whilst it seems clear that it was not necessary for his Honour to go this far (i.e to confine s 28(2) to a court proceeding) as he was only concerned with an investigation by a sub-committee of the MPBV, I do not think that alters the ratio of the decision.
I also note that an application for leave to appeal this part of his Honour’s decision was refused by the Court of Appeal.[30] On that point I think it abundantly clear that whatever the interpretation of the word “proceeding” it does not apply to an investigation by the sub-committee of a disciplinary body - as Gillard J found.
[30](2006) 15 VR 22, 26 [11]-[12].
Other decisions concerning s 28 and its predecessors
A number of cases both before and after RWH have considered the effect of s 28(2). It is unnecessary to refer to all of them, however the following are of relevance.
In Andasteel the plaintiff employer sought to recover compensation paid to the widow of a deceased employee as a result of an industrial accident. Applying s 28 as then enacted (which included a statutory privilege for a clergyman), Oliver Gillard J determined that the evidence of the doctor who had examined the employee shortly prior to his death (and after the accident) was inadmissible. His Honour held that:
(a)First, there was no consent by the parent – the employee. Each part of s 28 is expressed in parallel language. It was intended by the legislature that the person named, and only the person named, should give consent – i.e. the worker, in this case (not his executor) who was the doctor’s patient.
(b)Second, ‘the privilege is a curial one only to be exercised in a court, and having no analogy to a proprietary right existing at large against the world’.[31]
(c)Third, the legislature itself specifically indicated in the past (related medical practitioners (i.e. s 28(2))) the kind of proceedings where the patient’s consent was unnecessary in order to allow the evidence to be given, namely, where the sanity or the testamentary capacity of the patient was in issue. That is expressly the only exception to the statutory privilege.[32]
[31]Ibid, 114.
[32]Ibid (emphasis added).
I think it is clear that his Honour’s observations as to s 28 privilege being a ‘curial one only to be exercised in a court’ were obiter dicta given the issue his Honour was required to determine. Notwithstanding this, the curial limitation held by his Honour to apply to the section has been cited with approval by other Judges of this Court and by judges or members at VCAT and its predecessors. For instance, Elbourne v Troon[33] and Carusi v Housing Commission,[34] both cases concerning the application of s 28 to Supreme Court proceedings but not dealing with the scope of the privilege. Similarly, in Hare v Riley,[35] which as in Andasteel, involved a claim under the Wrongs Act, Norris J determined that an ‘attendance’ in s 28 was not limited to physical attendance, and ‘physician and surgeon’ extended to the provision of para-medical services. Whilst there is reference in both the head-note and the text of the decision to Andasteel, and the application of s 28(2) to court proceedings only, the decision itself deals primarily with the provision of consent – which was the central point in Andasteel.[36]
[33][1978] VR 171 (‘Elbourne’).
[34][1973] VR 215.
[35][1974] VR 577.
[36]Andasteel, [577], [580].
Also, in the former Administrative Appeals Tribunal of Victoria, his Honour Judge Fagan determined that he was bound by Andasteel so that the provisions of s 28 did not apply to a matter litigated in that tribunal.[37]
[37]Gleeson v Transport Accident Commission (1994) 6 VAR 217.
Finally, I should refer to the VCAT decision of Treverton, decided in 1998 and referred to earlier in these reasons.[38]
[38][1998] VCAT 581; (1999) 14 VAR 150; see paragraph [22] above.
Mr Treverton sought review of a determination of the Transport Accident Commission. Relying upon s 80(3) of the VCAT Act, the Commission sought to have certain medical reports produced to VCAT. Section 80(3) provided that:
The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents.
Section 106(1) stated that a person was excluded from answering a question or producing a document in a proceeding if the person could not be compelled to answer the question or produce the document in proceedings in the Supreme Court.
Mr Treverton objected to production of one of the medical reports on the basis of the privilege contained in s 28(2). A preliminary issue that arose was whether s 28(2) applied to a VCAT proceeding. The Tribunal, sitting in its review jurisdiction and constituted by Judge Wood (sitting as a Deputy President) and Deputy President Macnamara, noted the earlier decision of Judge Fagan and authority from the Commonwealth Administrative Appeals Tribunal (AAT) precluding the application of s 28 in that forum, as well as the decisions of Andasteel and Carusi. In contrast to Judge Fagan, the Tribunal did not view Andasteel or Carusi as helpful in resolving the issue:
In the Andasteel case, it was sought to adduce evidence from a treating doctor on the basis of a consent furnished by the personal representative of a deceased person. The personal representative was not a party to the proceedings. It was in that context that Gillard J said that the privilege was curial. He meant that it was not regarded as a right transmissible by will.[39]
[39]Ibid, 8.
The Tribunal held that the proceeding brought by Mr Treverton fell within the expression ‘civil suit action or proceeding’ for the purposes of s 28 of the then Evidence Act 1958. The Tribunal noted that while the expression ‘civil suit action or proceeding’ was not defined, ‘legal proceeding’ was. That definition included, inter alia, circumstances in which evidence may be given before a person acting judicially, indicating that the Evidence Act 1958, as it existed at that time, did not ‘direct itself narrowly to courts in the traditional sense but extended to a wide range of quasi-judicial institutions’. Moreover, the Evidence Act 1958 defined ‘court’ in relation to any legal proceeding as including a ‘person acting judicially’, such that for the purposes of that Act and s 28, VCAT could be considered a court.
Treverton, which is clearly on point (in relation to a VCAT proceeding), is not referred to in RWH, which, of course, concerned whether the privilege extended to a sub-committee of the MPBV.
First Question: Is the privilege conferred by s 28(2) confined to a proceeding ‘in a court’?
If RWH is correctly decided, this question is answered in the affirmative. Of course, Dr Kemp’s case is that it was not, and that current principles of statutory interpretation preclude reading into the section the words ’in a court’ after the word ‘proceeding’. He argues that the word proceeding is well understood and is not qualified in the section and that in context it clearly refers to a legal proceeding but with no further restriction. The only question, so the argument goes, is whether the referral is a proceeding within the meaning of s 28(2) – the second question.
The Board contends that, adopting the reasoning in RWH, the words ‘in a court’ are to be read into the section after the word ‘proceeding’. Therefore, no question of privilege arises.
Principles
The proper approach to the construction of s 28(2) (based upon both statutory provisions[40] and the common law) is set out in well known cases such as Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation,[41] Project Blue Sky Inc v Australian Broadcasting Authority,[42] CIC Insurance Ltd v Bankstown Football Club[43] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[44]
[40]Section 35(a) of the Act Interpretation Act requires that in the interpretation of a provision of the Act the construction of the purpose that would promote the purpose of object underlying the Act, which is to be preferred to construction that would not promote the purpose or object. Section 35(b) of that Act permits consideration to be given to certain extrinsic material including the Second Reading Speech and reports of bodies such as parliamentary commissions and law reform commissions.
[41](1981) 147 CLR 297, 304 and 320.
[42](1998) 194 CLR 355, 381 [69] (‘Project Blue Sky Inc v Australian Broadcasting Authority’).
[43](1997) 187 CLR 384, 408.
[44](2009) 239 CLR 27, 46 [47].
Construction of a statute gives ‘effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision’.[45] In CertainLloyd’s Underwriters v Cross[46] French CJ and Hayne J held:
[45]North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569, 581 citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 (‘Alcan’).
[46](2012) 248 CLR 378 (‘Certain Lloyd’s Underwriters v Cross’).
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ … That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.[47]
Kiefel J said:
The fundamental object of statutory construction is to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole. The starting point for this process of construction is the words of the provision in question read in the context of the statute. Context is also spoken of in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy.
It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit.[48]
[47]Certain Lloyd’s Underwriters v Cross, 388-389, [23]-[24].
[48]Ibid, 411 – 412 [88]-[89].
The Court of Appeal, in this State in adopting these statements of principle, has emphasised the significance of the text of the relevant piece of legislation. Recently it held that the task of statutory construction ‘must begin and end with a consideration of the text itself, and the text must be construed in its context and bearing in mind the legislative purpose of the provisions of the Act’.[49] In Director of Public Prosecution v Walters[50] the Court said:
[49]Secretary to the Department of Justice and Regulation v Century 21 Australia Pty Ltd [2017] VSCA 205, [45]; see also DPP v Thomas [2016] VSCA 237, [16]; (2016) 15 FLR 31, 42 (‘it is axiomatic that the proper construction of s 16A(2)(g) must be anchored in its text and by further reference to its context and purpose’).
[50](2015) 49 VR 356.
Interpreting statutory provisions requires consideration of the legislative context and — where relevant — the legislative history. But, as the High Court has repeatedly emphasised, the task of statutory interpretation begins, and ends, with the words which Parliament has used. For it is through the statutory text that the legislature expresses, and communicates, its intention.
As this Court said in Victoria v Tabcorp Holdings Ltd, there are
powerful reasons of principle for giving primacy to the statutory text. First, the separation of powers requires nothing less. Axiomatically, it is for the Parliament to legislate and for the courts to interpret. Close adherence to the text, and to the natural and ordinary meaning of the words used, avoids the twin dangers of a court ‘constructing its own idea of a desirable policy’, or making ‘some a priori assumption about its purpose’.
Secondly, giving the text its natural and ordinary meaning maximises the comprehensibility and accessibility of statute law, and the accountability of the legislature.
The duty to give primacy to the statutory text has two important corollaries. First, a court construing a statutory provision must strive to give meaning to every word of the provision, and to the provision(s) as a whole. Secondly, except in extremely limited circumstances, the court has no power to fill a gap in a statute or otherwise to read in words which the legislature has not used. The limits of the judicial role require that courts ‘abstain from any course which might have the appearance of judicial legislation’.[51]
[51]Ibid, 358 [2] – [4].
In SM v The Queen[52] Weinberg JA described the approach now adopted toward statutory interpretation, affording ‘greater primacy to the actual language used in the text than to contextual matters’ as a ‘reversion to text’.[53]
[52](2013) 46 VR 464, 477.
[53]Ibid, 477 [49] and [50].
It is undoubted that it is legitimate to refer to the context of a provision to determine its true meaning. In this sense, context ‘imports all legitimate means by which the legislative intent may be ascertained’.[54] It illuminates the question as to what construction is “reasonably open” and includes: the surrounding provisions of the relevant act;[55] the instrument when viewed as a whole;[56] reference to legislative history and extrinsic materials; and, as identified in the excerpts above, the purpose of the provision, particularly the mischief that the provision seeks to remedy.[57]
[54]Director of Public Prosecutions v Leys (2012) 44 VR 1, 32 [94] citing CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384.
[55]DLZ v TAC [2017] VSCA 134, [41].
[56]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381.
[57]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47; see also Colonial Range Pty Ltd v Ces-Queen (Vic) Pty Ltd [2016] VSCA 328, [48] (‘Colonial Range’).
However, reference to legislative history and extrinsic materials cannot displace the meaning of the statutory text. As the High Court said in Federal Commissioner of Taxation v Consolidated Media Holdings:
‘[t]his Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[58]
[58](2012) 250 CLR 503, 519 [39].
Finally, as noted by the Court of Appeal in Colonial Range[59]:
a tension may arise when the court considers that the ordinary meaning of the text is inconsistent with the legislative purpose. As the plurality in Project Blue Sky Inc v Australian Broadcasting Authority explained:
the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
[59][2016] VSCA 328, [52].
The Court of Appeal went on to identify statements of the High Court which have emphasised the primary of text when resolving any perceived tension, namely:
(a) ‘The words of the statute, not non-statutory words seeking to explain them, have paramount significance’.
(b) ‘The task of statutory construction must begin with a consideration of the [statutory] text itself ... The language which has actually been employed in the text of legislation is the surest guide to legislative intention’.
(c) ‘A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions’.[60]
[60]Ibid, [54] (citations omitted).
Application of the principles to interpretation of this provision
It follows from this survey that the starting point in this case must be the text of the section, and then a determination as to whether there is any basis for departing from its terms.
The first, and obvious, proposition is that s 28(2) does not contain any explicit qualification to the word ‘proceeding’. Parliament could have limited its application by the express provision of words such as ‘in a court’ but it did not. The only legitimate implied qualification, I think, is that given the presence of the words ‘action, suit’ and the context of the provision within a piece of legislation governing the adducing of evidence, “the proceeding” spoken of is clearly a ‘legal’ one. So, on its face, the words should be given its ordinary and plain meaning which is that of a legal proceeding.
Therefore, the word “proceeding”, when construed in its ordinary and plain meaning applies to a legal proceeding but is not limited to ‘actions’ or ‘suits’ in a court – rather it means “any…proceeding”. It is correct as the Board submitted that the phrase “civil suit action or proceeding” is composite. But that does not mean that “proceeding” should be given anything other than its plain meaning. To read it down (other than to confine it to a legal proceeding) would be contrary to the authorities I have just set out.
Next, I do not think that the purpose of the statute is frustrated by giving the word its plain meaning in the sense I have just explained. It is well understood that an interpretation that promotes the purpose of the relevant Act is to be preferred over one that does not.[61] A Court needs to be cognisant, however, of avoiding two particular dangers when identifying a statute’s purpose.[62]
[61]Interpretation of Legislation Act 1984 (Vic), s 35.
[62]Certain Lloyd’s Underwriters v Cross, 389 – 390.
One is that the search for legal meaning involves the process of statutory construction, not the ‘discovery of some subjective purpose or intention’:
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’ (emphasis added). And as the plurality went on to say in Project Blue Sky:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[63]
[63]Ibid.
The other is that the making of an a priori assumption about the statute’s purpose is to be avoided.[64]
[64]Ibid 390.
In National Mutual Life Association of Australasia Ltd v Godrich,[65] the High Court considered the application of the predecessor to s 28(2) – s 55 of the Evidence Act 1890 (Vic). It concluded that information acquired was not limited to information communicated by the patient. As to the purpose of the provision, Isaacs J stated:
The purpose of the legislature is manifest on the face of the enactment. It was to prevent, within certain limits, any public tribunal being made the instrument to violate the confidence which a patient has reposed in a physician or surgeon as his medical adviser.
Parliament has not thought fit to enact a general prohibition of disclosure of professional secrets. Outside the walls of the Court a medical man is left to the dictates of his honour, the ethics or rules of his profession, or the force of any compact he may have made with the person who confided in him. And even within the Court itself, where crime is charged, the interests of the public at large are still for obvious reasons thought sufficient to outweigh considerations of medical confidence. But, where individual rights only are in controversy, unless the patient's sanity is the matter in dispute, the State, setting private obligation against private obligation, refuses to be a participant in the breach of a personal trust, probably the result of physical suffering or the fear of death. So much is clear; the evil to be cured unmistakeable, and within the limitations which the legislature has itself marked out, the remedy should be advanced.
The enactment works no abridgment of any substantive right, no invasion of liberty or property, nothing but a regulation of curial procedure to effect a desired reform in the law of evidence for the maintenance of good faith. There is therefore no legal reason to apply a grudging construction, or to place upon the words of the legislature a narrower interpretation than their ordinary sense requires. They should be given their full and fair meaning, nothing less, and nothing more.[66]
[65](1909) 10 CLR 1.
[66]Ibid, 33 – 34 (emphasis added).
The policy behind s 28(2) was also discussed by McGarvie J in PQ v Australian Red Cross Society,[67] the lengthiest civil jury trial in Australia, in which a doctor refused to answer questions regarding the treatment of his patients. Also in issue was s 141 of the Health Services Act 1988 regarding provision of information:
In my opinion, while its operation is not identical, the policy of s141 is similar to that of s28(2) of the Evidence Act 1958 As Gillard J. observed with regard to the latter section in Andasteel … I find no incongruity in the legislature preventing the calling of particular evidence if it has clearly so ordained.
I think that another observation of Gillard J. in relation to that section in that case applies equally to s141. He said, at p. 115: “It may also be urged that by the exclusion of what might be the sole evidence of a person’s medical condition the court might be kept in ignorance of the true facts. While this may be conceded, there is nothing irrational in the result because that is the very purpose of the section - to exclude certain relevant evidence, otherwise admissible. As Higgins, J. said in Godrich’s Case, … ‘No doubt the section is sometimes a hindrance to the establishment of the truth: but so are all the rules which fetter the giving of evidence.’” See also what was said by Barton J. in National Mutual Life Association of Australasia Ltd v Godrich …
I consider that I should not approach the construction of s141 with a view to giving it a narrow and limited operation in order not to interfere with the convenient and full conduct of litigation. It reflects an important social policy which the legislature has adopted to preserve confidentiality to a person who has been a patient in, or has received health services from an institution such as a public hospital. It gives to a person, treated for example in a public hospital, a protection of confidentiality of a somewhat similar nature to that given to a person treated by a medical practitioner in private practice. It should be given its normal meaning: Isaacs J. in Godrich’s Case…[68]
[67][1992] 1 VR 19.
[68]Ibid, 25.
McGarvie J’s comments were referred to by Hollingworth J in Ginnity v Prefsure Life Limited: ‘it seems that the underlying policy behind 28(2) is to preserve confidentiality to a person who has been treated by a doctor’,[69] and also by Beach J in Fitzgerald v Munro.[70] More recently, the public policy considerations in the maintenance of confidentiality were identified by Judd J in Elliott v Tippett:
In my view, s 28(2) does no more than prohibit a medical practitioner divulging certain information in civil proceedings or a prescribed investigation without the consent of the patient. The prohibition may extend to prohibit the practitioner giving evidence or producing documents which contain protected information. What of protected information in the possession of the plaintiff? Does the patient enjoy an immunity from disclosure similar to legal professional privilege? I very much doubt it. The public policy considerations which underpin the protection of confidential communications between legal practitioner and client are, in my view, quite different to those which might justify the maintenance of confidentiality between the medical practitioner and patient.[71]
[69][2007] VSC 284, [13].
[70][1998] VSC 30, [18].
[71](2008) 20 VR 195, 201 [21].
The purpose of s 28(2) therefore is clear: in civil matters, the confidentiality of the communication between doctor and patient are paramount; absent consent of the patient, that information remains privileged. This is consistent with the development in the 20th and 21st Centuries of concepts of privacy and confidentiality in therapeutic relationships as identified in several of the cases I have referred to. In legislation in this State, such concerns are reflected in the Health Records Act 2001 (Vic), the Health Services Act 1988 (Vic), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and, at a Federal level, the Privacy Act 1988 (Cth).
The importance of maintaining the confidentiality of doctor/patient relationship was emphasised in the appeal from the decision of Gillard J in RWH on the issue of public interest immunity. Maxwell P said:
What matters for present purposes, however, is that these are concerns about the importance of maintaining the confidentiality of the patient-doctor relationship. This is a matter of high public importance. The preservation of medical privacy is of concern to the whole community. Appropriately, therefore, as Charles, J.A. has pointed out, the Victorian Parliament has legislated to provide wide – though not unqualified – protection of that confidentiality.
The balancing of the public interest in medical privacy against other, competing, public interests is properly a matter for Parliament. In this regard, I note that one of the stated objects of the Health Records Act 2001 (Vic) is to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information.[72]
[72][2006] 15 VR 22, 36 [58] – [59].
In my view, there is nothing in the purpose of this provision that would cause a Court to confine the word ‘proceeding’ to a Court proceeding; to the contrary I think it equally tenable that it was intended to provide protection of medical information from production in any form of civil legal proceeding unless the patient gives consent.
The end result is that in terms of purpose, there is no good reason to read down the plain text of s 28(2). The goal of the provision is to protect the privacy of the individual patient in a civil proceeding, unless he or she consents to disclosure.
The next point is whether recourse to the legislative history of the section helps in determining the correct construction, noting, as the High Court has said, that ‘legislative history and extrinsic materials cannot displace the meaning of the statutory text’.[73]
[73](2012) 250 CLR 503, 519 [39].
Gillard J spent considerable time and effort analysing the context in which the original legislative provision was enacted and subsequent re–enactments without alteration to the text. I readily accept that this exercise is relevant if there was any doubt as to the text and purpose of the provision. But, with respect to his Honour, as I have endeavoured to explain I see no such doubt or ambiguity. The provision applies to a legal proceeding and, as I see it, the only issue is whether a referral under the National Law is such a proceeding.
It follows that I am also not persuaded that the legislative caveats which existed within s 28(2) in the past excluding the privilege (such as the exception of an Accident Compensation Act 1985 investigation) enable a departure from the plain meaning of the provision.
The Board then argued that this Court should not depart from the interpretation of s 28(2) in RWH as it was long-standing and consistent with earlier decisions as to the meaning of s 28(2) such as Andasteel, Elbourne and Carusi.
Recently in Aubrey v The Queen,[74] the High Court said of this principle:
the Court is ordinarily loath to overturn a long-standing decision about the meaning of a provision unless there is doubt about it, or to depart from the view of judges who, because of proximity in time to the passage of legislation in question, were more aware of the reasons underlying the legislation.[75]
[74]Aubrey v The Queen [2017] HCA 18, [35]; (2017) 343 ALR 538, 549 (‘Aubrey’).
[75]Ibid, 612.
However, the extent to which this proposition holds good was discussed by Wilson and Dawson JJ in Babaniaris v Lutony Fashions Pty Ltd:[76]
[76](1987) 163 CLR 1.
[t]his Court is reluctant to depart from long-standing decisions of State courts upon the construction of State statutes if the meaning is doubtful, particularly where those decisions have been acted on in such a way as to affect rights and obligations ... However, even according judicial status to the decision of the Board in Little and assuming that it has stood for a sufficient length of time, it is a single decision of one tribunal which the Full Court of the relevant State has declined to follow. It cannot, in any event, justify a departure from the plain meaning of the provisions in question. In Hanau v. Ehrlich (1912) AC 39… Earl Loreburn L.C. said at p 41:
If you are to look at the words of this statute without any previous guidance at all, to my mind either construction contended for is possible as a matter of language and pure interpretation of the meaning of language. But I agree with Vaughan Williams L.J. that it is not right for even this House to reopen points of construction upon ambiguous language which have been settled for a long period of years; and I advise your Lordships to decide this case upon that ground. To my mind, when doubtful words in a statute have for a long period been decided in a particular sense, we ought not to reopen the matter if we can help it. The doctrine ’Interest reipublicae ut sit finis litium’ ought in such a case to apply.
Other maxims - stare decisis and communis error facit jus - have been called in aid of this approach … But one thing about it is clear. It has no application where the meaning of a statute is plain and free from ambiguity… If it were otherwise, it would be an invitation to perpetuate an obvious misconstruction of a statute and to disregard the evident intention of the legislature. No line of authority, however longstanding, could justify such a course.[77]
In similar vein, Mason J (with Wilson and Dawson JJ) stated:
The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute… It is no part of a court's function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention…[78]
[77]Ibid, 22 - 23.
[78]Ibid, 13.
I am not persuaded that there is any real value to be allocated to this principle in this exercise. As Hayne and Heydon JJ noted in Shi v Migration Agents Registration Authority:[79]
as this Court has so often emphasised in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes. Expressions used in decided cases to explain the operation of commonly encountered statutory provisions and their application to the facts and circumstances of a particular case may serve only to mask the nature of the task that is presented when those provisions must be applied in another case. That masking effect occurs because attention is focused upon the expression used in the decided cases, not upon the relevant statutory provisions.[80] (emphasis added)
[79](2008) 235 CLR 286.
[80]Ibid 311.
Indeed even if weight is given to this principle I think it is of limited relevance in this case. The initial proposition limiting its operation to a Court was that advanced in Andasteel by Oliver Gillard J (to which I have referred) was patent obiter dicta. It was then specifically applied as part of the ratio in RWH. As I mentioned earlier, none of the other single judge decisions dealt specifically with this point.[81] Indeed, Jenkinson J in Elbourne, cautioned:
Gillard J was addressing his mind to the construction of the subsection in relation to events supervening upon the death of the patient and his observations must in my opinion be considered with that circumstance in mind.[82]
[81]See [39] above.
[82][1978] VR 171, 175.
Moreover, the one decision dealing squarely with the point arising in this case, Treverton, points to a contrary conclusion. It was not considered in RWH, perhaps understandably, as RWH did not involve consideration of VCAT’s role, although it was decided after Andasteel and was directly in conflict with the curial limitation imposed in RWH.
The Board then argued that s 28(2) has been re-enacted or amended on several occasions since the decision in RWH – with no amendment to the expression ‘civil, suit action or proceeding’.
Where legislation is re-enacted after judicial interpretation, it is generally assumed that the legislature has approved the interpretation.[83] In Re Alcan Australia Ltd[84] the High Court stated:
[t]here is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to (them)’ … although the validity of that proposition has been questioned.[85]
[83]Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232, 243 [40] (‘Georgopoulos’); DC Pearce and RS Geddes, Statutory Interpretation in Australia, (LexisNexis, 8th ed, 2014) [3.43] (‘Pearce and Geddes’).
[84](1994) 181 CLR 96.
[85]Ibid, 106 [20].
The principle was recently identified by the Court of Appeal in DLZ v Transport Accident Commission.[86] The Court of Appeal was urged to depart from previous constructions of ‘disability service’ or ‘rehabilitation service’ as those phrases are used in the Transport Accident Act 1986. In rejecting such a departure, the Court of Appeal reasoned:
while the applicant sought to contend that Salcedo was plainly wrong, no error of principle in the decision was identified by the applicant. The applicant, without identifying any actual error, merely asserted that the court in Salcedo had adopted too narrow a construction of the relevant provisions of the Act.
Further, and in any event, Salcedo is a decision that has stood for more than 16 years without it ever having been suggested that it was erroneously decided. Additionally, and of note, the Parliament has amended the Act many times since Salcedo was decided. Considerations of the kind referred to in Thompson v His Honour Judge Byrne, and in this Court’s decision in Starr v Greenfreight (Services) Pty Ltd now militate against any reconsideration of Salcedo at this stage — the Parliament not having sought, in any of the many amending Acts enacted since Salcedo, to amend the definitions of ‘disability service’ and ‘rehabilitation service’ so as to alter their effect as they were construed in Salcedo.[87]
[86][2017] VSCA 134.
[87]Ibid [32] and [33].
Notwithstanding these statements of principle, a statutory construction should not be perpetuated if it is considered erroneous.[88] In Lotus Projects Pty Ltd v Commissioner of State Revenue[89] Croft J recently noted the principle’s limits, including that in most cases it is of minimal weight:
[88]Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159, 174; Georgopoulos, citing Williams v Oataway (2005) 11 VR 529, 540 [20]; see also Starr v Greenfreight (Services) Pty Ltd [2016] VSCA 213 [34].
[89][2017] VSC 63.
Although the ‘re-enactment presumption’ subsists as an aid to statutory construction and has not been overruled, it is of minimal weight in most cases, and is primarily used only to reinforce an interpretation which is reached through the application of other legal principles. Then in Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation, Fullagar J described an argument based on the presumption as ‘a familiar, but somewhat artificial, argument’ which ‘never carries great weight: indeed it can seldom be effectively used except as lending additional support to a view which is already supported by an independent argument’. Dixon CJ expressed similar sentiments in R v Reynhoudt:
In any case the view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of lawmaking no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed.
These observations were endorsed in Flaherty v Girgis by Mason ACJ, Wilson and Dawson JJ, who stated that ‘[f]or the reason given by Dixon CJ, the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct’.
Moreover, it is clear that the ‘re-enactment presumption’ cannot prevail over a correct interpretation of legislation based on the text of the statutory provision in question, construed in accordance with the ordinary principles endorsed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue and subsequent cases. Accordingly, the presumption has no application in cases where the previous judicial interpretation is regarded as incorrect.[90]
[90]Ibid, [58] and [59].
I am not persuaded that the re-enactment presumption has any real work to do in this case. RWH is the only case in which there is a binding ratio on the point and it dealt with the investigation of a sub-committee of the MPBV. Since it was decided, the field has been relatively fallow. It cannot, as Croft J explained, do any more than re-inforce an interpretation that, in this case, is very much in issue.
The next point is the application of the principle, “contemporanea expositio est optima et fortissima in lege”. In RWH it was acknowledged by Gillard J that ‘proceeding’ may have a broad modern meaning,[91] however his Honour held that such a meaning was inappropriate and it was preferable to apply the principle of contemporaneous exposition in the construction of the section.
[91]RWH, [31].
The principle expressed in the maxim holds that the best way to construe a document is to read it as it would have been read when made.[92] According to Pearce and Geddes, use of the principle to its ‘fullest extent has been abandoned except perhaps in the construction of ambiguous language used in very old statutes where the language itself may have had a rather different meaning’.[93] This exception was identified in Babaniaris v Lutony Fashions Pty Ltd,[94] in which Wilson and Dawson JJ stated that ‘some ambiguity or doubt must attend the construction of the statute before the doctrine can have any application’.[95]
[92]Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531, 563 nn 108 (‘Forsyth’); Pearce and Geddes, above n90, [4.9].
[93]Pearce and Geddes, above n90, [4.9].
[94](1987) 163 CLR 1 (‘Babaniaris’).
[95]Ibid, 23 – 24.
For the reasons I have set out I cannot identify the necessary ambiguity or doubt attending the section and therefore doubt the utility of the principle.
However if I am wrong I think a contradictory principle may have greater work to do than that of contemporaneous exposition: legislative provisions may be described as ‘always speaking’ such that the language of the act is adaptable to new circumstances.[96] In this sense, legislation may be described as ‘ambulatory’.[97] In Commissioner of Police v Eaton (NSW), for example, Gageler J remarked: ‘[o]ne principle (reflecting an approach to legislative drafting of very long standing) is that the text of the statute is to be read as speaking continuously in the present’.[98]
[96]Aubrey, 550 [39] and [40].
[97]Pearce and Geddes, above n90, [4.9].
[98](2013) 252 CLR 1, 32 [97]; see also Tabcorp v State of Victoria [2014] VSC 301 [84]; Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd [2017] FCA 14 [58].
In Forsyth v Deputy Commissioner of taxation,[99] however, the High Court referred to a submission that there is a ‘rebuttable presumption’ that legislation is always speaking as ‘apt to mislead’.[100] Rather, the task of statutory interpretation is to ‘discern what is called the intention of the legislature in enacting a specific provision, having regard to its context, scope and purpose’.[101]
[99](2007) 231 CLR 531.
[100]Ibid, 548.
[101]Ibid.
As identified in Forsyth and Babaniaris, whether an ambulatory construction is appropriate depends upon the text and context of the relevant provision. Similarly, in Aubrey the High Court noted that it was the generality of the language that afforded operation of the ‘always speaking’ approach.[102] In that case, at issue was the meaning of ‘infliction of grievous bodily harm’ in s 35 of the Crimes Act 1900 (NSW) and whether the phrase extended to transmission of HIV. The High Court, in finding that it did, stated that the relevant question was whether:
if the Parliament that enacted s 35 in 1900 were appraised of subsequent advances in the understanding of the aetiology and symptomology of infectious diseases, they would have intended that s 35 extend to the reckless transmission of HIV by consensual sexual intercourse...[103]
[102]Aubrey, 551 [40].
[103]Ibid, 550 [38].
In framing the relevant question the High Court cited with approval the comments of Spigelman CJ in Deputy Commissioner of Taxation v Clark:
The Parliament chose to use words of such generality that subsequent developments in the law of corporations, and in particular subsequent statutory amendments, could well change the position in relevant respects....
Statutes may be interpreted on the basis that the connotation of the language remains the same whereas its denotation may differ over time. This approach is of particular significance for constitutional interpretation, but it is not limited to that area.
So the word ‘gas’ was interpreted to include the supply of liquefied petroleum gas, whereas only coal gas would have been in the contemplation of the Parliament at the time the legislation was adopted (originally in the Local Government Act 1906) ... Similarly ‘mining operations’ was extended to encompass a novel technological procedure for bringing subterranean pockets of brine to the surface to produce salt, which procedure was not in use at the time the Income Tax Assessment Act (Cth) was enacted...
Nevertheless, the court will need to be satisfied that the word or words was or were intended to be used in a generic sense in the relevant statute. The words ‘motion picture films’ were found not to have been employed in such a generic sense, and accordingly did not extend to a video cassette, for purposes of the stamp duty legislation.
Where, as here, Parliament has chosen a formulation which is of indeterminate scope and of a high level of generality, a court should interpret the provision on the basis that the intention of the original enactment was that the particular application of the provision may vary over time.[104]
[104](2003) 57 NSWLR 113, 145 [138] – [142], as cited in Aubrey, (2007) 231 CLR 531, 550 [38].
This distinction was noted by the Court of Appeal in Sonnett v The Queen.[105] In that case the applicant submitted that the expression ‘a full opportunity of cross-examining’ should be given an ambulatory construction. The Court of Appeal responded:
[t]here is some force in that submission. The section is expressed in terms of indeterminate scope and at a high level of generality and, generally speaking, textual features of that kind are regarded as indicia of an intention that the application of a section should vary over time. But, as against that, there are also indications that words of the section are to be construed in accordance with their natural meaning at the date of their enactment. The language of the section is ambiguous and is of such antiquity as to have had a meaning at the time of first enactment that is different to what is contended to be its modern denotation.[106]
[105](2010) 30 VR 519.
[106]Ibid, 522 [48].
Here, the phrase ‘any civil suit action or proceeding’ is, I suggest, one of ‘indeterminate scope and high generality’ such that an ambulatory construction is appropriate in preference to the contemporaneous exposition principle. Adopting the analysis of the High Court in Aubrey,[107] the question perhaps can be posed in this way: if the Parliament that enacted s 28 in 1857 was appraised of subsequent advances in the justice system would they have intended ‘civil suit action or proceeding’ to include a proceeding at VCAT? To my mind, the generality of the language used suggests an affirmative answer.
[107]See paragraph [88] above.
Finally, and in my view particularly germane to this question, is the principle the courts should only read words into legislation where it is absolutely necessary. For the provision to be construed as argued by the Board, it is necessary to read the words ‘in a court’ into the section so as to limit the generality of the word ‘proceeding’.
In Wentworth Securities Ltd v Jones[108] Lord Diplock nominated three requirements necessary to read words into a statute; the court:
[108][1980] AC 74.
(a) knows the mischief with which the Act is dealing;
(b) must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved; and
(c) must be able to state with certainty what words Parliament would have used to overcome the omission.[109]
[109]Wentworth Securities v Jones [1980] AC 74, 105 – 106 as paraphrased by McHugh J in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 302.
In Taylor v The Owners – Strata Plan No 11564,[110] French CJ, Crennan and Bell JJ held that these were not rigid rules and that the appropriate analysis is:
Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.[111]
[110](2014) 253 CLR 531 (‘Taylor’).
[111]Ibid, 548 (emphasis added).
The Court then held that it was unnecessary to decide whether the three conditions ‘are always, or even usually, necessary and sufficient’,[112] emphasising that sometimes, the language of a provision will not admit a remedial construction, and even when Lord Diplock’s conditions are satisfied the alteration of the language of the statute may be too far-reaching.[113]
[112]Ibid, 549.
[113]Ibid.
Accepting that the implication of words is ‘a matter of degree’, in my opinion, the reading in of the words ‘in a court’ after the word proceeding is inconsistent with the general language used in the section, and does not meet the tests laid down by either the English or Australian courts. There is no ambiguity; no drafting error; no apparent oversight; no grammatical problem and no manifest error which would defeat the purpose of the section. As Lord Nicholls said in Inco Europe Ltd v First Choice Distribution: ‘[t]he Court must be abundantly sure of the substance, although not necessarily the precise words the legislature would have enacted’.[114]
[114][2000] 2 All ER 109, 115.
Conclusion
So, can it be said that RWH was wrongly decided?
Although not strictly bound, as a matter of judicial comity this court should follow a previous decision unless satisfied that the decision was ‘plainly wrong’.[115]
[115]See La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, 204; Shaw v Yarranova Pty Ltd [2006] 45 [66] – [69]; Commissioner of State Revenue v Challenger [2011] VSCA 272 ALR 504, 565.
As I mentioned earlier[116], I think it clear that notwithstanding the limited question posed by the facts in RWH – namely was the MPBV sub-committee investigation a proceeding within the meaning of the term of a ‘civil suit action or proceeding’ the analysis in RWH and basis for the decision rested upon the proposition that the privilege provided by s 28(2) was confined to a court proceeding.
[116]See [33], above.
For the reasons I have set out and with the greatest of respect to the learned trial judge with vast experience in this area, I have arrived at the necessary conviction that the interpretation of s 28(2) in RWH was erroneous in holding that the privilege was only available in a proceeding in a court. That said, I have no doubt that the ultimate conclusion that an investigation by the sub-committee was not a proceeding within the meaning of s 28(2) was correct.
Second Question: Is a disciplinary referral under the National Law a civil suit action or proceeding under s 28?
The text of s 28(2), referring to a ‘any civil suit action or proceeding’ is manifestly general. As I mentioned earlier, the word ‘proceeding’ should be read in its legal sense[117] and be guided by the surrounding words ‘suit’ and ‘action’,[118] such that it can readily be concluded that what is intended is a type of legal proceeding.
[117]See [57], above.
[118]Noscitur a Sociis, see Pearce and Geddes, above n90, [4.24].
Analysis
Accepting that the word ‘proceeding’ is limited in this way, it is nevertheless a word of wide import. This is evident in the differing use of language in the express definitions within the Act using the word proceeding; for instance ‘legal proceeding’ in s 3 of the Act includes ‘any civil, criminal or mixed proceeding and any inquiry into which evidence is or may be given before any court or person acting judicially.’ Then, a ‘person acting judicially’ has a wide definition which includes ‘any person or body having by law or by consent a party’s authority to hear, receive and examine evidence…’. Moreover, while the definition of ‘legal proceeding’ applies to Division 2A of Part II of the Act which contains s 28, Part IIAA (the witness protection provisions) adopts the following definition of ‘proceeding’:
any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes arbitration.[119]
[119]The Act, s42BA(1).
The structure of s 28 also provides an insight as to its breadth. It is clear that the text of s 28(2) imposes a limit on the breadth of ‘proceeding’ by use of the word ‘civil’. Otherwise, where parliament has chosen to limit which actions, suits or proceedings are intended to fall within the phrase, it has done so by the use of the exceptions contained in s 28(5), such as certain proceedings under the Wrongs Act 1958 (Vic). The construct of the section means that s 28(2) can be read in its ordinary and natural sense, including the breadth of its generality (‘full and fair meaning’ as was said in Godrich), given the intention of parliament to impose any specific limits by the use of s 28(5).
There is nothing in the text of the provision or in the other provisions of the Act that limit its operation to a court or preclude it having effect on a proceeding at VCAT.
The Court of Appeal of Northern Territory in S Kidman & Co Ltd v Lowndes CM[120] said of the expression ‘proceedings’ in the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) :
the potential meaning of the term ‘proceedings’ ranges from any process of a legal nature regardless whether it takes place in a court of law, through to the steps taken in formal court proceedings from commencement to final disposition, including the incidents of a public hearing and the examination of witnesses. Falling somewhere in the middle of that spectrum, the term ‘proceedings’ may be used broadly to denote a method permitted by law in which a judicial officer undertakes an authorised act. That process need not be the conduct of a public hearing which includes the testing of evidence.[121]
[120](2016) 314 FLR 358; [2016] NTCA 5.
[121]Ibid, 368 [39].
Moreover, the manner in which a referral under the National Law is dealt with at VCAT points directly to the conclusion that it is a proceeding within the meaning of s 28(2). I say this for two reasons:
(a)first, the purpose of the National Law in relation to a referral to a responsible authority such as VCAT and the consequences for medical practitioners of that referral; and
(b)second, the functions, powers and processes of VCAT in determining a referral are entirely consistent with what would commonly be regarded as a legal proceeding.
As to the first point, the primary purpose of a referral is to protect the public. VCAT’s powers include that of imposition of fines or suspension from practice. In Craig vthe Medical Board,[122] Doyle CJ of the South Australian Supreme Court said as follows of the powers of medical disciplinary tribunals:
This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner’s departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practise, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for. [123]
[122](2001) 79 SASR 545.
[123]Ibid, 554 – 555, [44]-[48].
The protective powers exercised by VCAT under the National Law are to similar effect. The exercise of such powers is consistent with a legal proceeding which seeks to protect the public in a public and private health setting. This exercise of power, as I will discuss in a moment, is also consistent with the proposition that the tribunal may be acting judicially in exercising such power.
As to the second point, it is stating the obvious to commence with the proposition that VCAT is an administrative body. But that does not mean that when it sits in its original jurisdiction, it does not exercise judicial power. As Weinberg JA said in Director of Housing v Sudi:
There is a considerable body of authority dealing with the extent to which administrative tribunals can be seen to exercise judicial power. For example, in Stockland, it was held that the New South Wales Administrative Decisions Tribunal, not being a court of a State, could not determine whether a particular individual had contravened s 52 of the Trade Practices Act 1974 (Cth). Answering that question, of course, involved the exercise of federal judicial power.
VCAT should be seen as something of a hybrid. When it exercises original jurisdiction, it discharges a function that resembles the exercise of judicial power by a court. It does so, of course, subject to any statutory constraints that are imposed upon it.[124]
[124](2011) 33 VR 559, 595 [207]-[208] (“Sudi”) (citations omitted).
VCAT was established in 1998 and has three divisions – Civil, Administrative and Human Rights. It is headed by a President (who must be a judge of the Supreme Court) and Vice-Presidents who each must be a judge of the County Court. VCAT is also constituted by Deputy Presidents, Senior Members and ordinary Members.[125]
[125]See VCAT Act, Part 2, Div 1.
Litigation at VCAT such as the referral is described as a proceeding. Section 3 of the VCAT Act reads as follows:
“proceeding” means a proceeding in the Tribunal, including—
(a)an inquiry conducted by the Tribunal, including an inquiry under section 141 of the Equal Opportunity Act 2010 ; or
(b)a compulsory conference under section 83; or
(c)a mediation under section 88; or
(d)a rehearing or reassessment under Part 6 of the Guardianship and Administration Act 1986
A VCAT proceeding is constituted by a presiding member who may or may not be a judicial member, and who must disclose any interest in a proceeding.[126] The word ‘proceeding’ is used throughout the VCAT Act to identify a matter within VCAT’s jurisdiction.
[126]Ibid, s 19.
Any member of VCAT has, in the performance of his or her functions as a member, the same protection and immunity as would a judge of the Supreme Court in the performance of his or her duties as a judge.[127]
[127]Ibid, s 143.
A referral under the National Law is brought in the original (Civil) jurisdiction of VCAT.[128] In exercising its original jurisdiction ‘VCAT has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under this Act, the regulations and the rules’.[129]
[128]Ibid, ss 41 and 42.
[129]Ibid, s 44.
VCAT has the power to make orders striking out all (or part) of a proceeding if it considers that the matter would be more appropriately dealt with in a different forum and is empowered, in certain circumstances, to refer any question of law to the Supreme Court or the Court of Appeal.[130]
[130]Ibid, s 96.
VCAT is bound by the rules of natural justice,[131] and although it is not bound by the rules of evidence in the same way as a court, it may ‘adopt’ those ‘rules, practices or procedures.’[132] Hearings are open, except in limited circumstances when the Tribunal can direct that a hearing or part of a hearing be heard in private.[133]
[131]Ibid, s 98(1)(a).
[132]Ibid, s 98(1)(b).
[133]Open Courts Act 2013 (Vic) ss 28 and 30.
VCAT is obliged to act ‘fairly and according to the substantial merits of the case in all proceedings’. It is bound by the rules of natural justice, but not by the rules of evidence or any practices or procedures applicable to courts of record. It may inform itself on any matter as it sees fit, but it must conduct each proceeding with as little formality and technicality as possible. It must also determine each proceeding with as much speed as proper consideration of the matters before it permits.
There are nominated parties to a VCAT proceeding and any person may be joined to or removed as a party to a proceeding.[134] Parties to a proceeding may be represented, albeit in limited circumstances[135] and must be given reasonable opportunity to call or give evidence, examine, cross-examine or re-examine witnesses and make submissions to the Tribunal.[136]
[134]VCAT Act, s 59, s 60.
[135]Ibid, s 62.
[136]Ibid, s 102.
VCAT may hear, admit[137] and examine evidence. It is then incumbent on the presiding member to evaluate and weigh such evidence and determine issues in the proceeding.
[137]Ibid, s 98(2), (2A), (2B).
VCAT has the power to summon witnesses.[138] Evidence is given on oath or affirmation[139] and witnesses can be held to be in contempt, punishable by a term of imprisonment of up to five years.[140] VCAT must give reasons for any order it makes in a proceeding, other than an interim order.[141] These reasons may be oral or written, and if written, the Tribunal must include in those reasons its findings on material questions of fact.[142]
[138]Ibid, s 104.
[139]Ibid, s 102(4).
[140]Ibid, s 137(1) and (5).
[141]Ibid, s 117(1).
[142]Ibid, s 117(5).
Under the National Law VCAT can impose penalties including suspension and cancellation of registration.[143] VCAT also has the power to order costs against parties to the proceeding,[144] although in practice it only does so in limited circumstances.
[143]National Law, s 196(2).
[144]VCAT Act, s 109(2).
A failure to attend a VCAT hearing or to produce documents after being properly served with a summons is punishable by imprisonment or fine.[145]
[145]Ibid s 134(1).
Enforcement of orders made by the Tribunal is done by way of filing, in the appropriate court, a certified copy of the order which is then taken to be an order of the court in which it has been filed and can be enforced accordingly.[146]
[146]VCAT Act, ss121 and 122.
So in the prosecution at VCAT of the charges against Dr Kemp under the National Law:
· The referral identifies the charges against the doctor, with particulars..
· The parties can request that witnesses be summoned by the registrar;
· The hearing takes place before a tribunal constituted by 3 members;
· The parties can seek to be represented;
· The parties must be afforded procedural fairness;
· Evidence is given on oath;
· Witnesses give evidence-in-chief, are cross-examined and re‑examined;
· Witnesses may be held to be in contempt;
· The decision can result in a reprimand, suspension or deregistration of the doctor;
· The reasons for the VCAT decision can be obtained by a party;
· A decision made by VCAT can be the subject of an appeal to the Supreme Court on a matter of law.
When these matters are viewed compositely it is impossible, in my opinion, to reach a conclusion other than that the hearing and determination at VCAT in its original jurisdiction of a referral under the National Law is a legal proceeding and falls within the definition of a “civil action, suit or proceeding” in s 28(2).[147]
[147]Not all VCAT proceedings (as defined by the VCAT Act) would fall within the s 28(2) definition.
To put it less elegantly and in the vernacular – this looks like a civil proceeding and therefore it can be assumed that it is one.
This conclusion is fortified by what was said by the High Court in Medical Board of Victoria v Meyer[148] in which a decision of the Board was, under the Medical Act (1933), able to be appealed to a judge of the Supreme Court sitting in chambers. Much of the discussion in the case focused on whether the judge, in hearing the appeal, was acting in a judicial or an administrative manner and the High Court’s jurisdiction to hear an appeal in those circumstances. For the purpose of this determination, these considerations can be put to one side, although of some interest is the result: the High Court split evenly, and the decision of Lowe J reversing the Board and permitting Dr Meyer to practice in Victoria was affirmed.
[148](1937) 58 CLR 62, (“Meyer”).
The parts of the judgment relevant to this case are the observations of Dixon J relating to the function of the Board in dealing with registration and disciplinary matters. In particular, his Honour said as follows:
Although these duties are entrusted to the board as an administrative body, the board is under the necessity of acting judicially in performing them. In nearly every respect the board’s decision must depend upon determinations of fact as opposed to an exercise of discretion. … In exercising its power to remove or erase a name from the register it must determine as a matter of fact whether the conduct or conditions exposing the practitioner to removal from the Register have been established. Apparently the Board then has a discretion whether it will remove or erase his name. But that discretion which must depend upon the nature and seriousness of the case is of a judicial description. In judging whether an applicant for registration is of good character, the board is dealing with an indefinite or vague standard, but nevertheless it is a matter of fact to be determined judicially. Except that a particular discretion given by par 13 of the Schedule, there is in my opinion nothing in the board’s decision which might not be determined as an exercise of judicial power, if the legislature had thought proper to confide its determination to the courts in the first instance. In other words a person seeking registration or resisting removal from the register is asserting a right depending upon the existence of facts that fulfil conditions prescribed by law and the determination and enforcement of such a right in a thing not necessarily falling outside judicial power.[149]
[149](1937) CLR 62, 91 – 92 (emphasis added).
It is not necessary, for the purpose of this exercise, to say anything more about the powers that might be exercised by VCAT or its predecessor, the MPBV. What is to the point is the recognition that a referral under the National Law deals with the rights and responsibilities of a practitioner which are determined in the way set out by the VCAT Act. All of this points to a referral being a proceeding within the meaning of s 28(2).
I reach this conclusion without recourse to the definitions within the Act, which support this proposition as discussed in Treverton[150]. As I mentioned earlier VCAT, in hearing and determining a charge under the National Law is “acting judicially” within the meaning of s 3 of the Act[151] - it has legislative permission to “hear receive and examine evidence”. It therefore falls within the definition of a “legal proceeding” contained in the Act. Whilst this is not the exact wording of s 28(2) (i.e. the word legal is omitted), it assists in determining that the referral is indeed a proceeding.
[150][1998] VCAT 581.
[151]See paragraphs [7] and [8], above.
I do not accept, as argued by the Board, that the fact that the precise expression “legal proceeding” is not used in s 28(2) militates against the conclusion that a referral is a proceeding. I repeat that the exercise is determining whether a referral falls within that definition.
For what it is worth, my conclusion as to the characterisation of a referral is fortified by reference to the National Law which, by ss 193, 194 and 195, describe the conduct of a referral as a proceeding.[152]
[152]Health Practitioner Regulation National Law Act 2009 (Qld), ss 193 – 195.
The only consideration of any real force against this proposition is that the purpose of the National Law in terms of protecting the public is potentially frustrated by this interpretation. Or, to put it practically: if a medical practitioner is able to rely upon s 28(2) to prevent access to records relevant (or in some cases, central) to the prosecution of a disciplinary proceeding against the practitioner then the word proceeding must be read down so as to limit its application so as to permit the Board to obtain documents covered by the privilege in a disciplinary proceeding.
The problem, as I see it, with this proposition is that such a construction conflicts with the evident purpose of s 28 and its importance in maintaining doctor/patient confidentiality. These inherent tensions reflect two legitimate public policy concerns that were considered in the appeal in Royal Women’s Hospital v Medical Practitioners Board of Victoria[153], and discussed earlier. And here, the legislature has, subject to nominated exceptions, given primacy to privacy.
[153](2006) 15 VR 22, [56] – [67].
It also should be remembered that adopting the construction I prefer does not shut the Board out from accessing the documents, provided it has the consent of the patient.
Conclusion
In summary, to allow s 28 to apply in a VCAT proceeding promotes the purpose of the provision, that is, the protection of a patient’s information. This ordinary and natural sense of the word, having regard to the purpose of the provision, should prevail over any concerns of public policy or inconsistency with the National Law.
There is one final matter I should refer to and it appears from the reasoning of the Tribunal in applying the decision in RWH in permitting the issue of the summonses. The Senior Member held there was no material difference between the functions and powers of the MPBV as opposed to its successor, VCAT. For two reasons I differ with that view. First, Gillard J in RWH was not concerned with a Medical Board hearing. Rather, it was the issue of a subpoena in the Magistrates’ Court for the purpose of informing an investigation by the sub-committee of the MPBV, presumably to enable MPBV to determine whether to charge a medical practitioner. Secondly, with respect, the decision in Meyer underscores the proposition that both the Board and VCAT may be acting judicially in the determination of a disciplinary charge under a relevant piece of legislation.
The end result is that I consider that the referral of Dr Kemp under the National Law to be a proceeding within the meaning of s 28(2) of the Act.
Third question: Is a referral to VCAT under the National Law a civil proceeding in a court?
Given my conclusion as to the reasoning in RWH and my answer to the second question, it is unnecessary to answer this question. If it was necessary I would have been bound to follow the decision of the Court of Appeal in Sudi which held that VCAT is not a court albeit that some of its powers and functions resemble those of a Court and, at times, its actions may involve the exercise of judicial power[154] .
[154]Sudi, [29] Warren CJ and [182]-[202] Weinberg JA.
Conclusion and orders
Dr Kemp should be granted leave to appeal the decision of VCAT of 2 December 2016 and the appeal should be allowed. Order 1 of the orders of the Senior Member should be set aside. However, it is inappropriate to set aside Order 2 as there is no dispute that the summonses can be issued by the Senior Registrar. The subsequent determination by VCAT as to the release to the Board of information obtained as a result of the summonses, must abide these reasons. I will leave it to the parties to endeavour to formulate the appropriate orders.
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