Medical Board of Australia v Kemp

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0132

MEDICAL BOARD OF AUSTRALIA	Applicant
v
DR GEOFFREY KEMP	Respondent

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JUDGES:	MAXWELL P, TATE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2018
DATE OF JUDGMENT:	29 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 168
JUDGMENT APPEALED FROM:	[2017] VSC 691 (J Forrest J)

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MEDICAL PRACTITIONERS – Investigations – Medical Board of Australia – Professional misconduct – Referral to VCAT – Summons for production of medical records – Production resisted by practitioner – Whether covered by statutory privilege against disclosure – No privilege – Appeal allowed – Evidence (Miscellaneous Provisions) Act 1958 s 28(2) – Health Practitioner Regulation National Law (Victoria) Act 2009.

EVIDENCE – Privilege – Medical privilege – Medical records – Statutory privilege against production in ‘civil suit action or proceeding’ – Regulatory proceeding in VCAT – Nature of proceeding – Whether proceeding constitutes a ‘civil suit action or proceeding’ – No adjudication of private rights – Privilege not applicable – Appeal allowed – Royal Women’s Hospital v Medical Practitioners Board (Vic) [2005] VSC 225 considered – Evidence (Miscellaneous Provisions) Act 1958 s 28(2) – Health Practitioner Regulation National Law (Victoria) Act 2009.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J D Pizer QC with Mr M Hosking	Minter Ellison
For the Respondent	Mr S J Moloney	Ball + Partners

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Niall JA. I agree with the disposition of the application which his Honour proposes, for the reasons which he gives.

TATE JA:

I have had the benefit of reading the judgment, in draft form, of Niall JA. I agree, for the reasons his Honour gives, that leave to appeal should be granted and the appeal allowed.

NIALL JA:

Introduction and summary

Three patients of the respondent, Dr Geoffrey Kemp, complained about his conduct to the Medical Board of Australia (‘Board’). The Board believed that the doctor’s conduct may amount to professional misconduct and has referred the matter to the Victorian Civil and Administrative Tribunal (‘VCAT’) pursuant to its statutory powers. On the request of the Board, VCAT issued summonses to Dr Kemp and 11 other health practitioners who had treated the patients, requiring the production of medical records. The Board contends the medical records are necessary for it to be able to present its case of misconduct before VCAT. Two of the patients have refused to give their consent to the production of the medical records. A judge of the Trial Division held that, in the absence of consent, the medical practitioners could not be required to produce the records in response to the summonses.

Section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (‘EMP Act’) provides that a doctor shall not, without the consent of his or her patient, divulge in ‘any civil suit action or proceeding’ any information which the doctor has acquired

in attending the patient and which was necessary to enable the doctor to prescribe or act for the patient.

The question in this application for leave to appeal is whether a disciplinary proceeding in VCAT brought against a doctor is a ‘civil proceeding’ within the meaning of s 28(2).

The judge in the Trial Division, J Forrest J, concluded that the VCAT proceeding is a civil proceeding and that s 28(2) applies, with the consequence that VCAT could not give the Board access to documents summonsed from health practitioners without the consent of the relevant patients. By contrast, in Royal Women’s Hospital v Medical Practitioners Board (Vic) (‘RWH’),[1] Gillard J concluded that s 28(2) only applies to a civil proceeding in a court, that VCAT was not a court for that purpose, and that s 28(2) therefore had no relevant application.
[1][2005] VSC 225.

On the present application for leave, the Board did not seek to uphold the conclusions of Gillard J but put a different construction, namely that s 28(2) does not apply to disciplinary proceedings because it only applies to proceedings that are brought for the benefit of the applicant who commences them. It contended that s 28(2) had no application in the circumstances of this case because the VCAT proceedings were not brought for the benefit of the Board but in the public interest.

Given the importance of the question and the divergent views on it within the Trial Division, I would grant leave to appeal.

In my view, the hearing and determination by VCAT of a matter referred by the Board is not a civil suit, action or proceeding within the meaning of s 28(2). That is because it is regulatory in nature, heard by an administrative tribunal that is not bound by the rules of evidence, is brought for a public purpose, and does not involve the inter partes determination of private rights.

In determining the proper construction of s 28(2), and whether a putative proceeding falls within it, it is necessary, in my view, to have regard to a range of factors, and, at the margin, none of them may necessarily be determinative. It would not follow, for example, that a proceeding in a court which is brought in the public interest, such as a civil penalty proceeding, would fall outside the scope of s 28(2) merely because it does not involve the inter partes determination of private rights. The construction that I favour is supported by the following considerations, with which I will deal in turn in my reasons:

(a) the text of the provision, in which the meaning of ‘proceeding’ is limited by the word ‘civil,’ takes its complexion from its collocation with ‘suit’ and ‘action’, and is apt to describe a process for the inter partes determination of rights that is curial in nature;

(b) the purpose of the provision is to prescribe a rule of evidence to protect medical confidence in a limited context but does not confer substantive rights on the patient. Unlike the primary judge, I do not consider that the protection of medical confidence is paramount;

(c) legislative history, and earlier decisions of the Court, support confining the operation of the provision to a curial setting; and

(d) the consequences of denying access to medical records in a regulatory setting make a broader construction improbable.

I have not been persuaded to accept the Board’s unalloyed submission that s 28(2) only applies to a proceeding that is brought to secure a remedy for the benefit of the party bringing the proceeding. In my view, that construction is too uncertain, and would exclude from the operation of the provision many proceedings in a court which, even on their narrowest conception, would fall within the words ‘civil suit action or proceeding’.

I have found the decision of Gillard J in RWH instructive. Although I do not agree that s 28(2) is confined in its operation to court proceedings, I have concluded that the phrase ‘civil suit action or proceeding’ describes a process that engages a type of function, namely the curial adjudication of private rights, but not one necessarily confined to courts.

The facts

The facts may be briefly stated for the purpose of exposing the question of construction that presently arises.

Dr Kemp is a medical practitioner registered under the Health Practitioner Regulation National Law (‘National Law’). Three of his patients (‘DK’, ‘TH’ and ‘AS’) made notifications to the Board about his conduct. The details of those notifications are not presently important; it is sufficient to note that they related to Dr Kemp’s prescription of medication, his clinical management, and the sufficiency of medical records kept by him.

Following those notifications, the Board referred a matter to VCAT under s 193(1)(d) of the National Law on the basis that it reasonably believed that Dr Kemp had behaved in a way that constituted professional misconduct.

On 10 August 2016, the Board applied for a directions hearing at VCAT and foreshadowed an intention to summons certain medical records. The Board sought a summons directed to Dr Kemp requiring production of all medical records, including but not limited to all clinical notes, referral letters and prescribing records between certain dates in respect of DK, TH and AS.

The Board also sought the issue of summonses to 11 named health practitioners for the production of medical records relating to DK.

It appears that, in addition to making a complaint about the conduct of Dr Kemp, two of the patients, DK and TH, completed and provided to the Board a document titled ‘Consent authorisation form A’ by which they consented to the Board, amongst other things, accessing information, including health records, relating to their notifications. Subsequently, VCAT was informed that DK and TH had withdrawn their consent.

On 19 August 2016, the principal registrar of VCAT, at the request of the Board, issued summonses under s 104 of the Victorian Civil and Administrative Tribunal Act 1999 (‘VCAT Act’) for the production of medical records. Those summonses lapsed before they were served. Subsequently, the Board sought to have them re-issued.

Dr Kemp opposed leave to re-issue the summonses on the basis that s 28(2) applied. On 2 December 2016, following a contested hearing, a senior member of VCAT held that s 28(2) did not apply in the proceeding and gave leave to the Board to request the principal registrar to issue the summonses in question.[2] In reaching that conclusion, the senior member applied the decision of Gillard J in RWH. Dr Kemp applied to this Court for leave to appeal the decision under s 148 of the VCAT Act. J Forrest J upheld the appeal on the basis that s 28(2) applied to the proceeding. His Honour did not set aside the summonses that had issued, but rather left it open to the health practitioners to resist production on the basis of s 28(2) on the return of the summonses.
[2]Medical Board of Australia v Dr Geoffrey Kemp (Review and Regulation) [2016] VCAT 2039 (Senior Member Proctor).

No issue is presented in the appeal about whether, if s 28(2) does apply to the proceeding, DK and TH were entitled to withdraw their written consent or have, by making a complaint to the Board, impliedly consented to the Board having access to their medical records (either generally or at least those held by Dr Kemp). I would reserve those questions until they directly arise for decision.

The National Law

In order to understand the nature of the VCAT proceeding, it is necessary to say something about the National Law.

Section 4 of Health Practitioner Regulation National Law (Victoria) Act 2009 provides that the National Law, as in force from time to time, applies as a law of Victoria. The National Law provides for the detailed regulation of health practitioners by the Australian Health Practitioner Regulation Agency (‘AHPRA’). A National Health Practitioner Board is established for each of the relevant health professions. For the medical profession, it is the Medical Board of Australia. In turn, s 36 of the National Law permits a National Board to establish a committee to enable the board to exercise its functions in each jurisdiction.

In overview, the National Law provides for the establishment of AHPRA as the relevant regulatory agency, the registration of health practitioners, and the setting of standards and disciplinary processes. Those processes allow for certain lower order disciplinary matters to be heard by the relevant board and for referrals of more serious matters to the relevant State tribunal which, in the case of Victoria, is VCAT.[3]
[3]Health Practitioner Regulation National Law (Victoria) Act 2009 s 6.

The National Law provides for registration within each of the categories of health practitioner and confers rights, responsibilities and protections on registered practitioners. Part 8, titled ‘Health, performance and conduct’, provides for various ways in which the conduct of registered health practitioners can be examined and subject to disciplinary oversight.

The National Law provides for notifications to be made to AHPRA, in some cases on a mandatory basis and on a voluntary basis in others. For example, s 141 provides that where, in the course of practice, a health practitioner forms a reasonable belief that another health practitioner has behaved in a way that constitutes ‘notifiable conduct’, the first health practitioner must, as soon as practicable after forming that belief, notify AHPRA of the notifiable conduct.[4] Section 237 provides protection from civil, criminal and administrative liability for a person who makes such a notification in good faith.
[4]‘Notifiable conduct’ is defined in s 140 of the National Law to mean the health practitioner has practised while intoxicated, engaged in sexual misconduct, placed the public at risk of substantial harm because the practitioner has an impairment, or placed the public at risk of harm because the practitioner has practised in a way that constitutes a significant departure from accepted professional standards.

AHPRA is required to refer a notification to the National Board that is relevant to the particular health profession. The board must conduct a preliminary assessment[5] of the notification which may result in the board taking no further action,[6] taking immediate action,[7] or commencing an investigation.[8]
[5]National Law s 149.
[6]Ibid s 151.
[7]Ibid s 156. Amongst other circumstances, a National Board may take immediate action if it reasonably believes that a health practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety: s 156(1)(a). ‘Immediate action’ is defined in s 155 to include suspending, or imposing a condition on, a health practitioner’s registration.
[8]National Law pt 8 div 8.

By s 160, a National Board may investigate a practitioner if it is necessary or appropriate because of a notification or for other specified reasons.[9] If it does so, it must direct an appropriate investigator to conduct an investigation.[10] Schedule 5 to the National Law provides for the powers of investigators, which include the power to obtain information by a written notice requiring a person to give stated information or attend before the investigator to answer questions or produce documents.[11] An investigator may apply to a magistrate of a participating jurisdiction for a warrant to enter premises and to take or seize relevant items of evidence.[12]
[9]Ibid s 160(1).
[10]Ibid s 160(2).
[11]Ibid sch 5 pt 1 cl 1.
[12]Ibid sch 5 pt 2 cls 5, 6, 11.

Section 178 relevantly provides that if, because of a notification or any other reason, a National Board believes a health practitioner’s conduct may be unsatisfactory or that the practitioner has an impairment, it may caution the practitioner, accept an undertaking, or impose conditions on registration. The board is required to follow a show cause process under s 179.

I interpose to observe that neither party submitted that these proceedings at board level were civil proceedings. I consider this position to be correct. This has the consequence that s 28(2) would not stand in the way of an obligation to produce medical information during these processes, including under warrant.

Division 12 of pt 8 deals with referrals of health practitioners to the responsible tribunal (which is VCAT in Victoria). Section 193 relevantly provides that a National Board must refer a matter about a practitioner to VCAT if the board reasonably believes, based on a notification or for any other reason, that the practitioner has behaved in a way that constitutes professional misconduct.[13] The parties to the proceedings before VCAT are the practitioner and the referring board.[14]
[13]Ibid s 193(1)(a)(i).
[14]Ibid s 194.

Section 196 provides that, after hearing a matter about a health practitioner, VCAT may decide, amongst other things, that the practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct, or that the practitioner has an impairment.[15]
[15]Ibid s 196(1)(b).

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 practitioners profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

Following a decision of that kind, VCAT may caution or reprimand the practitioner, cancel, suspend or impose conditions on registration, or order the payment of a fine.[16]
[16]Ibid s 196(2).

In addition to its jurisdiction under s 193, VCAT also has jurisdiction in appeals from certain kinds of decisions made under the National Law.[17] On such an appeal, VCAT may confirm, amend or substitute another decision for the decision under appeal.[18]
[17]Ibid s 199.
[18]Ibid s 202.

The National Law does not provide for the procedure or powers of the responsible tribunal. The relevant powers of VCAT are to be found in the provisions of the VCAT Act.

The VCAT Act

VCAT is established by s 8 of the VCAT Act. VCAT has two types of jurisdiction: original jurisdiction and review jurisdiction.[19] A notification made under the National Law is within the original jurisdiction of VCAT.[20]
[19]Ibid s 40.
[20]See VCAT Act s 43(b).

By s 97, VCAT must act fairly in proceedings and according to the substantial merits of the case. Section 98 provides that VCAT is not bound by the rules of evidence or any practices or procedures applicable to courts of record except to the extent that it adopts those rules, practices or procedures. It is, however, bound by the rules of natural justice.[21] It may inform itself on any matter as it sees fit and must conduct each proceeding with as little formality and technicality as a proper consideration of the matters before it and the enabling Act permit.[22]
[21]VCAT Act s 98(1)(a).
[22]Ibid s 98(1)(c), (d).

Section 104 authorises the principal registrar of VCAT to issue a summons to a person to attend to give evidence and produce any documents that are referred to in the summons.

Section 106 provides that, subject to two exceptions, a person is excused 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. The first of the two qualifications on that provision apply in review proceedings and the second in respect of the privilege against self-incrimination which is abrogated by s 105 the VCAT Act.

Section 134 provides that a person who has been properly served with a summons to attend must not, without reasonable excuse, fail to attend or to produce any document on pain of committing a criminal offence.

The EMP Act

The EMP Act was enacted as the Evidence Act 1958 (which was itself a consolidation of earlier Acts). It was renamed the EMP Act when most of its provisions were repealed and re-enacted in the Evidence Act 2008.

Section 28 of the EMP Act provides:

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.

Sections 28(3) and (4) deal with consent in the case of patients who are deceased. Section 28(5) provides for some specific exceptions in these terms:

(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 decision of J Forrest J

In his judgment, J Forrest J considered the earlier decision of Gillard J in RWH and identified three interrelated questions:[23]
[23]Dr Geoffrey Kemp v Medical Board of Australia [2017] VSC 691 [5] (‘Reasons’).

(e) Is s 28(2) limited in its operation to a court proceeding?

(f) If s 28(2) is not limited to a court proceeding, does a civil suit, action or proceeding include the hearing and determination in VCAT of the disciplinary charges against Dr Kemp?

(g) If s 28(2) is confined to proceedings in a court, is a hearing and determination in VCAT of the disciplinary charges a civil proceeding in a court?

His Honour answered the first question in the negative, and in doing so declined to follow Gillard J in RWH.[24] He answered the second question in the affirmative, holding that the VCAT proceeding was a legal proceeding and therefore a civil proceeding.[25] He determined that the third was unnecessary to answer.[26] In the result, his Honour held that s 28(2) applied in the VCAT proceeding against Dr Kemp.
[24]Ibid [100].
[25]Ibid [137]−[138].
[26]Ibid [139].

J Forrest J began his analysis by noting that s 28(2) does not contain any explicit qualification on the word ‘proceeding’ so as to limit the phrase to proceedings in a court. His Honour recognised that the term ‘proceeding’ refers to a legal proceeding as a matter of ordinary and plain meaning, but observed that it was not further qualified.[27]
[27]Ibid [57]−[58].

His Honour said the purpose of s 28(2) 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.’[28] His Honour went on to observe that 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.[29]
[28]Ibid [65].
[29]Ibid [68].

His Honour then considered whether the legislative history of the provision, as considered in depth by Gillard J in RWH, might shed light on its proper construction.[30] In RWH, Gillard J in effect gave the phrase ‘any civil suit action or proceeding’ the construction he perceived that it would have had at the time of the enactment of its first iteration in 1857.
[30]Ibid [69].

J Forrest J did not find that legislative history compelling in circumstances where, in his view, there was no doubt or ambiguity about the meaning of s 28(2).[31] Further, his Honour concluded that it was inappropriate to apply the ‘contemporaneous exposition principle’, which would freeze the meaning of the phrase to that which it held on its original enactment, on the basis that the phrase ‘any civil suit action or proceeding’ is one of indeterminate scope and high generality such as to lend itself to an ambulatory construction.[32]
[31]Ibid [70].
[32]Ibid [91].

In RWH, Gillard J concluded that the New South Wales and Victorian legislatures had 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 apply beyond the court, the legislature stated this intention expressly.[33] Gillard J referred to s 24 of the Evidence Act 1958 (as in force at the time of his Honour’s decision) which dealt with the compellability of parties and their husbands and wives. His Honour referred to this provision as an example of where the Evidence Act 1958 expressly extended to a suit, action or proceeding ‘before any person having by law or by consent of the parties authority to hear receive and examine evidence.’[34] His Honour considered that this conclusion was reinforced by earlier legislation, where it was ‘clear that “any civil suit action or proceeding” was a composite phrase to cover any proceeding or process in a court of law.’[35]
[33]RWH [2005] VSC 225 [55].
[34]Ibid [59].
[35]Ibid [57].

As mentioned earlier, J Forrest J declined to follow the reasoning in RWH. Having regard to the fact that there was no express qualification in the text that would confine s 28(2) to a court,[36] and that a broader operation of s 28(2) would advance the purpose of protecting medical confidence,[37] his Honour concluded that the provision is not limited in its operation to proceedings in a court.[38]
[36]Reasons [57]−[58].
[37]Ibid [67]−[68].
[38]Ibid [100].

Having rejected the construction which had been favoured by Gillard J, his Honour then turned to the second question, namely whether a referral by the Board to VCAT under the National Law is a civil suit, action or proceeding.

After surveying a number of provisions in the VCAT Act, his Honour concluded that it was impossible to reach a conclusion other than that a hearing and determination in 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’.[39]
[39]Ibid [125].

In reaching this conclusion, his Honour was influenced by a number of features of proceedings in VCAT, including that:

(h) any member of VCAT has the same protection and immunity as is given to a judge of the Supreme Court in the performance of his or her duties as a judge;[40]
[40]Ibid [113], citing VCAT Act s 143.

(i) VCAT has the power to make orders striking out all or part of a proceeding or referring questions of law to the Supreme Court or the Court of Appeal;[41]
[41]Ibid [115], citing VCAT Act s 96. See also VCAT Act s 76.

(j) VCAT hearings are open, except in limited circumstances;[42]

(k) VCAT is obliged to act fairly and according to the substantial merits of the case;[43] and

(l) VCAT proceedings involve parties and any person may be joined to or removed as a party to a proceeding.[44] Parties may be represented and must be given opportunity to give evidence, examine, cross-examine or re-examine witnesses and make submissions.[45]

[42]Ibid [116], citing Open Courts Act 2013 ss 28, 30.

[43]Ibid [117]. See VCAT Act s 97.

[44]Ibid [118], citing VCAT Act ss 59, 60.

[45]Ibid [118], citing VCAT Act ss 62, 102.

His Honour also had regard to the fact that VCAT has the power to summons witnesses,[46] evidence may be given on oath or affirmation,[47] and a person may be guilty of contempt in circumstances that are similar to those which would give rise to a contempt of court.[48]
[46]Ibid [120], citing VCAT Act s 104.
[47]Ibid [120], citing VCAT Act s 102(4).
[48]Ibid [120], citing VCAT Act s 137(1), (5).

The Board’s submissions

In its written submissions filed prior to the hearing of the application for leave to appeal in this Court, the Board submitted that s 28(2) did not apply to disciplinary proceedings because such proceedings have a special status and have, in a number of authorities, been distinguished from both civil and criminal proceedings. The Board relied on Attorney-General (Vic) v Riach in which Kaye J observed that a hearing before a board of enquiry is neither a civil nor a criminal proceeding.[49] Having identified that disciplinary proceedings have been contrasted with civil proceedings in certain contexts, the Board submitted that, having regard to the context in which the phrase ‘civil suit action or proceeding’ appears in s 28(2) and the purpose of the provision, disciplinary proceedings do not fall within its scope.
[49]Attorney-General (Vic) v Riach [1978] VR 301, 309.

In oral argument, the Board reformulated its construction and submitted that a ‘civil suit action or proceeding’ did not include a proceeding in which the claim or relief was not sought for the benefit of the party bringing the proceeding. In that context, disciplinary proceedings were said to be an example of a broader class of matters that are brought not to advance the interest of the moving party but rather for the benefit of the public. That broader class of matters, it was said, did not fall within s 28(2).

The Board submitted that the phrase ‘civil proceeding’ is a term of indeterminate meaning, as the unstable dichotomy between civil and criminal proceedings demonstrates. It was further submitted that it is necessary to have regard to the purpose of the provision and the consequences that would flow from any proposed construction. It submitted that the purpose of confining s 28(2) to civil suits, actions and proceedings is to limit its operation to the adjudication of private interests or claims. The Board submitted that s 28(2) gives primacy to obligations of confidence owed by health practitioners to their patients in the context of proceedings that are brought to vindicate private interests. It was submitted that s 28(2) did not produce any change to the common law position in relation to proceedings that are conducted in the public interest.

Further, it was submitted that the contrary construction produced consequences that would not have been intended. It was submitted that it would not have been intended that s 28(2) would defeat the public interest in ensuring that all relevant evidence is available in disciplinary proceedings which are prosecuted in the public interest. A broad construction would deny relevant information in a regulatory context that depends for its efficacy on access to information about medical practice and therefore requires the divulging of information which a patient may be reluctant to disclose. According to the Board, such a result would be absurd.

The Board’s criterion for the operation of s 28(2) thus focused on the purpose for which the relevant proceedings were commenced, as reflected in the relief that is sought. Its single criterion is to ask for whose benefit the proceeding is brought.

Dr Kemp’s submissions

Dr Kemp submitted that the word ‘proceeding’ is broad and that Parliament had deployed it deliberately because of its breadth. It was said that there is no reason to narrow the class of matters in which s 28(2) applies beyond the exclusion of criminal matters which are excluded by necessary implication.

Dr Kemp submitted that the purpose of s 28(2) is to protect medical confidence. Reference was made to the judgment of Barton J in National Mutual Life Association of Australasia Ltd v Godrich (‘Godrich’), in which his Honour highlighted the importance of medical confidence.[50]
[50](1910) 10 CLR 1, 20−1.

It was submitted that disciplinary proceedings are quintessentially civil in nature, involving an assessment of evidence under the civil standard in order to determine whether a person should retain the individual right to practise in a particular profession. According to Dr Kemp, it is not to the point that the regulation of the individual right to practise takes place by reference to the concept of public protection.

Dr Kemp also opposed the Board’s contention that absurd results would flow from a broad construction of s 28(2). There were said to be a variety of mechanisms by which the Board might obtain relevant information, including by issuing a subpoena to the patient or by executing search warrants on doctors and seizing relevant records.

Analysis
The text of s 28(2)
The phrase ‘civil suit action or proceeding’

The phrase ‘suit action or proceeding’ contains words of considerable breadth. Depending on their context, the words ‘suit’, ‘action’ and ‘proceeding’ may be further limited by reference to the forum in which they are brought, the purpose for which they are commenced, the nature of the function being performed, the form of relief that is sought, the nature of the underlying issue being determined, or a combination of those factors. In s 28(2), the word ’civil’ provides the only express word of limitation. To the extent that any other limitation inheres, it is to be discerned from matters of context, including the purpose of the provision.

When examining the text of s 28(2), it is important to bear in mind that the task of the Court is to construe the provision as a whole and not just each individual word contained within it.[51] Accordingly, it is inappropriate to extract from the provision the phrase ‘civil … proceeding’ and construe that phrase divorced from the fact that it is contained within a sub-section and within a collocation of words, namely ‘civil suit action or proceeding’. That is particularly so as the word ‘proceeding’ is capable of bearing different shades of meaning depending on its context.
[51]Sea Shepherd Australia Ltd v Federal Commissioner of Taxation (2013) 212 FCR 252, 261 [34] (Gordon J).

The words ‘suit’ and ‘action’ are words that are strongly associated with court process, and the use of the three words together (‘suit action or proceeding’) suggest some symmetry of meaning. In Blake v Norris, Smart J referred to a number of definitions of the words ‘proceeding’ or ‘proceedings’, noting that in some cases a proceeding is equivalent to an action whereas in others it may mean a step in an action.[52] His Honour concluded that the word ‘proceeding’ is capable of ‘such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear.’[53]
[52](1990) 20 NSWLR 300, 306.
[53]Ibid.

In Cheney v Spooner,[54] the High Court considered whether a summons issued under s 123 of the Companies Act 1899 (NSW) requiring a person to attend an examination into the affairs of a company was a summons to appear and give evidence in a ‘civil proceeding’ within the meaning of s 16 of the Service and Execution of Process Act 1901-1924 (Cth).Isaacs and Gavan Duffy JJ observed that a ‘proceeding’ used in its broad sense is ‘merely some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer.’[55] Starke J regarded a civil proceeding as including ‘any application by a suitor to a Court in its civil jurisdiction for its intervention or action.’[56]
[54](1929) 41 CLR 532.
[55]Ibid 536−7.
[56]Ibid 538−9.

In my view, the three words, ‘suit’, ‘action’ and ‘proceeding’, used together are apt to describe the engagement of some form of legal or judicial process. They are descriptive of a type of function. This approach reflects not just the forum in which the suit, action or proceeding is entertained (although that will be relevant) but the nature of the function that is undertaken, the process adopted, and the relief that may be obtained at its conclusion. Certainly, J Forrest J recognised that the phrase ‘civil suit action or proceeding’ described some form of ‘legal proceeding’.[57] His Honour considered that the ordinary and plain meaning of the word ‘proceeding’, in a context where it is situated together with the words ‘suit’ and ‘action’ and within an Act governing the adducing of evidence, was that it refers to a legal proceeding.[58] His Honour was heavily influenced by the form of the process engaged in in VCAT and the similarities with court process.[59]
[57]Reasons [57]−[58].
[58]Ibid [57].
[59]Ibid [106], [109]−[125].

The usual attribute of a suit, action or proceeding is the determination of a claim, usually between parties, by a body charged with responsibility for making a binding decision. Such determinations usually involve the application of well-recognised processes relating to the obtaining and presentation of relevant material and the application of rules of procedural fairness.

Plainly, the phrase ‘civil suit action or proceeding’ is apt to describe the processes that occur in a court. Gillard J considered that, read in context, s 28(2) was confined to those cases. However, bodies other than courts have long been conferred with jurisdiction to entertain proceedings that have most, if not all, the hallmarks of a curial process, including the determination of claims, the granting of particular relief, and the employment of a process of adjudication. Functionally, some of those proceedings have little to distinguish themselves from legal proceedings in a court.[60]
[60]See, eg, Subway Systems Australia Pty Ltd v Ireland (2014) 46 VR 49, 61−2 [42]−[44] (Maxwell P).

On the other hand, administrative tribunals regularly perform administrative or regulatory functions that are different to those engaged in by a court. Administrative tribunals often employ a similar process to that utilised in a court but those similarities should not conceal the different functions that are performed as between those bodies.

State tribunals such as VCAT are invested with different types of jurisdiction, some of which are administrative or regulatory in nature and others that are judicial in nature. The strict separation of powers that applies at federal level has no application to the States and there is no constitutional impediment on both types of functions being performed by the same body. At the State level, therefore, courts and administrative tribunals are both involved in performing the curial function of determining rights. Even at the federal level, tribunals and bodies other than courts are commonly engaged in an adjudication on professional standards and impose sanctions in the public interest. Their function does not entail the exercise of judicial power.[61]
[61]Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350, 358−63 [16]−[35] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ), 378−9 [96]−[97] (Kirby J).

In my view, as a matter of text, the words of s 28(2) best describe a function of determining the rights of the parties in a curial setting and are not apt to describe administrative or regulatory functions.

The dichotomy between civil and criminal proceedings

The Board sought to give s 28(2) a narrower construction by limiting the phrase to a suit, action or proceeding brought for the benefit of the moving party. In making that submission, the Board relied on the judgment of the High Court in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (‘Labrador’).[62] In that case, Hayne J pointed out that the classification of proceedings as civil or criminal is ‘at best, unstable’ and ‘seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges. There are proceedings with both civil and criminal characteristics’.[63]
[62](2003) 216 CLR 161.
[63]Ibid 198 [114].

Labrador involved a prosecution for a customs offence in the Supreme Court of Queensland. By its amended statement of claim, Customs sought declarations that each of the respondents was ‘liable to conviction for offences’ contrary to identified sections of the Customs Act 1901 (Cth) and Excise Act 1901 (Cth), the conviction of the respondents for those offences, and orders for recovery of penalties, reparation and costs.

The appeal to the High Court related to the determination of separate questions regarding the standard of proof required to obtain convictions, and whether the proceedings were ‘criminal proceedings’ for the purposes of the Evidence Act 1977 (Qld). The High Court held that each element of the offences must be established beyond reasonable doubt and that the provisions of the Evidence Act1977 (Qld) that would be applied in civil proceedings should be applied at trial.

Hayne J, with whom Gleeson CJ and McHugh J agreed, concluded that the separate questions could not simply be answered by a determination as to whether the proceedings were civil or criminal.[64] That was so, in large part, due to the particular statutory regime[65] and the fact that:

proceedings on the revenue side had a unique history and should properly be understood as being proceedings distinctly different, not only from proceedings brought in the name of the Crown for punishment of crime, but also from proceedings for the vindication of rights and duties between subjects.[66]

[64]Ibid 198−9 [114]−[115].

[65]Ibid 199 [115].

[66]Ibid 195 [107].

Hayne J focused on the kinds of orders that the proceedings seek rather than starting from the premise that the process of classification (between civil and criminal) would resolve questions about the standard of proof and which rules of evidence apply.[67] Hayne J observed that such an approach was necessary because the process of classification assumes a strict dichotomy between civil and criminal that may not exist, and the idea that a proceeding has an ‘essential character’, being either criminal or civil, was a false one.[68]
[67]Ibid 205−6 [136].
[68]Ibid 198−9 [114], 205−6 [136].

In the result, Hayne J concluded that the criminal standard of proof was required to obtain convictions, with the civil rules of evidence to be applied.[69] The latter conclusion followed from s 247 of the Customs Act 1901 (Cth), which relevantly provided that the court should proceed ‘in accordance with the usual practice and procedure of the Court in civil cases’.[70]
[69]Ibid 205 [135], 206 [137]−[138], 209 [147].
[70]Ibid 209 [147]. Hayne J held that the standard of proof was not a matter of practice and procedure: see Labrador (2003) 216 CLR 161, 201−2 [125].

The difficulty in articulating the dividing line between civil and criminal cases may be seen also in the context of proceedings for contempt,[71] civil penalty proceedings,[72] and in the award of exemplary damages in tort. Concepts such as punishment or deterrence, and the purpose for which the proceedings are brought, are relevant but not dispositive.
[71]Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ); Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ); Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 392−3 [58]−[59] (Nettle J).
[72]Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482.

For example, in Hinch v Attorney-General (Vic), five justices of the High Court observed that:

Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction …[73]

[73]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ).

In Commonwealth v Director, Fair Work Building Industry Inspectorate (‘DFWBII’),[74] the High Court rejected a submission that the principles expounded in Barbaro v The Queen[75] apply in civil penalty proceedings. In the course of their reasons, the plurality in DFWBII noted that there are basic differences between a criminal prosecution and a civil penalty proceeding. A criminal proceeding is an accusatorial proceeding with the burden on the Crown to establish the guilt of the accused beyond reasonable doubt. The companion rule is that the accused cannot be required to assist in proof of the offence charged.[76] By contrast, a civil penalty proceeding is a civil proceeding conducted in an adversarial context with the issues and relief framed and limited by the parties. The standard of proof is upon the balance of probabilities and the respondent is denied most of the procedural protections afforded to an accused in criminal proceedings.[77]
[74](2015) 258 CLR 482.
[75](2014) 253 CLR 58.
[76]DFWBII (2015) 258 CLR 482, 505 [52] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).
[77]Ibid 505 [53] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).

Although the dichotomy between civil and criminal has been described as unstable, it is certain enough to be applied in a number of contexts. As Keane J observed in DFWBII:

But distinctions are regularly drawn for particular purposes between criminal proceedings and civil proceedings; and these distinctions have proved to be sufficiently stable to serve the purposes for which they have been drawn. For example, it is now well understood that the various procedural protections of the position of an accused, developed as aspects of ‘the accusatorial nature of a criminal trial in our system of criminal justice’, are not equally applicable in civil proceedings. Further, it is not suggested that either the availability or the exercise of the power to award exemplary damages in proceedings for tort for the purpose of punishing the tortfeasor rather than compensating the victim alters the civil character of the proceedings. And, more importantly, for a court to ignore the legislature's designation of statutory proscriptions as civil penalty provisions on the basis of the court's view that it is a misleading label is distinctly inconsistent with the deference due by the judicial branch of government to the legislative branch under constitutional arrangements whereby the respective powers of those branches are separated.[78]

[78]Ibid 516−17 [90] (citations omitted).

It follows from this analysis that a civil proceeding does not necessary have immutable characteristics. Some matters brought in the civil jurisdiction need to be proved beyond reasonable doubt and the orders made or remedy given may have a punitive or deterrent purpose or effect. However, there remain important and fundamental distinctions between a civil proceeding and a criminal proceeding that involves the prosecution of a criminal offence.

Proceedings brought other than for the benefit of the moving party

In the present case, the Board does not contend that the proceeding in VCAT is a criminal proceeding. That is so because there is no charge, VCAT has no criminal jurisdiction, and a conviction for an offence is not sought. The VCAT proceeding is not a criminal proceeding in form or substance.

The Board relies on Labrador to submit that the concept of civil proceeding has no fixed and immutable content and, in the present context, excludes cases where the remedy is not sought for the benefit of the moving party. The construction was said to apply regardless of the forum in which the matter is heard and so would exclude certain proceedings in a court, including this Court.

The above analysis does not assist the Board. The cases do not support the proposition that there is, within the class of civil proceedings, a recognised or clearly defined class or subset of proceedings that are brought in the public interest. The Board’s construction would exclude many different types of proceeding from the scope of s 28(2) and relies, at its heart, on the identification of proceedings brought for a public purpose.

As the plurality observed in DFWBII:

It is true that there is a public interest in the imposition of civil penalties as opposed to the purely private interests which are in issue in many civil proceedings. But civil penalty proceedings are by no means the only civil proceedings in which the public interest is involved. Custody disputes involve the public interest. So do group proceedings and schemes of arrangement. So also do taxation, customs and social security appeals, and detention orders; and examples can be multiplied.[79]

[79]Ibid 507 [59].

Similarly, in the context of considering the costs rule in ‘public interest litigation’, McHugh J observed that the concept of public interest litigation is inherently imprecise.[80]
[80]Oshlack v Richmond River Council (1998) 193 CLR 72, 98−9 [71].

In that regard, I note that judicial review proceedings are regularly brought by individuals and organisations with a view to vindicating public interests. Absent any statutory extension of standing, such persons need to have a ‘special interest in the subject matter of the action’ in order to bring the proceeding,[81] but the relief and remedy will often have an entirely public dimension.
[81]See Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 256 [21] (Gaudron, Gummow and Kirby JJ), referring to Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ).

There is considerable High Court authority in the industrial sphere where, even in the absence of a legal interest, a ‘stranger’ to an industrial dispute has standing as prosecutor to seek an order for prohibition under s 75(v) of the Constitution; this is so even though in such cases the discretion to refuse the remedy may be greater than would otherwise be the case.[82]
[82]Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 263 [40] (Gaudron, Gummow and Kirby JJ), citing R v Graziers’ Association of NSW; Ex parte Australian Workers’ Union (1956) 96 CLR 317, 327 (Dixon CJ, McTiernan and Kitto JJ); R v Watson; Ex parte Australian Workers’ Union (1972) 128 CLR 77, 81 (Menzies J); R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190, 201−2 (Barwick CJ). See also Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 627−8 [95] (Gummow J).

Moreover, it is not uncommon for governments and government bodies to bring proceedings in a court in various contexts, including seeking declaratory or other relief in public law proceedings or seeking damages or some other form of relief for breach of contract. Although such a proceeding might be said to be brought on behalf of, and for the benefit of, the public as a whole, it would usually be described as a civil action.

We were not taken to any authority where the statutory phrase ‘civil proceeding’ in its application to court process has been confined to proceedings that are brought to secure some form of relief or benefit for the moving party. The supposed distinction between civil proceedings and proceedings brought other than for the benefit of the moving party is neither established by authority or practice nor capable of precise application. The uncertainty of the scope of proceedings that could be said to be brought in the public interest is one reason for not adopting the Board’s construction.

That uncertainty is brought into sharp relief when one considers whether an appeal to this Court from VCAT’s decision in a disciplinary proceeding would constitute a ‘civil suit action or proceeding’ within the meaning of s 28(2). Such an appeal might be instituted by a doctor or the referring board under s 148 of the VCAT Act. If the doctor were to institute the appeal, he or she might be said to be asserting or enforcing a private right, being the right to practise. Before us, senior counsel for the Board submitted that, at least for the purposes of s 28(2), the appeal would take its character from the VCAT proceeding, regardless of the identity of the applicant. On this view, an appeal brought under s 148 might be a ‘civil proceeding’ for all intents and purposes other than for the purpose of the application of s 28(2). That would be a surprising result.

Further, in my view, there is nothing in the text of s 28(2) that directly supports the construction for which the Board contends.

The purpose of s 28(2)

A rule of evidence

In its broadest conception, the purpose of s 28(2) is to prescribe a rule of evidence or procedure that applies in a civil suit, action or proceeding. It does not create a general substantive right to medical confidence. That is evidenced in the circumstances of this case by the fact that the Board’s ability to obtain information as part of an investigation into a medical practitioner is not constrained by the notion of doctor−patient confidentiality.

At common law, the relationship between a doctor and his or her patient gives rise to an obligation of confidence.[83] However, that obligation of confidence, whether sourced in equity or contract, could not stand in the way of an obligation to give evidence as a witness or to produce documents pursuant to an order for discovery or a subpoena. It follows that, at common law, a doctor could not refuse to give evidence or produce documents in a legal proceeding on the ground of doctor−patient confidentiality. Section 28(2) alters that position by providing that a doctor cannot be compelled to disclose the relevant information in a civil suit, action or proceeding.
[83]See Hunter v Mann [1974] QB 767, 772 (Boreham J, with whom Lord Widgery CJ and May J agreed); Parry-Jones v Law Society [1969] 1 Ch 1, 7 (Lord Denning MR), 9 (Diplock LJ); Breen v Williams (1996) 186 CLR 71, 78−9 (Brennan J), 90−2 (Dawson and Toohey JJ), 102 (Gaudron and McHugh JJ), 123−4 (Gummow J); Kadian v Richards (2004) 61 NSWLR 222, 240−1 [44]−[48] (Campbell J).

The operation of s 28(2) may be contrasted with other forms of privilege, for example, the privilege against self-incrimination. Four members of the High Court have described that privilege as not simply a rule of evidence but a basic and substantive common law right.[84] That contrast is relevant because, when approaching the question of construction of s 28(2), the court is not concerned with a statutory alteration or abrogation of a common law right.
[84]Reid v Howard (1995) 184 CLR 1, 11 (Toohey, Gaudron, McHugh and Gummow JJ). See also X7 v Australian Crime Commission (2013) 248 CLR 92, 117 [40] (French CJ and Crennan J), 136−7 [104] (Hayne and Bell JJ).

It will be recalled that s 98 of the VCAT Act provides that VCAT is not bound by the rules of evidence or practices or procedures applicable to courts. In my view, it is of significance that s 28(2), as a rule of evidence or procedure, has no general application to proceedings in VCAT. However, this is not determinative of the question of construction that arises on this appeal, given that s 98 provides for VCAT to adopt rules of evidence, practices or procedures in particular cases.

The protection of medical confidence

In arriving at his preferred construction of the provision, J Forrest J was heavily influenced by what his Honour perceived to be the policy lying behind s 28(2), namely the protection of medical confidence as the paramount concern.

His Honour referred to the judgment of Isaacs J in Godrich where it was said:[85]

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.[86]

[85]Reasons [62].

[86]Godrich (1910) 10 CLR 1, 33−4 (citations omitted).

His Honour identified that in civil matters the confidentiality of the communication between doctor and patient is paramount, absent consent of the patient.[87]
[87]Reasons [65].

With respect, in my opinion, it is not possible to discern from s 28(2) the purpose of giving paramount protection to medical confidence. The approach taken by J Forrest J, which gives paramountcy to the confidentiality of doctor−patient communication,[88] and his conclusion that the goal of the provision is to protect the privacy of the individual patient in a civil proceeding unless he or she consents,[89] provides no answer to the question that falls for decision.
[88]Ibid.
[89]Ibid [68].

In my view, it is not consistent with correct constructional principle to proceed from the premise that s 28(2) should be construed in a way as to maximise the protection of the confidential information. The extent to which s 28(2) provides that protection is the question that falls for decision, and that question should not be answered by starting with a presumption that the section intends to give paramountcy to patient confidentiality in all circumstances. The approach of the section as a whole is more nuanced.

In seeking to divine the purpose of s 28(2), it is necessary to pay close regard to the provision as a whole. The purpose is to be ascertained from the text, not from some assumed starting point.[90] That is particularly true where the statute involves a compromise between competing interests.[91]
[90]Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J).
[91]See Victims Compensation Fund v Brown (2002) 54 NSWLR 668, 671−2 [8]−[12] (Spigelman CJ, dissenting). The High Court allowed an appeal from this decision: see Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797, 1804 [33] (Heydon J, with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed). See also Carr v Western Australia (2007) 232 CLR 138, 142−3 [5] (Gleeson CJ); Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, 632−3 [40]−[41] (Crennan, Kiefel, Bell, Gageler and Keane JJ); My Environment Inc v Vic Forests (2013) 42 VR 456, 459−62 [5]−[14] (Warren CJ), 497−500 [148]−[154] (Tate JA).

Section 28(2) operates at the intersection of various interests but in a specific context. First, there is the interest of the patient in protecting medical confidence. Second, there are the interests of the parties to the suit, action or proceeding who will be denied access to the material that, it must be assumed, would otherwise be obtainable and probative of some issue in dispute. Third, there is the public interest that the administration of justice shall not be frustrated by the withholding of documents or evidence which must be produced if justice is to be done.

It is clear that one of the purposes of s 28(2) is to protect the interests of the patient by protecting doctor−patient confidentiality. It is the patient, through the giving or withholding of consent, who controls the ability of the doctor to disclose information obtained from consultation or examination. The ability of the patient to control access to information extends to preventing the release of information, even in the context of a subpoena issued to the medical practitioner.

The interests that are protected where s 28(2) applies are, in one sense, private interests, although that description does not fully capture what is at stake. As the judgment of Barton J in Godrich reveals, the interests in medical confidence are important and serve the broader interest of the community in fostering access to medical care and treatment.[92] In Royal Women’s Hospital v Medical Practitioners Board of Victoria, Maxwell P described the maintenance of medical confidentiality as ‘a matter of high public importance’, in a context where the evidence in that case established that if medical records were revealed it might discourage patients from seeking critical medical assistance relating to the termination of pregnancy.[93]
[92]Godrich (1910) 10 CLR 1, 19−20.
[93]Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 35−6 [56]−[58]; see also Royal Women’s Hospital v Medical Practitioners Boardof Victoria (2006) 15 VR 22, 28 [21] (Warren CJ).

Although there may be a broader public dimension in medical confidence, it is not one protected by the common law beyond an action in contract or equity for the protection of confidential information. In this sense, medical privilege, if that description is apt, is very different to lawyer−client privilege and the privilege against self-incrimination, which both operate as substantive common law rights.

The second interest is that of the party who seeks to elicit testimony or the production of documents. The ability of a party to obtain access to the information of the opposing party by discovery or subpoena, or from third parties by subpoena, is one that is given in aid of the conduct of the proceeding. The party obtaining such information, at least until it is admitted into evidence, must not use it for any purpose other than that for which it was given, on pain of contempt.[94] In that sense, a party does not seek medical information as an end in itself but rather to assist it in achieving an outcome in the suit, action or proceeding which is favourable to it.
[94]Hearne v Street (2008) 235 CLR 125, 154−5 [96] (Hayne, Heydon and Crennan JJ).

The third interest is the important, but broader, public interest in the administration of justice. This interest is readily engaged where the application of s 28(2) arises in court proceedings, but less so in the context of tribunals outside the court system.

There is a degree of overlap between the second and third interests, although they reflect different perspectives. Importantly, those interests are not absolute. Rules of procedure regularly limit the ability of a party to compulsory access to documents through discovery and subpoena.

Further, rules of evidence exclude the admission into evidence of documents and testimony that would otherwise be relevant and probative. Rules of evidence confine the evidentiary record but do not impair the curial function of finding facts, applying the law, or exercising any discretion.[95]
[95]Nicholas v The Queen (1998) 193 CLR 173, 189 [23] (Brennan CJ).

Having identified the various interests in play, it is apparent from its terms that s 28(2) does not operate to favour only a single interest.

First, on any view, s 28(2) would not stand in the way of compelling the production of documents or eliciting medical evidence from a doctor in a prosecution for a criminal offence.

Second, there are the exceptions in s 28(5) setting out various circumstances in which s 28(2) does not apply. Section 28(5)(a) and (b) relevantly provide that s 28(2) does not apply in proceedings for damages under the Wrongs Act 1958 or compensation for the death of the patient under workers’ compensation legislation. Section 28(5)(c) has the same effect but in relation to any civil suit, action or proceeding in which the sanity or testamentary capacity of the patient is in issue.

Third, and importantly, s 28(2) does not preclude obtaining evidence from the patient. Section 28(2), in its terms, does not permit a witness to refuse to produce documents or answer questions that reveal information provided to or acquired from a treating doctor.

Fourth, s 28(2) does not preclude the drawing of inferences from a party’s failure to allow for the production or eliciting of the relevant information. O’Donnell v Reichard[96] provides a relevant example. In that case, the plaintiff was awarded damages by a jury for personal injury arising from a motor vehicle accident. At trial, the plaintiff had failed to call three treating doctors who had attended upon the plaintiff shortly after the accident. The trial judge had directed the jury that they were to put the failure to call the doctors completely out of their minds on the basis that there was no evidence that the doctors were available and the defendant could have called them.
[96][1975] VR 916.

The defendant appealed to the Full Court of this Court against the assessment of damages on grounds that included an attack on the direction concerning the failure to call the doctors. The Full Court allowed the appeal, concluding that the jury could legitimately have taken into account the failure to call the doctors,[97] having regard to the principle propounded in Jones v Dunkel.[98] The Full Court observed that, contrary to the direction, it was unreasonable to conclude that the defendant could have called the doctors, having regard to the fact that the doctors could not give evidence unless the plaintiff had waived the privilege given to her by s 28(2).[99]
[97]Ibid 924 (Gillard J), 937−8 (Newton and Norris JJ).
[98](1959) 101 CLR 298.
[99]O’Donnell v Reichard [1975] VR 916, 923 (Gillard J), 937 (Newton and Norris JJ).

It follows that the purpose of s 28(2) is to overcome the common law and to provide for the protection of medical confidence in a ‘large class of forensic controversies.’[100] It is also relevant that the balance that is sought to be struck is one that mediates between private interests.

The protection of private interests

[100]Godrich (1910) 10 CLR 1, 21 (Barton J).

It will be recalled that the Board submits that the purpose of s 28(2) is to mediate between private interests and that it has no role to play where the relevant proceeding is one that is not brought in the interest of the moving party but is rather brought in the public interest. Although I do not accept the Board’s construction, I do accept that the purpose of the provision is to provide some protection for medical confidence in the context of the determination of private rights.

In looking at the purpose of s 28(2), it is relevant to consider the circumstances in which it is likely to arise. Section 28(2) operates where medical evidence, documentary or oral, would be relevant to a matter in issue. In the context of court litigation, that relevance may be at the least adjectival in the context of a subpoena or determined by reference to the law of evidence for oral testimony.

Medical evidence will most commonly be relevant in the context of a claim for compensation or damages for personal injury or where it is necessary to establish some incapacity or injury. Such cases do not exhaust the universe where medical evidence might be relevant but they are likely to reflect the proportion of these cases. Such matters will fit comfortably within the phrase ‘civil suit action or proceeding’. They are civil in nature in that they will entail the determination of private rights, they arise in the context of curial or arbitral proceedings, and they are brought to achieve an award or decision in favour of the claimant.

In those cases, there is a balance between competing private interests in the context of the broader public interest in ensuring that the court has access to all relevant material. However, the essential balance that is struck is between competing private interests. Section 28(2) is intended to provide a rule of evidence or procedure that is limited in scope and mediates between those competing private interests.

Support for that limited scope may be found in the passage from the judgment of Isaacs J in Godrich, in which his Honour observed that, in contrast to criminal proceedings where the interests of the public are thought to outweigh considerations of medical confidence, the State ‘refuses to be a participant in the breach of a personal trust’ ‘where individual rights only are in controversy’.[101]
[101]Ibid 33−4.

The context of s 28(2): other provisions of the EMP Act

Self-evidently, the context of s 28(2) includes other provisions of the EMP Act. It is important to read an Act as a whole, and the structure of an Act may provide a sure guide to its meaning.[102] As a general proposition, one may discern consistent patterns of drafting within an Act. This principle of legislative interpretation may provide a useful aid to the construction of the provisions of an Act.
[102]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ), quoting Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 (Dixon CJ).

However, the EMP Act, as the reference in its title to miscellaneous provisions suggests, is a miscellany of provisions (many of which are of considerable antiquity) that do not coalesce into a single coherent whole. Many of the provisions are targeted to specific matters that bear little relationship to matters dealt with in other provisions in the Act. For that reason, consistency of drafting is not always apparent, and the presence or absence of consistent language is less useful than in other legislative contexts.

With that caveat, it is appropriate to address some of the other provisions that may shed light on the construction of s 28(2).

First, in the definitions section of the EMP Act, ‘legal proceeding’ is defined 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’.[103] The defined term ‘legal proceeding’ is used in a number of places in the EMP Act, in quite different contexts. For example, s 12 is concerned with bringing prisoners before a court, judge, or person acting judicially for the purposes of giving evidence in any legal proceeding without the need for a writ of habeas corpus. Section 21L provides that evidence of anything said, or any admission made, at a conference with a mediator is not admissible in any court or legal proceeding.
[103]EMP Act s 3. The phrase 'person acting judicially' is defined in s 3 to include a court, judge, arbitrator, or person having authority to hear, receive and examine evidence.

The use of the term ‘legal proceeding’ in such provisions is relevant to the construction of s 28(2) because it provides an example of the legislation identifying a proceeding that falls outside of any strict dichotomy between civil and criminal proceedings. The Board submitted that a ‘mixed proceeding’ is a proceeding that exhibits attributes that are found in both civil and criminal proceedings and would include a disciplinary proceeding where, for example, there may be an inquiry into alleged misconduct of a health practitioner in the context of considering whether sanctions should be imposed.

Division 1C of pt I of the EMP Act deals with the taking of evidence for proceedings in foreign and Australian courts. In that division, ‘proceedings’ is defined to mean (a) proceedings in any civil or commercial matter; or (b) proceedings in or before a court in relation to the commission of an offence or an alleged offence. Although the provisions in div 1C appear in a different context to s 28(2), the definition of ‘proceedings’ in that division demonstrates that in another part of the Act there is an apparent distinction between civil and commercial matters.

Division 9 of pt III of the EMP Act addresses the circumstances in which a document is unavailable in a civil proceeding. Section 89A defines what it is for a document to be unavailable in a civil proceeding. Section 89B provides that in a civil proceeding a court may make various orders if a document is unavailable in order to ensure fairness to all parties to the proceeding having regard to the matters set out in s 89C. Under s 89C, before making an order, the court must have regard to the circumstances in which the document became unavailable, the impact of its unavailability, and any other matter that the court considers relevant. Section 89D provides that, despite anything to the contrary in the VCAT Act, the division applies to a proceeding in VCAT ‘as if a reference to a civil proceeding were a reference to a proceeding in the Tribunal’ and ‘a reference to the court were a reference to the Tribunal.’

The provisions in div 9 of pt III provide another example of where the use of the term ‘civil proceeding’ in the EMP Act is dependent upon its immediate context.

In my opinion, the other provisions of the EMP Act do not provide much assistance in ascertaining the meaning of s 28(2) although, when examined through the prism of the legislative history, they provide support for the proposition that, where the provisions of the EMP Act were intended to extend beyond the curial process, that occurred expressly.

Legislative history

In arriving at his conclusion that s 28(2) only applies to a suit, action or proceeding brought in a court, Gillard J was heavily influenced by the legislative history of the provision. Essentially, his Honour reasoned that since its first iteration in 1857,[104] the phrase ‘suit action or proceeding’ has referred to court process and that, where the legislature has sought to extend the operation of the provision, it has done so expressly.[105] Gillard J also referred to a series of cases where the privilege had been described as a ‘curial’ one pertaining to courts.[106]
[104]Law of Evidence Consolidation Act 1857 s XVIII.
[105]RWH [2005] VSC 225 [55].
[106]Ibid [67]−[71], referring to Andasteel Constructions Pty Ltd v Taylor [1964] VR 112, 114 (Gillard J); Carusi v Housing Commission [1973] VR 215, 218 (Lush J); Hare v Riley [1974] VR 577, 580 (Norris J); Elbourne v Troon Pty Ltd [1978] VR 171, 175 (Jenkinson J).

It is to be remembered that the EMP Act was originally titled the Evidence Act1958 and dealt with most of the rules of evidence that governed the calling of witnesses and the adducing of evidence. When the Evidence Act 2008 was passed as a step towards a uniform evidence law, it contained all the common form provisions. Various provisions covering a diverse range of matters that were not in common form remained in the Evidence Act1958, which, as mentioned, was renamed the EMP Act.

It is useful to identify some aspects of s 28(2) and the place it occupied within the Evidence Act 1958 before the enactment of the Evidence Act 2008.

The Evidence Act 1958 prescribed rules of evidence and procedure. Not all of the rules it prescribed operated in all contexts. Some rules were said to apply in ‘legal proceedings’,[107] others in ‘criminal proceedings’,[108] and others in ‘civil proceedings’.[109] It is also clear that certain provisions of the Evidence Act 1958 applied outside of courts and, in particular, at least in some respects, to ‘persons acting judicially’, which included persons having by law the authority to hear, receive and examine evidence.[110]
[107]See, eg, Evidence Act 1958 ss 21L, 55A, 58B, 73, 87, 130 (as in force immediately prior to the commencement of s 3 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009).
[108]Ibid s 26, pt IIA div 3, s 55(2) (as in force immediately prior to the commencement of s 3 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009).
[109]Ibid ss 89A, 90 (as in force immediately prior to the commencement of s 3 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009).
[110]See the definition of ‘person acting judicially’ in s 3 of the Evidence Act 1958 (as in force immediately prior to the commencement of s 3 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009).

Part I of the Evidence Act 1958 was titled ‘The means of obtaining evidence’ and pt II ‘Witnesses’. Division 1 of pt II dealt with the issue of who was competent and compellable to give evidence under the title ‘Who may testify’. Division 2 of pt II, which included s 28, was titled ‘Privileges, disabilities and obligations of witnesses’. The provisions in this division dealt, among other things, with marital privilege.[111]
[111]Evidence Act 1958 s 27 (as in force immediately prior to the commencement of s 3 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009).

As enacted in 1958, the heading to s 28 read ‘Confessions to clergymen and medical men’. As its title suggested, the section provided for a form of privilege relating to both medical confidences and confessions made to clergy.

Section 28(1) relevantly provided that no clergyman may, 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 in his professional character. By contrast, s 28(2) provided that no doctor may, without the consent of his patient, divulge in ‘any civil suit action or proceeding’ any information that he had acquired.

It is notable that the clerical privilege applied in ‘any suit action or proceeding whether civil or criminal’ whereas medical privilege only applied in a ‘civil suit action or proceeding’. In 1987, the medical privilege was also extended to ‘an investigation by a Complaints Investigator under the Accident Compensation Act 1985’.[112]
[112]Accident Compensation (Amendment) Act 1987 s 105.

The contrast in language between s 28(1) and (2) presents difficulties for the Board’s construction. The Board contended that civil proceedings do not include proceedings that are brought for the benefit of the public. In part, it relies on the exclusion of criminal proceedings in support of that construction. However, before s 28(1) was repealed and re-enacted as s 127 of the Evidence Act 2008, it provided that clerical confidence was protected in both civil and criminal proceedings.

The type of proceedings that the Board submits now falls outside of s 28(2) would have fallen within s 28(1). There would certainly be no basis for reading down the phrase ‘civil proceedings’ in s 28(1). On the Board’s construction, when s 28(1) was repealed, it contracted the meaning of the phrase ‘civil suit action or proceeding’ in s 28(2). On an alternative view, before the repeal of s 28(1), the phrase ‘civil proceedings’ had a different meaning in s 28(1) and (2). That would be a surprising construction.

On the view that I favour, s 28(1) and (2) were rules of evidence that were never intended to capture regulatory or administrative processes that did not determine private rights in an inter partes context .

That view, as Gillard J observed, is supported by a number of authorities in this Court. In Andasteel Constructions Pty Ltd v Taylor (‘Andasteel’),[113] the plaintiff employer sought to recover compensation paid to the widow of a deceased employee as a result of an industrial accident. 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. An issue that arose was the nature of the privilege under s 28(2) and whether it might have passed to the deceased worker’s estate, with the consequence that the estate could consent to the provision of the medical evidence. In the course of holding the evidence inadmissible, Oliver Gillard J observed that 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.’[114]
[113][1964] VR 112.
[114]Ibid 114.

This observation of Oliver Gillard J in Andasteel was referred to, without criticism, in the later cases of Carusi v Housing Commission[115] and Hare v Riley.[116] Elbourne v Troon Pty Ltd[117] concerned objections to production made by doctors who had been sued by an employer seeking contribution in a proceeding for damages brought by an injured employee. There, Jenkinson J expressly accepted Oliver Gillard J’s characterisation of s 28(2) as a curial privilege available only in a court.[118]
[115][1973] VR 215, 218 (Lush J).
[116][1974] VR 577, 580 (Norris J).
[117][1978] VR 171 (Jenkinson J).
[118]Ibid 175.

Although I too would adopt Gillard J’s characterisation of s 28(2) as a ‘curial’ privilege, I would depart from Andasteel and RWH to the extent that those decisions stand for the proposition that s 28(2) applies only to proceedings in a court. For the reasons that I have explained above at [72] to [74], the function of determining rights in a civil suit, action or proceeding may be performed, at least in the State context, by forums other than courts.

The consequences of capturing disciplinary proceedings within s 28(2)

The Board relied heavily on what it submitted would be the absurd consequences of capturing disciplinary proceedings brought in the public interest within the operation of s 28(2). The Board submitted that the regime for the regulation of medical practitioners would be thwarted if all relevant evidence is not available to VCAT. Senior counsel for the Board placed that supposed consequence at the forefront of his argument, identifying it as the major matter determining the question of construction.

Of course, s 28(2) will always operate to deny relevant evidence to the parties to a proceeding to which it applies. In the case of medical disciplinary matters, the consequences of that may be very significant. However, the consequences even in those matters were, in some respects, perhaps overstated.

It is to be expected that most patients who make a notification to the Board would be prepared to give their consent to the Board accessing relevant medical records. Even in those cases where the patient’s consent is withheld or withdrawn, there are other avenues open to the Board and VCAT to obtain relevant material, as Dr Kemp submitted.

First, the Board is able to obtain relevant material for the purpose of its investigation into a notification or own motion inquiry before it refers any matter to VCAT.[119] Relevant material may be obtained either from the medical practitioner or under warrant.
[119]National Law s 160, sch 5.

Once a matter has been referred to VCAT, if VCAT considers it necessary to obtain further evidence (whether to supplement existing evidence or on account of new issues arising in the proceeding), VCAT could issue a summons to the patient and evidence could be elicited from that patient about medical treatment.[120] Section 28(2) of the EMP Act would have no application to that evidence.
[120]See VCAT Act s 104.

These various avenues open to the Board and VCAT to obtain relevant evidence mean that it is unlikely that a disciplinary proceeding before VCAT would be wholly thwarted or substantially impeded if such proceedings were captured by s 28(2).

However, I do agree that the consequences of denying access to material in a regulatory or administrative context are unlikely to have been intended by the legislature.

Section 106 of the VCAT Act

Before the hearing of the application for leave to appeal, the Court sought submissions on the possible operation of s 106 of the VCAT Act. It will be recalled that s 106 provides that, subject to immaterial exceptions, a person is excused 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.

Neither party submitted that s 106 was relevant to either the construction of s 28(2) of the EMP Act or the question of whether, in the event a summons is issued, a doctor could rely on s 106 to resist production of documents to VCAT. For that reason, it is not necessary to dwell on the operation of that provision and it is not necessary to form a concluded view.

It is sufficient for me to state that I agree with the submissions advanced by the Board, that s 106 only applies in circumstances where the claim for privilege would be available in all proceedings in the Supreme Court. Relevantly for present purposes, it is clear that s 28(2) does not apply to a criminal prosecution in the Supreme Court.

However, s 106 does have some relevance to the present question of construction. It has to be read in the context where, by operation of s 98 of the VCAT Act, the rules of evidence do not apply and VCAT can inform itself in any way it sees fit. Section 106 operates to preserve privileges that would apply in all proceedings in the Supreme Court, and s 98 has to be read in that light. For example, s 106 would operate to preserve in VCAT proceedings legal professional privilege, the privilege against self-incrimination, the privilege against exposure to penalties, public interest immunity, and ‘without prejudice’ privilege.

Given that, as both parties submitted, s 28(2) is not picked up by s 106, and does not create a substantive right, the possible operation of s 28(2) in the context of VCAT proceedings has to confront the fact that VCAT is not bound by the rules of evidence.

The Board’s referral to VCAT is not a ‘civil suit action or proceeding’ within the meaning of s 28(2)

Having set out those aspects of s 28(2), it is necessary to address whether a referral under the National Law is a civil suit, action or proceeding.

Functionally, the role performed by VCAT on a referral is very similar to that performed by the Board in circumstances where there is an allegation of unsatisfactory conduct rather than professional misconduct. It involves the assessment of whether conduct falls below the applicable standards and, if so, what disposition (if any) should follow. The procedural steps in VCAT are more formal and there are differences in process but the nature of the function is in many respects the same.

Putting to one side the differing levels of seriousness, at both levels the process involves an assessment of a practitioner’s conduct against recognised standards, the application of rules of procedural fairness, the making of findings of fact, and the making of a disposition. It was not suggested that, in circumstances where this process is undertaken by the Board, the process before the Board would be a civil proceeding.

I have come to the conclusion that, in hearing and determining a matter referred to it by the Board, VCAT is not involved in a process that represents a curial adjudication of private rights. That is because:

(m) the VCAT proceeding is regulatory in nature, and serves a public purpose by enforcing standards applicable to health practitioners;

(n) the proceeding is not a dispute inter partes. VCAT is hearing a matter referred to it for determination by a regulatory body that performs a public function and has no private interest in the outcome of the proceeding;

(o) relatedly, the outcome of the proceeding is not determinative of private rights. The right to practise as a registered health practitioner, and the conditions on which that may be allowed to occur, involve the regulation of a public licence rather than the conferral of a private right; and

(p) the rules of evidence, and the practices and procedures that apply in courts, have no application (except to the extent that they are adopted by VCAT).

I am fortified in my conclusion that s 28(2) does not apply in the VCAT proceeding against Dr Kemp by the undesirable consequences that would result if VCAT’s ability to obtain medical records were to be circumscribed by the application of that provision. Although I do not accept that the consequences would be as grave or insurmountable as suggested by the Board, the effective enforcement of the regulatory regime created by the National Law plainly depends on a decision maker having access to relevant evidence, which in this context will likely include medical records. In that regard, it is, in my view, significant that the Board’s ability to obtain medical records prior to a referral to VCAT is not subject to the limitation imposed by s 28(2).

Conclusion

In resolving the question of construction raised on this appeal, I have had regard to the text and purpose of s 28(2), its legislative history, and the consequences of a construction that would capture disciplinary proceedings in VCAT. For the reasons I have given, I have concluded that s 28(2) does not apply to the hearing and determination in VCAT of the disciplinary charges against Dr Kemp.

I would allow the appeal, and order that the appeal brought by Dr Kemp under s 148 of the VCAT Act be dismissed.

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Medical Board of Australia v Dr Geoffrey Kemp [2018] VSCA 168

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[2018] VSCA 168

29 June 2018