Medical Board of South Australia v Fisher

MEDICAL BOARD OF SOUTH AUSTRALIA v FISHER & ORS
[2000] SASC 92

Full Court: Duggan, Nyland and Bleby JJ

These appeals arise out of proceedings taken for discovery of documents before action. Each of the respondents is infected with Hepatitis C. They had been treated by Dr Stephen Rabone at the Barmera District Hospital in 1990 and 1991, and had been injected by him with narcotic medication which they understood to be pethidine.
In the course of investigating this matter information was obtained which indicated that limitations had been placed upon Dr Rabone’s registration, which related to matters of self-treatment and self-administration of medication and as to the obtaining of appropriate medical advice regarding his ill health.
On 6 November 1998, the respondents took out an application for discovery in the Magistrates Court at Berri. The defendants to that action were the South Australian Health Commission (the Health Commission) and the present appellant, the Medical Board of South Australia (the Board). The action was taken against the Health Commission as the body which supervises the activities of the Barmera District Hospital. The action was taken in respect of the Board as the body which allowed the registration of Dr Rabone, and which may have conducted an inquiry into Dr Rabone or placed restrictions upon his ability to practise during the period of his registration as a medical practitioner. Discovery was specifically sought from the Board as to those matters.
The application was called on for hearing at Berri and then adjourned to Adelaide to permit the Health Commission and the Board to file affidavits. In an affidavit sworn on 17 December 1998, the Registrar of the Medical Board, Mr David Wilde, disclosed that the Board had in its possession, custody or power, the following documents which related to the registration of Dr Rabone as a medical practitioner:
1.... Notice of suspension from practice as a person registered under the Medical Practitioners Act 1983, dated 2 February 1989.
2.... Memorandum from Medical Board of South Australia to medical boards in other States, dated 2 February 1989.
3.... Application for reinstatement of registration received by Medical Board on 28 March 1989.
4.... 1989 Annual Practising Certificate - limited registration - expiry date 31 December 1989.
5.... Memorandum from Medical Board to medical boards in other States dated 15 March 1990.
6.... Letter from Medical Board to Dr S Rabone, dated 20 June 1990.

In relation to the application for disclosure of documents relating to restrictions placed upon Dr Rabone, Mr Wilde disclosed a further 33 documents which included correspondence passing between Dr Rabone and the Board, undertakings to the Board signed by Dr Rabone, a number of medical reports, and correspondence with solicitors.
Mr Wilde claimed that all of the documents referred to in his affidavit were prepared in consequence of an investigation conducted by the Board pursuant to s 20A of the Medical Practitioners Act 1983. As such he objected to the production of them on the basis that they were not relevant to these proceedings.
He further claimed that the documents were privileged from production on the grounds of legal professional privilege and that the production of the documents in these proceedings was against the public interest. He also claimed that the documents were “brought into existence in confidence and full and frank communications between the Board and medical practitioners would be discouraged if production of communications between them is later required for civil proceedings”. He maintained that the production of the documents for the purpose of civil proceedings would be contrary to the clear legislative intent of the Medical Practitioners Act, 1983, and would frustrate the statutory purpose for which the correspondence came into existence. He said that the “aims of the Medical Practitioners Act 1983 and the functions of the Board would not be properly fulfilled and complainants may feel reluctance in making a complaint known to the Board if there was a prospect that disclosure of the nature of the complaint and all documents of and incidental thereto were to occur in later civil proceedings”.
On 10 February 1999, Mr Gumpl SM heard argument and then ordered that the documents referred to in the affidavit of Mr Wilde be produced to him for inspection.
On 6 April 1999, following the production of those documents, the magistrate ordered inter alia that “[d]ocuments referred to in affidavit 17.12.98 re (sic) discovered to plaintiff. Order to be stayed 7 days”.
On 12 April 1999, the Crown Solicitor wrote to the solicitor for the respondents on behalf of the Board asking if they would agree to the stay remaining in place, pending the outcome of an application for leave to appeal. The respondents indicated an application to extend the stay would be required. That apparently did not occur and on 13 April 1999, the stay order expired.
On 14 April 1999, Mr Humphries, the solicitor for the respondents, applied to search the file at the Magistrates Court, which included the documents in question. Permission was granted and the documents were made available to Mr Humphries for inspection on the basis of a previous undertaking, the nature of which was not disclosed to us.
On 16 April 1999, the matter was called on before the magistrate (at the request of the Board) for clarification of the orders made on 6 April 1999. The magistrate indicated that his order was clear and had included production/inspection.
On 20 April 1999, the Board issued a summons in this Court seeking leave to appeal against the interlocutory judgment dated 6 April 1999. It also sought a number of ancillary orders, in particular that the documents now in the possession of the respondents’ solicitors be returned pending the determination of the application. That application was marked returnable for 30 April 1999.
On 29 April 1999, the magistrate published remarks dated 28 April 1999, relating to his order for discovery made on 6 April 1999. He made it clear therein that it was his intention that the documents be produced to the respondent’s solicitors. He said “[i]t was implicit in my order that inspection would be available to [the respondents] once the seven days of stay had elapsed and I believe the legal representatives were in no doubt about that - the order would have made no sense otherwise.”
It is appropriate at this juncture to comment on two aspects of the procedures adopted in the Magistrates’ Court.
The first relates to the terms of the Magistrate’s order made on 6 April 1999. At first glance, they were, on their face, confusing. The appellant had given discovery by listing the documents in Mr Wilde’s affidavit of 17 December 1998. The only issue before the Magistrate was whether they should be produced for inspection. In order to determine that question the Magistrate had inspected the documents himself. Despite the fact that the Magistrate ordered that the documents be “discovered” to the respondents, it is plain, as he subsequently said, in effect, that he could only have meant that the documents should be produced for inspection. Regrettably this is a common misuse of terminology.
“Discovery” should be reserved for the process of listing, with particularity sufficient to identify them, documents which (in this case) are “relevant to the proposed action” (Magistrates Court Rules r 20(1)). It is not necessary for present purposes to elaborate on what documents that includes. Discovery should not, however, be confused with production. Not all documents discovered will have to be produced if they are the subject of legal professional privilege, public interest immunity, or if production may be refused on some other ground.
The second aspect of the procedure relates to the inspection by the respondents’ solicitor of the documents whilst they were on the Magistrates’ Court file. The Magistrate’s order for production of the documents for inspection had been made. A stay of that order had expired. For reasons which are not explained, the documents which had been produced to the Magistrate had not been returned to the appellant. They should have been. It was not for the Court to make them available for inspection by the respondents’ solicitor. After the stay had expired, the obligation was on the appellant to produce the documents for inspection. As it happened, the respondents’ solicitor inspected them by other means - a means which should not have been available to him. There was an irregularity in the procedure adopted in the Magistrates’ Court. As it happened, no‑one has seen a document which they were not entitled to. If it had been otherwise, the procedures adopted in the Magistrates’ Court could have led to an injustice.
In any event, it appears that thereafter the application for leave to appeal was called on before Debelle J on 30 April 1999, but was adjourned to 10 May 1999.
On 10 May 1999, Debelle J made orders inter alia requiring the Board to file both in the Magistrates Court and the Supreme Court, a list of further documents relevant to the issues between the parties.
Further consideration was then adjourned to 28 May 1999. In compliance with the order of Debelle J, Mr Wilde swore a further affidavit on 26 May 1999, which set out a further list of documents in the possession, custody or power of the Board relating to Dr Rabone. Some of the documents referred to therein were documents that had already been discovered by the appellant and inspected by the respondents as a result of the magistrate’s earlier order but the list included a substantial number of additional documents.
On 28 May 1999, the application for leave to appeal was called on before Bleby J. It was adjourned sine die on the understanding that the supplementary list of documents would be filed in the Magistrates Court and eventually be consolidated with this application after it had been heard and determined by the magistrate.
On 2 June 1999, the matter came on for further hearing before the magistrate. The Board contended that the documents referred to in Mr Wilde’s second affidavit should not be produced for inspection on the grounds of public interest immunity. In order to determine this matter, the magistrate indicated that he needed to inspect those documents. He ordered that they be produced to the Court by 15 June 1999. The matter was then adjourned to 24 June 1999.
On 29 July 1999, the magistrate made the decision which is the subject of the present appeal. He said:
“Having sighted all documents presented to me and coming to the conclusion that the public interest would be better served by making all relevant material available to those that appear to have suffered significantly at the hands of the doctor in question, I shall allow all documents to be inspected other than the following which are protected under the banner of legal professional privilege.”
He thereafter enumerated the documents which were to be excluded on that ground of legal professional privilege. They are those referred to in para 4(a) of the orders we propose to make. That part of the magistrate’s order was not the subject of any appeal.
On 6 August 1999 the Board filed an application in this court for leave to appeal against the order of 29 July 1999.
On 20 August 1999, the original application for leave to appeal and the second application for leave were called on for hearing before Wicks J. Leave was granted on both applications and they were referred to the Full Court for determination.
At the commencement of the hearing of the appeal Mr Hinton, who appeared for the Board, sought leave to amend the notice of appeal to include a further ground which challenged the validity of Magistrates Court Rules (MCR) r 20. This point had not been taken before the learned magistrate. After hearing argument as to that matter leave to amend was refused and Duggan J, as president of the court, delivered ex tempore reasons with respect thereto. Mr Hinton subsequently abandoned a number of other grounds set out in the notice of appeal. This left two matters for determination by this Court. First, whether there was any power before action, to order inspection of documents or production for the purposes of inspection and, secondly, whether the magistrate had erred in the exercise of his discretion in considering whether or not the documents should or should not be produced on account of public interest immunity.
The magistrate said, with respect to his order of 6 April 1999, that “a discovery order necessarily presupposes the right of inspection. In this case, it was not necessary for the proposed plaintiff to proceed via Rule 72 since I was in possession of the documents and would obviously make an order either allowing discovery, that is, inspection or not”.
The power to order discovery prior to instituting an action is contained in MCR r 20. It provides:-
“A person intending to bring an action may, by notice in writing to another person, request the other person to make discovery, and disclose the present whereabouts, of any document or property that is relevant to the proposed action.” [emphasis added]
There is, however, no reference therein to inspection. Nor is there any reference to inspection in any other rules which appear in the section headed “Pre Claim Procedures”. The power to inspect is contained in MCR r 72(1) which is in the following terms:-
“A party must make a discovered document or property that is in the possession, custody or power of that party, available for inspection by any other party within 7 days of service of a notice in writing requesting inspection.” [emphasis added]
Mr Hinton relied on the terminology in this rule to support his argument that the use of the term “party” as opposed to “person” in MCR r 20 created a significant distinction between the two rules. Mr Hinton submitted that MCR r 20 was limited by its terms to discovery only. The reference to a “party” in MCR r 72 limited the applicability of that rule to proceedings in which an action had been commenced. In this case there were no proceedings on foot at the time of the making of the order. The magistrate had, therefore, fallen into error in making the order for inspection.
In our view, however, there is no justification for reading down MCR r 72 so as to exclude therefrom a party to discovery proceedings before action. Discovery without inspection would appear to be somewhat futile. A potential litigant would be placed in a position of having to institute an action without sighting documents potentially relevant to the decision as to whether or not it would be appropriate to take those proceedings. Although MCR r 20 would appear to be limited to discovery we consider that once a “person” has commenced proceedings by way of pre-action discovery he/she can call in aid MCR r 72 to obtain an order for inspection, being at that stage a “party” to that application. The magistrate was therefore empowered to make an order in this case for the inspection or production for inspection of the relevant documents, although the source of power was MCR r 72, not MCR r 20.
We now turn to the question of whether the magistrate erred in making the order for inspection by failing correctly to apply the test as to public interest immunity.
The documents which are the subject of objection fall into three categories which are referred to in Mr Wilde’s second affidavit as follows:-
“(1). Documents ... which relate to persons reporting matters to the Medical Board. If those documents were brought into existence by informants or as a result of informants communicating with the Board and if such documents were to be produced it would discourage other persons from informing the Board of possible unprofessional conduct by medical practitioners which would not be in the interest of the public of South Australia.
(2)[D]ocuments [which] relate to the personal medical condition of Dr Rabone, a medical practitioner, and being of a personal and private nature [and which] ... would discourage medical practitioners to have full and frank discussions and communications with the Board which again would not be in the public interest and also relate to the medical conditions of Dr Rabone’s patients which release would be contrary to the public interest.
(3)... [D]ocuments [which] relate to investigations conducted by the Board to decide whether disciplinary action was appropriate. Also in the circumstances production of such documents would also not be in the public interest particularly as witnesses are forced by the provisions of the Medical Practitioners Act 1983 to truthfully answer questions put to them before the Board.”
Mr Wilde repeated the blanket claim made in his earlier affidavit that the production of any of these documents for the purposes of civil proceedings would be contrary to the clear legislative intent of the Medical Practitioners Act 1983 and would frustrate the statutory purpose for which the correspondence came into existence, and that “[t]he aims of the Medical Practitioners Act 1983 and the functions of the Board would not be properly fulfilled and complainants [would] feel reluctan[t] in making a complaint known to the Board if there was a prospect that disclosure of the nature of the complaint and all documents of and incidental thereto were to occur in later proceedings”.
The principles applicable to a claim of public interest immunity have recently been distilled by Debelle J in Adelaide Brighton Cement Ltd v State of South Australia & Anor (1999) 204 LSJS 325 at 328, as follows:
“(1).. The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it: Sankey v Whitlam (1978) 142 CLR 1 at 38.
(2)However, the court recognises that there are two aspects to the public interest which may conflict. They were described by Lord Reid in Conway v Rimmer [1968] AC 910 at 940 in these terms:
.................. ‘There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’
......... Those observations were adopted by Gibbs ACJ in Sankey v Whitlam at 38. Stephen J expressed the competition between these two aspects of the public interest in these terms in Sankey v Whitlam at 48-49:
.................. ‘These principles, stated in their broadest form, each reflect different aspects of the public weal. Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.’
(3)... It is the duty of the court, not the privilege of the executive, to determine whether a document will be produced or may be withheld: Sankey v Whitlam at 38, 58-59, 95-96. As Stephen J said in Sankey v Whitlam at 58, a claim to Crown privilege has no automatic operation; it always remains a function of the court to determine that claim.
(4)The court determines whether a document should be produced or withheld by deciding whether the public interest which requires that the document should not be produced outweighs the public interest that a court in performing its functions should not be denied access to relevant evidence: Sankey v Whitlam at 38-39. In Commonwealth v Northern Land Council at 616 the court approved the following observations of Gibbs ACJ in Sankey v Whitlam at 43.
‘I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interest of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.’
......... See also Sankey v Whitlam per Stephen J at 63 - 64 and per Mason J at 98 - 99.
(5)When carrying out this balancing task, the court will give weight to the Minister’s opinion that the documents should not be produced but will form its own opinion whether the public interest will be the better served by production or non-production: Sankey v Whitlam at 44-45, 96.
(6)... Those who urge privilege on the ground of public interest immunity for classes of documents, regardless of particular contents, carry a heavy burden: Sankey v Whitlam per Stephen J at 62; see also Lord Reid in Rogers v Home Secretary [1973] AC 388 at 400. Speaking generally, a claim of public interest immunity for a class of documents will be upheld only if it is really necessary in the public interest or for the proper functioning of the public service to withhold the documents from production: Sankey v Whitlam at 39.
(7)... [T]here can be no single rule of thumb by which to determine whether a document should be produced for inspection ... The fundamental principle is that documents may be withheld from production only if, and to the extent that, the public interest renders it necessary ...
(8)... It is a corollary of the general rule stated in proposition (1) that a court may intervene and prevent disclosure of a document whose production would be contrary to the public interest even if no claim is made by a Minister or other high official that its production should be withheld. The court has a duty to prevent disclosure without the intervention of any Minister if possible serious injury to the national interest is readily apparent: Sankey v Whitlam at 44, 58-59. However, it would be exceptional for the court to intervene where the Minister had considered the question and decided that no objection should be taken: Sankey v Whitlam at 44-45.
(9)It is now beyond question that the court has power to inspect the document or documents privately: Sankey v Whitlam at 46. There is, however, a question whether the court should look at the documents for assistance in the balancing exercise, that is to say, when weighing the two conflicting aspects of the public interest. In some cases, the court might be able to determine that the public interest requires that the documents be withheld from production without inspection of the documents: see Commonwealth v Northern Land Council ... Only in cases where the ministerial affidavit demonstrates with sufficient particularity the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other is it likely that it will be possible to reach such a conclusion: cf Woodhouse P in Fletcher Timber Ltd v Attorney-General at 295. In almost all other cases, an inspection will be necessary. There is a question whether the applicant for production of the document must satisfy some threshold test before the court inspects the documents. Plainly, the documents must be relevant. The question is whether any further or more stringent test is necessary. That question was examined by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404, by Cox J in Legal Services Commission v Trotter at 84-85, and by Toohey J in the dissenting judgment in Commonwealth Northern Land Council at 632-363. Reference should also be made to Conway v Rimmer, Burmah Oil Co Ltd v Bank of England; Air Canada v Secretary of State for Trade; Fletcher Timber Ltd v Attorney-General; and Middleton v State of Wetern Australia. As Toohey J pointed out in Commonwealth v Northern Land Council at 634-635, the process of discovery (in this court, the list of documents) demonstrates the existence and relevance of the documents to the issues in the action. The application for production for inspection is a usual concomitant of the process of discovery. It would seem, therefore, that where there is a claim for privilege on the ground of public interest immunity, the court should without more inspect the documents for the purpose of weighing the competing public interests ...
(10). Once a court has decided ... that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: Sankey v Whitlam at 46 approving Conway v Rimmer ... In addition, it seems prudent to inspect, first, to ascertain whether the relevance of any document is so peripheral that it should not be disclosed and, secondly, to determine whether, despite the fact that production should be ordered, it is necessary to mask part of the document: see para (12) below.
(11)If inspection of documents is necessary, it ought to be carried out by the court and not by any other person before ordering production for inspection ...
(12). In some cases inspection may indicate that it is appropriate to order disclosure but that part of the document should be masked so as not to disclose something which the public interest requires should not be published. The practice was approved in Conway v Rimmer by Lord Reid at 943-944, 946-950 and by Lord Pearce at 988 and in Sankey v Whitlam by Gibbs ACJ at 48 and by Aickin J at 109-110.”

The magistrate’s remarks in this case are relatively brief. In determining that it was appropriate to order inspection, he said:-
“I weighed up the competing considerations, namely, whether harm would be done by the production of the documents and whether justice might be frustrated by the non-disclosure of the documents. I leant towards the latter proposition. It would be unfair to conceal the material contained in the documents, particularly in view of the implications to these and other possible litigants.”
Mr Hinton relied on this passage in particular when submitting that the magistrate had reduced the balancing exercise to one between the parties, as opposed to a consideration of the public interest. In so doing his discretion had miscarried. Mr McRae submitted, however, that the magistrate had merely endeavoured, in a succinct manner, to summarise the principles enunciated in Adelaide Brighton Cement v State of South Australia (supra). Having inspected the documents he had resolved the competing issues in favour of the administration of justice so “that evidence necessary if justice is to be done should be freely available to those who litigate in our courts”.
Mr Hinton’s submission does, however, gain support from further remarks made by the magistrate in his ruling made on 29 July 1999. On that occasion, the magistrate referred to the submission of the Board that its statutory obligation would be hampered or compromised if sensitive documents were not subject to public interest immunity. He said:
“One of the paramount considerations in this case is whether the need for the Board to have available to it full investigative powers uncompromised by the fear of individuals’ identities being exposed outweigh the rights of litigants having at their disposal all available evidence to prosecute their claim. Case law can be no more than instructive; the balancing act which the Court must perform is always confined to the particular facts of the case.”
He went on to say that:
“One of the pertinent facts in this case is that the plaintiffs have contracted a potentially fatal disease because, it is claimed, the doctor in question injected himself, a narcotic addict, then used the same needle to inject the prospective plaintiffs whilst they were under his care.”
And also:
“In 1991, the Board issued a complaint alleging nine offences of unprofessional conduct in regard to different patients.
Could it seriously be suggested that fellow professionals and hospital staff would not report dangerous and unprofessional conduct as serious as the conduct attributed to this medical practitioner because of the possibility that some time later affected patients may wish to have access to the Board files? My view remains that in this particular case the interests of the affected patients must have priority.”
These remarks suggest that the magistrate, in reaching his decision, focused on the private rights of the respondents as potential litigants, rather than considering the issue of public interest. In so doing, he fell into error. As Debelle J made clear in Adelaide Brighton Cement v State of South Australia (supra), the proper test is not to be reduced to a competition between the parties. Rather, it is the need to balance the public interest in withholding sensitive documents from production, against the need for a court, in the performance of its function, to have all relevant evidence available to it.
Before examining the balance of public interest in this case, it is necessary to make some further observations about public interest immunity as it relates to professional bodies such as the Board.
The Board was created by s 6 of the Medical Practitioners Act 1983 (the Act). It is charged with ensuring that the community is adequately provided with medical services of the highest standard and achieving and maintaining the highest professional standards both of competence and conduct in the practice of medicine (s 13). The Board is empowered to conduct investigations (s 20A) and has power to summons witnesses and to require a person to answer questions and to produce documentary or other material at hearings before it (s 20A(2)).
The Board is authorised to investigate complaints alleging that a medical practitioner has practised in a branch of medicine without having or exercising adequate or sufficient knowledge, experience or skill (s 50). In the event that an application is made to it, the Board is also required to determine whether the ability of a medical practitioner to practise medicine is impaired by mental or physical incapacity to such an extent that it is desirable, in the public interest, that an order be made suspending the registration of the practitioner or imposing conditions restricting the right of the practitioner to practice medicine (s 51). Furthermore, the Board is empowered to investigate complaints alleging unprofessional conduct on the part of a medical practitioner (s 54). The Board is given power to reprimand a practitioner under this section or, where the allegations or evidence are sufficiently serious, it may terminate the proceedings and itself lay a complaint before the Medical Practitioners Professional Conduct Tribunal.
It has been held that bodies charged with responsibilities in relation to professional discipline and the maintenance of proper professional standards may be entitled to claim public interest immunity in relation to certain of their functions. (Borg v Barnes (1987) 10 NSWLR 734; Law Institute of Victoria v Irving [1990] VR 429; Finch v Grieve (1991) 22 NSWLR 528 and see generally R v Young [1999] NSW CCA 166 (7 July 1999)). The public interest element in these instances is plain enough. A board such as the Medical Board is charged with important public responsibilities. They include the investigation of unprofessional conduct. There is a clear public interest in the effective performance of these functions. In appropriate cases it will be necessary to uphold claims of public interest immunity where the disclosure of information in the possession of such authorities would be detrimental to the performance of their functions.
Considerations of public policy provide the rationale for the rule relating to the immunity accorded to police informants and there is authority for extending that protection by way of analogy to other informants who provide information to organisations charged with a relevant public duty. The leading English case of D v National Society for the Prevention of Cruelty to Children [1978] AC 171 provides an example. The Society was given statutory power to investigate and initiate proceedings for the protection of children alleged to have been abused. The House of Lords held that there was a public interest in not disclosing the identity of the society’s informants which was analogous to the rule that the identity of police informers is not to be disclosed except where it is necessary to do so in order to establish innocence in a criminal trial. The obvious policy underlying this approach is that potential informers might well be discouraged from providing information if their identities could be revealed. This would have a detrimental effect on the detection and punishment of crime.
The protection of informers is an issue raised by the Registrar in the present case. It is not difficult to appreciate that the protection of informants is of relevance to some of the Board’s functions to which reference has been made. The absence of such protection would have the potential to deter a number of complainants from reporting cases of alleged unprofessional conduct to the Board.
The rigidity of the rule in relation to police informers is apparent from the remarks of McHugh JA in Cain v Glass(No 2) [1985] 3 NSWLR 230 at 248:
“I think that the courts in this State should continue to apply the rule that no question of weighing competing public interests arises when a claim is made that the name of a Police informer should be disclosed. The rule is absolute and is relaxed only ‘where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence’. I have stated the exception in the language of Lord Diplock in D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218.”
It is unnecessary for present purposes to decide whether a rule attended with the same rigidity should be applied to the activities of the Board investigating cases of alleged unprofessional conduct. We think it is sufficient to acknowledge the considerations of public policy arising from the Board’s dealings with informers. When these considerations of public policy apply and there is present also a legitimate forensic purpose in revealing the identity of an informer, the balancing exercise described by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 412 becomes relevant:
“Sankey v Whitlam (1978) 142 CLR 1 establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.”
Such considerations may be relevant in a case where the Board objects to produce statements obtained from volunteers who complain to the Board about the conduct of a particular medical practitioner.
The Board will no doubt deal with a wide range of “informants”, from a person who merely provides hearsay information which prompts an investigation by the Board, to a person who is the only person who can give evidence of a particular act of alleged misconduct, and who makes a formal statement reduced to writing about that misconduct and delivers it to the Board. The public interest may require a range of solutions to a claim for production of documents embodying such information. This will depend on the nature of the information, by whom it was supplied, the circumstances of its supply and the purpose for which it is required.
It may be appropriate in some circumstances to direct production of the document but also to order that anything tending to identify the author of the document or the maker of the statement be concealed. A court may need to review such an order after the document has been inspected and the nature of its contents is known by the person to whom it is produced. Different public interest questions may then arise for consideration.
No order was made which would protect the identity of informants in the present case from disclosure. The Board’s objection to production of documents on this ground does not seek to differentiate between the various classes of document. The basis of any claim objecting to disclosure of the identity of an informer should be clearly articulated in each case. It is quite unsatisfactory for a claim for public interest immunity to be made in the general terms claimed by the Board in this case. The Board appeared to approach the matter on the basis of a broad class of documents, regardless of the particular contents of the documents or the circumstances in which they were produced. If the Board’s claim were to be granted, it would be tantamount to granting a general immunity in respect of all documents provided to a medical board, regardless of the basis upon which they came into existence and regardless of their relevance to other proceedings.
In order to assist in resolution of the appeal this Court, in accordance with the obligation identified in Adelaide Brighton Cement v State of South Australia, has inspected the documents which are the subject of the present claim. It is apparent from a perusal of the documents concerned that some information has been volunteered to the Board by concerned members of the public, either verbally and recorded in note form, or in letter form. Some has been supplied at the request of the Board or its duly authorised officers. Much has been supplied by the medical practitioner himself. Other information, in the form of statements or notes, has been provided to the Board under compulsion pursuant to s 20A of the Medical Practitioners Act. In this class is included a number of statements by staff of the Barmera District Hospital provided to their employer, and which in turn have been produced to the Board by the hospital under powers of compulsion. Many of the suppliers of information have already been identified by the Board in the list of documents supplied in accordance with the requirement to give discovery.
In respect of the information volunteered to the Board, it is difficult for us to determine its significance in relation to the claim by the present respondents. It may be material to their claim. Insufficient information has been provided about that information, its source and its possible consequences for the respondents’ claims for us to bring to bear a proper consideration of the public interest. The claim for privilege has not been made out in respect of the contents of the documents. In our view, such documents should be produced to the respondents, but any reference to the identity of the informant who provided the information contained in the documents should be concealed. It will be open to the respondents to make further application to the Court or, if the Board is joined in the respondents’ proceedings, in those proceedings, for production of the complete documents. If that occurs, further information will need to be placed before the Court in respect of each such document before a proper assessment of the public interest can be made.
Documents containing information requested by the Board or its duly authorised officer should be produced to the respondents. There can be no question of such information being produced by an informant volunteering such information as might justify a public interest objection. It was obtained under compulsion of s 20A of the Act or in the knowledge that it could be so compelled.
In particular, this applies to the statements and notes made by the staff of the Hospital and other documents produced by the Hospital to the Board. Such documents may have been provided voluntarily to the Hospital, perhaps even in confidence. However, the Board itself has exercised its powers of compulsion to require the documents to be produced to it. It cannot now shelter behind the protection of informers in objecting to produce such documents supplied to it in that way.
The same applies to information supplied by Dr Rabone himself. He too is subject to the compulsion of s 20A of the Act, and although the information may have been produced voluntarily, the Board has means of requiring its production. In any event, whilst it is important for the Board to encourage frankness on the part of medical practitioners whose conduct or performance as practitioners might be of relevance to the Board, this is to be weighed against the desirable objective of enabling a court to ascertain the truth in a case involving allegations of serious professional negligence. In this case that may well have resulted in patients contracting a potentially fatal disease. For these reasons there is no ground on which objection can be taken to the information provided by Dr Rabone.
There may be other classes of documents which we have not mentioned but the author of which has been mentioned in the list of documents provided by the Board. Any confidentiality as to the supplier of that information would appear to have been waived by the Board specifically identifying the author in the list of documents. There is no reason why, in the public interest, they should not now be produced to the respondents.
The third ground of objection taken by the Registrar is difficult to follow. The mere fact that the documents to which he refers relates to investigations conducted by the Board to decide whether disciplinary action was appropriate does not give rise to a relevant consideration founded upon the public interest. This is not a case in which it is suggested that disclosure of information would impede the investigation against the doctor himself. (cf. Zarro v Australian Securities Commission (1992) 36 FCR 40 at 63). Nor is it suggested that the material would disclose methods of investigation with the effect that future investigations in other matters would be impeded. The fact that witnesses before the Board might be under a compulsion to answer questions does not seem to support the claim for public interest immunity.
For these reasons we make the following orders:
That the appeals against the orders of the Magistrates Court of South Australia made on 6 April 1999 and 29 July 1999 be allowed.
That the said orders be set aside.
That subject to paragraph 4 of this order, the documents referred to in the affidavits of David Wilde sworn on 17 December 1998 and 26 May 1999 be produced for inspection by the respondents or their solicitors within 14 days of the date of this order.
That paragraph 3 of this order be subject to the following qualifications:
(a).... Those documents numbered 75, 96, 97, 99, 102, 108, 109, 112, 118, 122, 145, 177, 178, 179, 180, 181, 182, 183, 184, 185 and 185(a) referred to in the affidavit of David Wilde sworn on the 26th day of May 1999 need not be produced for inspection;
(b)Any documents containing information supplied to the appellant voluntarily and not at the request of the appellant (other than statements, or letters prepared by and notes of conversations with Dr Stephen Rabone) shall be produced for inspection in such a manner as to conceal the identity of the provider of the information contained therein.
That any dispute arising out of the qualifications contained in paragraph 4(b) of this order shall be referred to the Magistrates Court of South Australia for resolution upon the application of either the appellant or the respondents.
That the respondents have liberty to apply to the Magistrates Court of South Australia for any further order consequent upon the production for inspection of the documents discovered by the appellant.
We shall hear further from counsel as to the costs of the appeal.

[2000] SASC 92

12 April 2000

Key Legal Topics

Areas of Law

Civil Litigation & Procedure

Evidence Law

Legal Concepts

Discovery & Disclosure

Abuse of Process

Public Interest Immunity

Res Judicata