Medical Board Of Western Australia and A Medical Practitioner
[2008] WASAT 209
•12 SEPTEMBER 2008
MEDICAL BOARD OF WESTERN AUSTRALIA and A MEDICAL PRACTITIONER [2008] WASAT 209
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 209 | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:384/2005 | 21 JULY 2008 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 12/09/08 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application to vary non-publication order dismissed | ||
| A | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA A MEDICAL PRACTITIONER |
Catchwords: | Non-publication order Power of Tribunal to prohibit publication of 'subject matter' of an application Scope of s 62(1)(a), s 62(1)(b), s 62(1)(c) of the State Administrative Tribunal Act 2004 (WA)- Merit of maintaining such an order |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 3, s 32, s 34, s 35, s 52(4), s 54(6), s 60, s 61, s 62, s 66, Pt 4, s 155, s 167 State Administrative Tribunal Regulations 2004 (WA), reg 5 Victorian Civil Administrative Tribunal Act 1998 (Vic), s 101 |
Case References: | Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171 Hearne v Street [2008] HCA 36 Herald & Weekly Times Ltd v Magistrates' Court of Victoria [1999] VSC 232 Herald & Weekly Times Ltd v Magistrates' Court of Victoria [2004] VSC 194 Jeffery and Corrections Victoria and The Herald and Weekly Times Limited [2004] VCAT 1211 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Re Bromfield; Ex parte Western Australian Newspapers Ltd (1991) 6 WAR 153 Scott v Scott [1913] AC 417 |
Orders | 1. The application of Nationwide News Pty Ltd to discharge or vary the non-publication orders in these proceedings by removing the first sentence of the order concerning the subject matter of the application is dismissed.,2. The existing non-publication orders are amended as follows:,(a) Until further order the subject matter of this application and the identity of the practitioner is not to be disclosed, distributed, or published in any way without the express authorisation of the Tribunal. ,(b) The identity of patients the subject of this application is not to be disclosed, distributed or published in any way without the express authorisation of the Tribunal. |
Summary | The State Administrative Tribunal made a non-publication order in respect of the 'subject matter' of a number of applications made by the Medical Board of Western Australia in relation to a medical practitioner, on the basis that it was required to avoid endangering the physical or mental health or safety of the medical practitioner. Nationwide News Pty Ltd applied to the Tribunal to vary the non-publication order such that it would protect the identity of the medical practitioner but not the 'subject matter' of the applications. Nationwide News submitted that the Tribunal does not have the power to make a nonpublication order in terms which include the 'subject matter' of proceedings, or alternatively that in the circumstances such an order ought not to have been made.,The Tribunal examined the terms of s 61 and s 62 of the State Administrative Tribunal Act 2004 (WA) and the structure of those provisions. The Tribunal considered that the power in s 62(1)(b) to order non-publication of the 'contents of any documents produced to the Tribunal' gave the Tribunal power to order non-publication of the 'subject matter' of an application.,Further, the Tribunal considered, on the basis of psychiatric evidence, that a non-publication order in terms of the 'subject matter' of the applications was necessary to avoid endangering the physical or mental health and safety of the practitioner.,Accordingly, the Tribunal dismissed the application of Nationwide News. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and A MEDICAL PRACTITIONER [2008] WASAT 209 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 21 JULY 2008 DELIVERED : 12 SEPTEMBER 2008 FILE NO/S : VR 384 of 2005
- VR 81 of 2006
VR 97 of 2006
VR 170 of 2006
VR 17 of 2007
VR 18 of 2007
VR 71 of 2007
VR 72 of 2007
VR 73 of 2007
VR 74 of 2007
VR 130 of 2007
VR 131 of 2007
VR 132 of 2007
VR 51 of 2008
- Applicant
AND
A MEDICAL PRACTITIONER
Respondent
(Page 2)
Catchwords:
Non-publication order - Power of Tribunal to prohibit publication of 'subject matter' of an application - Scope of s 62(1)(a), s 62(1)(b), s 62(1)(c) of the State Administrative Tribunal Act 2004 (WA)- Merit of maintaining such an order
Legislation:
State Administrative Tribunal Act 2004 (WA), s 3, s 32, s 34, s 35, s 52(4), s 54(6), s 60, s 61, s 62, s 66, Pt 4, s 155, s 167
State Administrative Tribunal Regulations 2004 (WA), reg 5
Victorian Civil Administrative Tribunal Act 1998 (Vic), s 101
Result:
Application to vary non-publication order dismissed
Category: A
Representation:
Counsel:
Applicant : Ms FA Stanton
Respondent : Mr ML Bennett
Intervenor : Mr JD MacLaurin
Solicitors:
Applicant : McCallum Donovan Sweeney
Respondent : Lavan Legal
Intervenor : Edwards Wallace
Case(s) referred to in decision(s):
Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171
(Page 3)
Hearne v Street [2008] HCA 36
Herald & Weekly Times Ltd v Magistrates' Court of Victoria [1999] VSC 232
Herald & Weekly Times Ltd v Magistrates' Court of Victoria [2004] VSC 194
Jeffery and Corrections Victoria and The Herald and Weekly Times Limited [2004] VCAT 1211
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Bromfield; Ex parte Western Australian Newspapers Ltd (1991) 6 WAR 153
Scott v Scott [1913] AC 417
(Page 4)
Summary of Tribunal's decision
1 The State Administrative Tribunal made a non-publication order in respect of the 'subject matter' of a number of applications made by the Medical Board of Western Australia in relation to a medical practitioner, on the basis that it was required to avoid endangering the physical or mental health or safety of the medical practitioner. Nationwide News Pty Ltd applied to the Tribunal to vary the non-publication order such that it would protect the identity of the medical practitioner but not the 'subject matter' of the applications. Nationwide News submitted that the Tribunal does not have the power to make a nonpublication order in terms which include the 'subject matter' of proceedings, or alternatively that in the circumstances such an order ought not to have been made.
2 The Tribunal examined the terms of s 61 and s 62 of the State Administrative Tribunal Act 2004 (WA) and the structure of those provisions. The Tribunal considered that the power in s 62(1)(b) to order non-publication of the 'contents of any documents produced to the Tribunal' gave the Tribunal power to order non-publication of the 'subject matter' of an application.
3 Further, the Tribunal considered, on the basis of psychiatric evidence, that a non-publication order in terms of the 'subject matter' of the applications was necessary to avoid endangering the physical or mental health and safety of the practitioner.
4 Accordingly, the Tribunal dismissed the application of Nationwide News.
Issues
5 The issues the subject of this decision, which is made in the course of proceedings yet to be finally determined between the Medical Board of Western Australia (Board) and a medical practitioner, is whether the Tribunal has the power to make, and if it has, whether it should maintain, a non-publication order already made in relation to the proceedings, in the following terms:
(1) Until further order the subject matter of this application is not to be disclosed, distributed, or published in any way without the express authorisation of the Tribunal.
(Page 5)
- (2) The identity of patients the subject of this application is not to be disclosed, distributed or published in any way without the express authorisation of the Tribunal.
Background to the issues
6 The Board commenced a number of separate proceedings against the practitioner during 2005, 2006 and 2007. In all there are 13 proceedings that were commenced between 2005 and 2007.
7 In 2008, the Board commenced a fresh proceeding against the practitioner. In that proceeding factual issues unrelated to the subject matter of the earlier proceedings were raised. The Tribunal has listed this latest proceeding for final hearing before the determination of the other matters.
8 In the earlier proceedings, the Tribunal made a non-publication order, amongst other things, in respect of their subject matter in the terms described above. On 18 December 2007, the Tribunal extended that non-publication order so that it applied to all the proceedings between 2005 and 2007. On 25 March 2008 the Tribunal ordered that the nonpublication order should be extended to apply to the 2008 proceeding and confirmed this on 29 April 2008.
9 Late in 2007, the Attorney General made an application as intervener opposing the making or extension of the non-publication order in relation to the proceedings commenced by the Board between 2005 and 2007.
10 Section 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) enables the Tribunal to make an order that:
… anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
11 Section 62(1) of the SAT Act provides that s 62 applies to any evidence given before the Tribunal, the contents of any documents produced to the Tribunal and any information that might enable a person who has appeared before the Tribunal to be identified.
12 Section 62(3) directs attention, in relation to the exercise of this power, to the circumstances described in s 61(4). A particular circumstance described by s 61(4)(d) is:
to avoid endangering the physical or mental health or safety of any person.
(Page 6)
13 The Tribunal was of the view, in light of the psychiatric evidence from two well qualified psychiatrists, including one called by the Board, that to permit the subject matter of each of the applications before the Tribunal to be published had the potential to endanger the physical and the mental health or safety of the medical practitioner himself. For those reasons the non-publication orders were previously made.
14 When the Tribunal confirmed the order to apply to the 2008 proceeding, the Tribunal not only had before it the evidence of these two psychiatrists but also the opinion of a further psychiatrist who had recently seen the practitioner in another country. Even though the third psychiatrist did not consider the practitioner to be in any immediate danger of self harm or the like, the Tribunal considered that, having regard to the opinions previously expressed by the first two psychiatrists (which had not been withdrawn or revised), and reading the opinion of the third psychiatrist in context, a precautionary approach clearly suggested that the circumstance described in s 61(4)(d) could not be treated as having dissipated.
15 After the last non-publication order was made in respect of the 2008 proceedings, Nationwide News Pty Ltd (Nationwide News) applied to the Tribunal to vary the non-publication orders in the various proceedings by varying that part of the order which imposes a prohibition on the publication of the 'subject matter' of the applications. Nationwide News did not however move to vary those parts of the non-publication order which prohibit the publication of the identities of patients of the practitioner or indeed the identity of the practitioner.
16 The standing of Nationwide News to seek a variation of nonpublication was not challenged by either counsel for the practitioner or counsel for the Board. Without finally deciding whether or not as a general rule Nationwide News should be considered a party entitled to intervene in proceedings in the Tribunal, the Tribunal is content to allow Nationwide News to be an intervener in the present proceedings in relation to the limited application to vary the non-publication order in respect of the subject matter of the proceedings and to make submissions on that issue alone.
Basis of application of Nationwide News
17 The basis of Nationwide News seeking the variation to the nonpublication order is that the Tribunal is not empowered to make a nonpublication order in terms which include the 'subject matter' of the proceedings under s 61 of the SAT Act, or otherwise.
(Page 7)
18 Alternatively, Nationwide News contends that an order in those terms ought not to have been made in 'such wide and uncertain terms' given, amongst other things, considerations of open justice and when departures from that principle are justified (and if so, in what terms and to what extent).
19 Counsel for Nationwide News emphasises the statutory background to the power and jurisdiction of the Tribunal generally, noting that s 61(1) of the SAT Act provides for the Tribunal to hold its hearings in public, unless other provisions of the SAT Act provide otherwise.
20 Counsel for Nationwide News emphasises that the principle of open justice reflects the general law that applies in respect of courts: see generally Scott v Scott [1913] AC 417; Re Bromfield; Ex parte Western Australian Newspapers Ltd (1991) 6 WAR 153; and the authorities summarised generally in the recent case of Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133.
21 Counsel submits that being a statutory tribunal, SAT does not have any implied or inherent powers to make suppression orders and non-publication orders other than those set out in specific statutory provisions as exceptions to the generally stated principle of open justice.
22 Counsel then says that the relevant power of the Tribunal to make a nonpublication order arises under s 62 and s 61 of the SAT Act. As to the type of nonpublication order that the Tribunal can make, specific attention must be given to s 62(1) because the effect of these two provisions is that a nonpublication order can only be made in respect of:
• Any evidence given before the Tribunal;
• The contents of any documents produced to the Tribunal; and
• Any information that might enable a person who has appeared before the Tribunal to be identified.
23 Counsel for Nationwide News submits that, given that the starting point is open justice, provisions such as s 62 and s 61 of the SAT Act must be strictly and narrowly construed: Herald & Weekly Times Ltd v Magistrates' Court of Victoria [2004] VSC 194 at [13] and [14]; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55; Herald & Weekly Times Ltd v Magistrates' Court of Victoria [1999] VSC 232.
(Page 8)
24 Counsel for Nationwide News submits in particular that an order that there be no publication of the subject matter of proceedings does not fall within any of the three categories within s 62(1) of the SAT Act, especially having regard to the proper approach to the interpretation of those provisions.
25 As to that approach, Counsel particularly draws attention to Jeffery and Corrections Victoria and The Herald and Weekly Times Limited [2004] VCAT 1211 (Jeffery) in relation to the proper interpretation of s 101 of the Victorian Civil Administrative Tribunal Act 1998 (Vic) (VCAT Act), which is similar to s 62 and s 61 of the SAT Act. In that case the court had to consider the extent of the words 'the contents of any documents produced to it'. Counsel says that in finding that certain documents did not fall within that category - (in that case a note of what had happened at a confidential mediation which ought not to have been placed upon the court file but mistakenly was and was viewed by journalists) - and in finding that s 101 of the VCAT Act did not empower the Tribunal to make a non-publication order in respect of that document, Justice Morris, President of Victorian Civil Administrative Tribunal (VCAT) at [29] - [30] followed Herald & Weekly Times Ltd v Magistrates' Court of Victoria [1999] VSC 232, stating:
The starting point in relation to section 101 is that it is a provision that potentially restricts the openness of matters before the tribunal. Uninformed by authority, my approach to section 101 would be to apply it on the basis of the language used in the section. But my attention has been drawn to the decision of Beach J in TheHerald and Weekly Times v The Magistrates Court of Victoria [1999] VSC 232, particularly at paragraphs 44 and 45, where his Honour adopted a passage from Kirby J to the effect that sections like section 101 should usually be strictly and narrowly be construed.
Looking at section 101 I am not persuaded that it applies to documents produced to the tribunal in the course of mediation. Section 101(3) refers to various circumstances, all of which more aptly fit circumstances that arise during a hearing. It is at a hearing, not a mediation, that evidence is given. It is at a hearing, rather than a mediation, that one would normally refer to a person having appeared. In relation to the particular provision relied upon, namely the reference to 'the contents of any documents produced to it', this is language more fitting to a hearing than to the placement of a document on a file before a hearing is scheduled. The language more commonly used in the latter circumstances is that of filing a document. [emphasis in original]
(Page 9)
26 Counsel for Nationwide News additionally argues that an order prohibiting publication must be clear in its terms and that the phrase 'subject matter' in these proceedings does not fulfil this requirement.
27 Counsel further contends that in the event that this submission is not accepted, Nationwide News contends there ought to be a variation of the nonpublication order having regard to the general principles concerning when there ought to be departure from the principles of open justice. That is, that the impairment is only to the extent strictly necessary, and no further, to secure, for instance, the administration of justice or whatever the prescribed basis for departure is.
28 Counsel further emphasises that from the outset the bar must be very high before the power to make a non-publication order is exercised, as emphasised in Herald & Weekly Times Ltd v Magistrates' Court of Victoria [2004] VSC 194 at [15] per Whelan J.
Submissions on behalf of the practitioner
29 Counsel for the practitioner primarily contends that the non-publication of the 'subject matter of the proceedings' should be seen as a non-publication order in respect of either 'documents produced to the Tribunal' under s 61(1)(b) of the SAT Act, or 'any information that might enable a person who has appeared before the Tribunal to be identified' under s 61(1)(c).
30 Counsel for the practitioner claimed that there was evidence that two doctors had put it about that the practitioner was the subject of disciplinary proceedings. He submitted that once there are rumours circulating and the subject matter of proceedings such as these is given some publicity, it takes very little for informed persons 'to join the dots' and thereby identify the practitioner concerned.
31 Counsel for the practitioner identified a dichotomy between s 61(1)(a) and s 62(1)(b) - between 'evidence' given before the Tribunal and the 'contents of any documents produced to the Tribunal' - which would suggest that the 'documents produced' may be something other than evidence. Counsel submitted that this indicated that the power of the Tribunal to order non-publication of the contents of a document enabled it to deal with the contents of documents where those documents are not yet 'evidence' in the sense of having been adduced in a proceeding in a formal manner.
(Page 10)
32 Counsel also emphasised, in a similar vein, that the reference to 'information' in s 62(1)(c) of the SAT Act should be broadly construed to include the subject matter of a proceeding that might enable a person who has appeared before the Tribunal to be identified.
Submissions of the Board
33 Counsel for the Board indicated that the Board did not wish directly to make submissions on the question of the power of the Tribunal to make a nonpublication order in respect of the 'subject matter' of the proceedings.
34 However, counsel did wish to make a submission concerning the claim that there was some evidence of rumours. Counsel for the Board pointed to a reference in a letter of Pamela Malcolm, Acting CEO of the Board to the fact that the Board had previously investigated certain allegations made by the practitioner that certain practitioners had been spreading false information about him, which had not resulted in any further action by the Board. Counsel submitted this evidence could not be cited to justify the submissions now made by counsel for the practitioner concerning rumours and the 'joining of dots'.
Power to make non-publication orders
35 The Tribunal has no difficulty in accepting the general principles concerning open justice contended for by counsel for Nationwide News. Not only are they well understood, as a matter of general principle, but they are reflected in the particular statutory commands to the Tribunal found in s 61 and s 62 of the SAT Act.
36 These principles have also recently been emphasised by the Court of Appeal in Chief Executive Officer, Department for Child Protection v Scott(No 2) [2008] WASCA 171 by Buss JA, with whom McLure JA agreed on this point at [148] - [155], especially at [152]. See also Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, Buss JA (with whom Wheeler JA agreed).
37 Leaving aside the particular circumstances when the Tribunal should be moved to make a non-publication order, having regard to the matters set out in s 61(4) of the SAT Act, the first question in relation to the issues raised in this case is in respect of what can the Tribunal make a non-publication order.
38 As noted earlier, under s 62(3) of the SAT Act, the Tribunal may, in the circumstances described in s 61(4) order that anything or any
(Page 11)
- particular thing to which s 62 applies is not to be published, except in the manner and to the persons specified by the Tribunal.
39 Section 62(1) then provides that s 62 applies to:
(a) any evidence given before the Tribunal;
(b) the contents of any documents produced to the Tribunal; and
(c) any information that might enable a person who has appeared before the Tribunal to be identified.
40 I note that Justice Morris as President of the VCAT in Jeffery, took the view that the expression 'the contents of any document produced to it' that appear in s 101 of the VCAT Act should be restricted to documents produced at a 'hearing'.
41 Respectful as I am of the construction of the relevant provision in the VCAT Act adopted by Morris J, I would construe the provisions of s 62(1) of the SAT Act a little differently from the way his Honour has done in the case of s 101 of the VCAT Act.
42 The first thing to notice about the relevant provision of the VCAT Act is that it contains, all in the one provision, provisions dealing with public hearings, private hearings, non-publication and the like. By contrast, the SAT Act by s 61 deals with public hearings and s 62 deals with the publication of information 'from or about a proceeding' (as the heading to s 62 describes it). The two provisions are not run together as is the case with s 101 of the VCAT Act.
43 In the result, in the case of Jeffery Justice Morris was influenced by the fact that s 101 of the VCAT Act had everything to do with what happens in a 'hearing'. At [32], his Honour concluded on this note:
This context is not only the context of section 101, but is also the context that section 101 is found in; that is, a series of sections dealing with hearings [emphasis in original], being part of Division 7 of Part 4 of the Act. By contrast there is a separate part of the Act, namely Division 5 of Part 4, which deals with compulsory conferences, mediation and settlement.
44 As a result, Justice Morris held that there was no power to make a nonpublication order in respect of the contents of a settlement agreement made at a mediation in that Tribunal.
(Page 12)
45 Under s 61 of the SAT Act, s 61(1) provides for 'hearings' of the Tribunal to be held in public. The Tribunal, in the circumstances described in s 61(4), can order that a hearing or part of it be held in private and that only specified persons may be present.
46 Quite separately, however, by s 62 of the SAT Act the Tribunal may order that 'anything, or any particular thing, to which this section applies is not to be published except in a manner and to the persons, if any, specified by the Tribunal'. Accordingly, the Tribunal has a broader power under s 62 to make a non publication order. The matters that the section apply to are noted earlier and set out in s 62(1). They are patently not limited to what happens in a 'hearing'. Indeed, this is suggested by the heading to s 62, 'Publication of information from or about a proceeding'. A 'proceeding' is not defined in the SAT Act but has a broad meaning and refers in context to any original or review proceeding in the Tribunal.
47 I consider that, taking into account the usual judicial principle that open justice should only be derogated from in very clear circumstances, and that ambiguous expressions in a statute setting out the rules for departure should be given a narrow interpretation, the expressions used in s 62(1) of the SAT Act dealing with in respect of what a non-publication order may be made, in my view, are not particularly ambiguous.
48 As to s 62(1)(a) of the SAT Act there can be no doubt that 'evidence given before the Tribunal' means evidence actually adduced. That would not include the mere application or the contents of an application or some other document simply lodged, filed or given to the Tribunal.
49 In Pt 4 of the SAT Act, which deals with Tribunal's procedures, reference is made to 'evidence'. For example, s 32(3) of the SAT Act provides that, without limiting subsection (2), the Tribunal may admit 'into evidence' the 'contents' of any 'document' despite non-compliance of any time limit, or any other requirements specified in the rules in relation to that document or service of it. This statutory provision on its own makes it clear that there is a distinction between a document, or the contents of a document that the Tribunal holds in connection with a proceeding and any 'evidence given before the Tribunal'. Once a document is received into evidence, that document, and its contents, will relevantly be 'evidence given before the Tribunal'.
50 In the Tribunal, proceedings may be determined at a final hearing or on the basis of the documents (see s 60(2) of the SAT Act). Accordingly, a document or information may well be received into evidence in a formal
(Page 13)
- or informal manner at the time the Tribunal actually determines the proceedings. It will not always happen at a 'hearing'.
51 Either way, until the document is so received it will not, of itself, constitute 'evidence given before the Tribunal' and, accordingly, a document not having that status would not meet the description of information to which s 62(1)(a) refers.
52 In this particular case, no party suggests that the content of the applications of the Board to the Tribunal and various supporting documentation lodged or filed in the proceedings currently constitute 'evidence'. Nor does the Tribunal suggest otherwise.
53 Section 62(1)(a) therefore has no relevance in this case.
54 The next issue is whether the applications, supporting documents, or the information contained in them, may be considered to be 'the contents of any documents produced to the Tribunal'.
55 As noted, in Jeffery Morris J seems to have considered that the words 'produced to it [the VCAT]' where they appear in s 101 of the VCAT Act are indicative of a document produced at a formal 'hearing'. In my view, this restrictive approach is not called for by the clear words of s 62(1)(b) of the SAT Act in the context of the SAT Act.
56 First, there is obviously a contradistinction between any 'evidence given before the Tribunal' and the 'contents of any documents produced to the Tribunal'. Secondly, I do not see any need in context to restrict the meaning of the expression 'contents of any documents produced to the Tribunal' to documents that are the subject of some formal order for production - for example made by the Tribunal under s 66(1) of the SAT Act, or otherwise under directions of the Tribunal under s 34 of the SAT Act, or under an order under s 35 requiring production of documents from third parties.
57 It seems to me that whether or not a document is one 'produced to the Tribunal' is to be answered by asking whether, as a matter of fact, it is a document that has been given to the Tribunal in connection with a proceeding.
58 The term 'produce' is defined by the Shorter Oxford English Dictionary (5th ed) relevantly, as follows:
Bring forward or out, esp. for inspection or consideration, present to view or notice. …
(Page 14)
- Bring (a thing) into existence; bring about, effect, cause (an action, result etc) …
- Similarly, the noun 'production' is relevantly defined by the same dictionary as follows:
Something which is produced by an action, process, etc; a product …
The action or an act of producing, making, or causing something; the fact or condition of being produced. …
The action of bringing forward or exhibiting something or someone. …
I should add the dictionary also defines production by reference to a special legal definition, as:
The exhibiting of a document in court.
60 However, there is nothing, in my view, in the context of Div 3 of Pt 4 of the SAT Act, which is headed 'Proceedings and Hearings', that suggests some narrow view should be taken of the expression 'documents produced to the Tribunal'.
61 So far as a hearing is concerned, what a 'hearing' is, is clear enough. It is a formal process that may be a final hearing or a preliminary or procedural hearing along the way to a final hearing. It might include a directions hearing. Directions hearings are expressly provided for in s 34 in Div 1 of Pt 4 of the SAT Act. It also includes a mediation or compulsory conference: SAT Act s 3. Mediations and compulsory conferences are also 'private' hearings: SAT Act s 54(6), s 52(4).
62 The Tribunal also expressly authorises proceedings to be resolved 'on the basis of documents' without parties attending or participating in a 'hearing', as noted above, under s 60(2) of the SAT Act.
63 It should also be noted that a person, as a member of the public, does not have a general right of access to documents or information given to
(Page 15)
- the Tribunal. What a member of the public does have is a right to inspect the register and obtain a copy of any part of the register, under s 155(3) of the SAT Act. By virtue of s 155(1) and the State Administrative Tribunal Regulations 2004 (WA) reg 5, the register of proceedings contains the following details:
• the number allocated to the proceeding;
• the date on which the proceeding was commenced;
• the names of the referring person, the applicant, any other party and any notifiable person;
• the enabling Act and provision of that Act under which the proceedings were commenced;
• if the proceedings are withdrawn, the date on which they are withdrawn;
• the final decision; and
• if a matter is transferred to the Tribunal under s 167(4)(a) or s 167(4)(b) or s 167(5), information concerning the transfer.
65 This is not a surprising situation given that much information that a generalist tribunal like SAT receives pertains to private and confidential information bearing upon the personal or business interests of a range of people. The appropriate time for information to be publicly accessible is when that information, including documents, is received into evidence. Subject to any non-publication order being made in respect of that information, the public is then able to have regard to it and media outlets, for example, are then free to publish it to the world at large. Short of the information becoming publicly available evidence, however, the information held by the Tribunal is not readily able to be disseminated.
66 Indeed, it may be the case that in proceedings in the Tribunal, as in the case of certain information supplied by one party to another party in court proceedings under a degree of compulsion, there is an implied obligation on a party not to provide to non-parties information they have only obtained by reason of their status as a party to the proceedings: see
(Page 16)
- Hearne v Street [2008] HCA 36 particularly [102] - [112]. However, this issue does not need to be resolved on this occasion.
67 Some of the information held by the Tribunal, as noted, is of a private and confidential nature. In some circumstances it may well be appropriate, for the reasons specified in s 61(4) of the SAT Act, to make a non-publication order in respect of it.
68 In a case like the present, even though the members of the public, including the media, may not have the right to access information or documents held by the Tribunal relating to proceedings involving the Board and the medical practitioner involved, they may of course be privy to the subject matter of those proceedings by other means.
69 It would be an odd thing if, in an appropriate case, having regard to the terms of s 61(4), the Tribunal could not make a non-publication order in respect of documents that had properly been given to the Tribunal for the purpose of dealing with the resolution of questions, complaints or disputes within jurisdiction raised by the proceedings, rather than have to await the formal admission of the information into 'evidence' in a proceeding.
70 For these reasons, I consider that the expression 'contents of any documents produced to the Tribunal' that appears in s 62(1)(b) of the SAT Act is a broad expression on its face that includes all manner of documents held by the Tribunal in connection with proceedings and includes the contents of the applications made by Board in the various proceedings concerning the medical practitioner. To refer to those contents in this case as 'the subject matter of the application' is a convenient shorthand expression that is clear and unambiguous. Accordingly, I consider the Tribunal has power to make the order that the 'subject matter of the application' not be published.
71 While the Tribunal also has the power under s 62(1)(c) to make a nonpublication order in respect of any 'information' that might enable a person who has appeared before the Tribunal to be identified, I am not satisfied that the publication of the subject matter, of itself, would enable the medical practitioner to be identified.
72 In saying that I am prepared, for present purposes, to treat the medical practitioner as a person 'who has appeared' before the Tribunal, in that, in the various proceedings to date, he has been represented by counsel and in that sense has announced his appearance in response to allegations made against him. I do not think in these circumstances the
(Page 17)
- words 'who has appeared before the Tribunal' means that there has to have been a final hearing before an order of that nature can be made.
73 However, the contention made by counsel for the practitioner that there might be some other medical practitioners in the community who might spread rumours such that publication of the subject matter of these proceedings would lead to his identity being known, is drawing a long bow. I am not currently prepared to draw that conclusion.
Whether non-publication order should be maintained
74 Nationwide News also challenges the view that there is a proper basis to maintain the non-publication order in respect of the subject matter of the proceedings.
75 However, the Tribunal considers, based on the evidence previously given by the two psychiatrists, for the Board and the practitioner respectively, and the recent psychiatric information given to the Tribunal by the third psychiatrist, that the circumstances that initially existed when the non-publication orders were first made and repeated in 2007, have not been shown to have dissipated. There has been throughout those proceedings a very serious concern, held by senior psychiatrists, that publication of the subject matter of these proceedings - not just his name - could well be a trigger that causes the medical practitioner to engage in serious acts of self harm.
76 The senior psychiatrist engaged by the Board provided medical evidence on 24 July 2007 and 27 August 2007. In the report dated 27 August 2007 the psychiatrist was asked to give particular regard to the likely effect upon the practitioner's psychiatric condition, his safety and the safety of others that may result from planned action to announce his situation to the media. The psychiatrist advised in the following terms:
I anticipate that the publication of this gentleman's situation with the involvement of the media is likely to have an adverse effect upon him, his mood disorder, and his family's well-being. I believe such a move would be counter productive in terms of his psychiatric disorder. There is a reasonable probability, that with appropriate treatment, within six months, he will recover sufficiently and be psychiatrically able to defend himself in the State Administrative Tribunal. I anticipate that the publication of his details and the involvement of the media is likely to aggravate his depressive disorder and given his personality characterises, there is a reasonable probability that such a move may precipitate suicide. Such a move is also likely to aggravate his mood disorder and decrease very significantly the probability of his being able to, from a psychiatric perspective, give evidence in six month's time.
(Page 18)
77 The psychiatrist consulted by the medical practitioner also produced a report dated 26 November 2007. In it he stated:
Undue publicity in the media is highly likely to intensify these symptoms, and lead to his acting on his suicidal ideas, with a high chance of his successful killing himself, especially as a doctor, he will know how to do so. Even if he does not suicide, the deepening of his depression may render him unfit to instruct counsel, and unfit to attend legal proceedings again, causing further delays.
78 The first mentioned psychiatrist engaged by the Board provided a further report dated 17 December 2007 and concluded his observations with this comment:
At this stage I have no reason to believe he is in immediate danger of selfharm but that possibility remains in the future, particularly if there is publicity of his case. It is not possible to quantitate the risk of suicide however, for the moment, he is not acutely suicidal.
79 The most recent reports were obtained from another psychiatrist consulted by the practitioner in another country. This psychiatrist also gave evidence to the Tribunal. While this psychiatrist is clearly of the view that the medical practitioner is currently not fit to instruct his solicitors as at May 2008, and he considered that more time would enable the practitioner the space and freedom to reflect and recover from a number of traumatic events and prepare for the hearing of the 2008 proceeding, he also recommended to the Tribunal that it 'extend its status quo by leaving the non-disclosure in tact to avoid any further deterioration' in the practitioner's health.
80 While the evidence overall, especially the latest opinion from the psychiatrist from the other country, suggests that the position of the medical practitioner is improving, the situation from late 2007 commented upon by the two locally based psychiatrists, when read with the recent advice of the psychiatrist from another country, suggests that serious concerns are still held for the safety of the medical practitioner should publicity be given to the proceedings.
81 It must of course be appreciated that while members of the public generally might not have any idea who the medical practitioner is if his identity were the subject of non-publication, if the subject matter of the proceedings were published the practitioner himself would know to whom that publication relates. He plainly also has held concerns that persons in his own profession, and of course the media now, are generally aware of who he is. Taking all of this evidence together the Tribunal continues to
(Page 19)
- consider there would be a real risk of the medical practitioner acting on a suicidal ideation should the subject matter of the proceedings be published.
82 The Tribunal indicated then, and repeats now, that it is not prepared to take the risk of endangering the physical or mental health or safety of the medical practitioner concerned, in the apparent interests of open justice, by allowing the subject matter of the applications to be published. These circumstances are precisely the circumstances the parliament has provided for in s 61(4)(d) of the SAT Act - to avoid endangering the physical or mental health of any person.
83 The Tribunal has always intended for the non-publication of the 'subject matter of this application' to operate to prevent the publication of the identity of the practitioner. To the extent that this may not have been clear, the Tribunal now makes an appropriate amendment to the non-publication order to cover 'the identity of the practitioner'.
84 Whether or not these restrictions on publication will remain appropriate in the future remains to be decided, but they are at this point warranted, albeit that they are exceptional.
Conclusion and Order
85 In those circumstances the Tribunal concludes that it has the power to make the non-publication order that has been made.
86 Furthermore, it is not currently appropriate to remove the restriction that it previously applied having regard to the matter referred to in s 61(4)(d) of the SAT Act.
87 Accordingly, the subject matter of each proceeding as well as the identity of the medical practitioner will remain the subject of a non-publication order, pending further order of the Tribunal.
88 The Tribunal therefore orders that:
1. The application of Nationwide News Pty Ltd to discharge or vary the non-publication orders in these proceedings by removing the first sentence of the order concerning the subject matter of the application is dismissed.
2. The existing non-publication orders are amended as follows:
- (a) Until further order the subject matter of this application and the identity of the practitioner is not to be disclosed, distributed, or published in any way without the express authorisation of the Tribunal.
(b) The identity of patients the subject of this application is not to be disclosed, distributed or published in any way without the express authorisation of the Tribunal.
I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
1
7
3