Medical Board of Western Australia v A Medical Practitioner - [2011] WASCA 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA -v- A MEDICAL PRACTITIONER [2011] WASCA 151

CORAM: MARTIN CJ
NEWNES JA
MURPHY JA

HEARD: 8 FEBRUARY 2011

DELIVERED : 8 JULY 2011

FILE NO/S: CACV 30 of 2010

BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Appellant
AND
A MEDICAL PRACTITIONER
First Respondent
NATIONWIDE NEWS PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :CHANEY J
File No  :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

Catchwords:

Courts and Tribunals - State Administrative Tribunal - Open justice - Nonpublication orders - Scope and application of State Administrative Tribunal Act 2004 (WA) s 62 - Relationship between State Administrative Tribunal Act 2004 (WA) s 61 and s 62 - Enforcement of nonpublication order

Legislation:

Freedom of Information Act 1992 (WA), glossary, cl 15
Interpretation Act 1984 (WA), s 32
Medical Act 1984 (WA)
Medical Practitioners Act 2008 (WA)
State Administrative Tribunal Regulations 2004 (WA), Reg 5
State Administrative Tribunal Act 2004 (WA), s 15, s 17, s 32(1), s 32(2), s 32(4), s 32(5), s 32(7)(a), s 32(7)(b), s 35, s 42, s 52, s 52(1) s 54, s 60, s 61, s 61(4), s 62(1)(a), s 62(1)(b), s 62(1)(c), s 62, s 62(3), s 66, s 67, s 72, s 100, s 105, s 105(9), s 148, s 155, s 155(2), s 156, s 157, s 159, s 159(3), s 160, s 161

Result:

Appeal allowed in part

Orders made by the State Administrative Tribunal on 12 March 2010 in relation to 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 and VR 132 of 2007 be set aside insofar as they relate to the prohibition on the publication of the 'subject matter' of the applications and the identities of the patients involved in those proceedings

Those proceedings be remitted to the Tribunal in order that the Tribunal can give further consideration to the non-publication orders properly made according to law

The above orders are to be stayed until the Tribunal has had the opportunity to give further consideration to the orders properly made and has made orders giving effect to that reconsideration

Category: A

Representation:

Counsel:

Appellant:     No appearance
First Respondent           :     Mr M L Bennett
Second Respondent      :     Mr R Anderson

Solicitors:

Appellant:     No appearance
First Respondent           :     Lavan Legal
Second Respondent      :     Edwards Wallace Lawyers

Case(s) referred to in judgment(s):

Douglas and Van May (WA) Pty Ltd [2005] WASAT 318
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
James and Sayers (The Trustee for Sayers Family Trust) [2006] WASAT 332
Jeffery v Corrections Victoria & The Herald & Weekly Times Ltd [2004] VCAT 1211
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Kakoullis v Transport Accident Commission [2006] VCAT 1051
Medical Board of Queensland v Bayliss [1999] QCA 59
Medical Board of Western Australia and A Medical Practitioner [2008] WASAT 209
Medical Board of Western Australia and A Practitioner [2009] WASAT 39
Otter Goldmines Ltd v McDonald (1997) 76 FCR 467
Secretary, Department of Treasury & Finance v Kelly [2001] 4 VR 595
Turner v Department of Education [2006] VCAT 2661

JUDGMENT OF THE COURT:

Introduction

Between 2005 and 2007, the Medical Board of Western Australia (the Board) commenced 13 separate sets of proceedings in the State Administrative Tribunal (the Tribunal) in which it alleged that the first respondent, a medical practitioner (the practitioner), was guilty of professional misconduct in his treatment of his patients. In 2008, the Board commenced another set of proceedings in the Tribunal, in which it alleged that the practitioner was guilty of professional misconduct in the course of his dealings with the authorities responsible for the regulation of the medical profession in South Africa.
In the course of all those proceedings, the Tribunal made various orders prohibiting the publication of various aspects of the proceedings. The Board appealed to this court from non‑publication orders made by the Tribunal on 20 July 2009 (in matter CACV 92 of 2009), and brought this appeal from orders made by the Tribunal on 12 March 2010. The second respondent, Nationwide News Pty Ltd (Nationwide), a news publisher, was named as a respondent to both appeals because it had been granted leave to be heard by the Tribunal in opposition to the non‑publication orders which had been made. Nationwide brought its own appeal from non‑publication orders as amended in the proceedings on 12 September 2008 (CACV 90 of 2008), and brought a cross‑appeal to the present appeal, challenging the non‑publication orders made by the Tribunal which are the subject of this appeal on grounds other than those advanced by the Board.
Shortly before the hearing of all appeals, the Board discontinued the two appeals which it had brought. However, Nationwide pressed its appeal against the orders made in 2008, and its cross‑appeal challenging the orders made in 2010. Because the orders made in 2008 have been superseded by subsequent orders, including the orders the subject of the cross‑appeal in these proceedings, and because the ground of appeal against the 2008 orders is, in substance, identical to one of the grounds of cross‑appeal relating to the 2010 orders, it will not be necessary to provide detailed reasons for the disposition of the 2008 appeal, which will either stand or fall with Nationwide's cross‑appeal in these proceedings. It will, however, be appropriate to refer in some detail to the reasons given by the Tribunal for the non‑publication orders made in 2008, as those reasons have influenced and informed the non‑publication orders subsequently made, including the orders the subject of Nationwide's cross‑appeal.
It will be necessary in due course to chart in some detail the chronological sequence of events which have given rise to the issues which require resolution on Nationwide's cross‑appeal. However, before doing so, it is appropriate to shortly identify the provisions of the State Administrative Tribunal Act 2004 (WA) (the Act) that are relevant to the disposition of Nationwide's cross‑appeal.

The State Administrative Tribunal Act

The Tribunal's jurisdiction is conferred by other legislation, described in the Act as 'an enabling Act'. Each of the Medical Act 1894 (WA) (the Medical Act) and the Medical Practitioners Act 2008 (WA) conferred jurisdiction upon the Tribunal to determine allegations of professional misconduct made by the Board. The Tribunal's jurisdiction is divided by the Act into two categories - original jurisdiction and review jurisdiction (pt 3, divs 2 ‑ 3, s 15 and s 17). The jurisdiction of the Tribunal to determine allegations of professional misconduct by medical practitioners comes within the Tribunal's original jurisdiction.
The Tribunal is bound by the rules of natural justice except to the extent that the Act or an enabling Act authorises, either expressly or by implication, a departure from those rules (s 32(1) of the Act). The Tribunal is not bound by the rules of evidence, and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32(2)). Further, the Tribunal may inform itself on any matter as it sees fit (s 32(4)). To the extent that the practice or procedure of the Tribunal is not prescribed by or under the Act or the relevant enabling Act, it is to be as the Tribunal determines (s 32(5)). The Tribunal is required to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue (s 32(7)(a)), and may require evidence or argument to be presented in writing, and decide upon the matters upon which it will hear oral evidence or argument (s 32(7)(b)).
Proceedings before the Tribunal are commenced by application (s 42). The Act contemplates that proceedings commenced in the Tribunal can be dealt with by the Tribunal in a variety of ways and means, including by a directions hearing: see for example (s 52(1)), a compulsory conference (s 52), a mediation (s 54), an electronic hearing (s 60), a public hearing (s 61), or no hearing at all (s 60).
There are a number of ways in which the Tribunal may compel the production of a document. First, under s 34(5), the Tribunal may direct a party to produce a document or other material or to provide information to the Tribunal or another party. Second, under s 35, the Tribunal may order a person who is not a party to proceedings to produce documents or other materials to the Tribunal or to a party. Third, the Tribunal may issue a summons requiring the attendance of any person before the Tribunal, or the production of any document or other material to the Tribunal (s 66).
In any proceedings before the Tribunal, witnesses may be called and examined or cross‑examined (s 67). Further, by s 72:
The Tribunal may inspect any document or other material produced before it, and retain it for as long as it reasonably thinks fit, and make copies of any document or any of its contents.
The senior administrative officer of the Tribunal is its Executive Officer (s 148). The Executive Officer is to keep a register of proceedings containing the details specified in the regulations (s 155). The register is to be made available for inspection by the public (s 155(2)). Regulation 5 of the State Administrative Tribunal Regulations 2004 (WA) provides that the matters to be recorded in the public register are:
(a)the number allocated to the proceedings;
(b)the date on which the proceedings are commenced;
(c)the names of the parties;
(d)the enabling act and the provision of that act under which the proceedings are commenced;
(e)if the proceedings are withdrawn, the date on which they were withdrawn;
(f)the final decision;
(g)if the matter is transferred to the Tribunal, certain details relating to the transfer.
Section 156 of the Act provides that the Tribunal may publish its decisions, or any of them, but expressly provides that s 62 (to which we will shortly turn) applies to the publication of such reasons.
Section 157 of the Act provides that members and staff of the Tribunal commit an offence if they disclose to any person, any information about the affairs of a person acquired in the performance of functions under or in connection with the Act. This section also contains a number of exclusions from the prohibition upon disclosure - for example by permitting disclosure to a member of the police force for the purposes of reporting or investigating a suspected offence, or for statistical purposes.
Section 159 of the Act creates a process whereby the Attorney General may certify that the disclosure of information about a specified matter, or matter contained in a document would be contrary to the public interest for reasons specified in s 159(3). If such a certificate is issued, the Tribunal is obliged to ensure that protected matter the subject of the certificate is not disclosed (s 160).
The Act does not affect the application of the Freedom of Information Act 1992 (WA) (the FOI Act) to the disclosure of an exempt document to a person or body other than the Tribunal (s 161).
Under the FOI Act, the word 'court' is defined to include a tribunal (FOI Act, glossary, cl 5). While courts are agencies for the purposes of the rights of access created by that Act, a document relating to a court is not to be regarded as a document of the court unless it relates to matters of an administrative nature (FOI Act, glossary, cl 5). Accordingly, documents in the possession of the Tribunal which pertain to specific proceedings (such as the application, answer, evidence, transcript, etc) are not to be taken as documents of the Tribunal, and are not therefore accessible under the FOI Act.

Public hearings and non-publication orders

The provisions of the Act relating to the public hearings of the Tribunal, and the powers of the Tribunal to make non‑publication orders are critical to the disposition of the cross‑appeal. They are:
61. Public hearings
(1)Unless another provision of this Act provides otherwise, hearings of the Tribunal are to be held in public.
(2)On the application of a party or on its own initiative the Tribunal may, in the circumstances described in subsection (4), order that a hearing or any part of it be held in private and that only specified persons may be present.
(3)The Tribunal's power to make an order under subsection (2) is exercisable by -
(a)a legally qualified member; or
(b)the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member.
(4)The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so -
(a)to avoid endangering the national or international security of Western Australia or Australia;
(b)to avoid damaging inter‑governmental relations;
(c)to avoid prejudicing the administration of justice;
(d)to avoid endangering the physical or mental health or safety of any person;
(e)to avoid offending public decency or morality;
(f)to avoid endangering property;
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h)for any other reason in the interests of justice.
62. Publication of information from or about a proceeding
(1)This section 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.
(2)Anything to which this section applies that is protected matter is not to be published.
(3)On the application of a party or on its own initiative the Tribunal may, in the circumstances described in section 61(4), 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.
(4)The Tribunal's power to make an order under subsection (3) is exercisable by -
(a)a legally qualified member; or
(b)the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member.
Publication of material the subject of an order made by the Tribunal pursuant to s 62 of the Act is not, of itself, an offence. Division 7 of pt 4 of the Act creates a number of specific offences, including failure to comply with a decision of the Tribunal (but only if certain pre‑requisites are met), failure to comply with a summons, failure to give evidence as required, the giving of false or misleading information, and misbehaviour or other conduct. Moreover, s 100 of the Act provides:
100. Contempt
(1)If the President is satisfied that an act or omission of a person would constitute a contempt of the Court if a proceeding of the Tribunal were a proceeding in the Supreme Court, the President may report that act or omission to the Supreme Court and the Court has jurisdiction to deal with the matter as if it were a contempt of the Court.
(2)If subsection (1) applies to an act or omission by a person and that act or omission is also an offence under this Act, the person is not liable to be punished twice.
Publication in contravention of a non‑publication order made pursuant to s 62 of the Act could therefore be dealt with as if a contempt of the Supreme Court, if the procedure specified in s 100 of the Act is followed.

The proceedings against the practitioner in the Tribunal

In November 2005, the Board commenced proceedings in the Tribunal alleging that the practitioner had committed breaches of the Medical Act. In May 2006, the Board commenced other proceedings in the Tribunal seeking an order preventing the practitioner from undertaking certain types of surgical procedures. In June 2006, the Tribunal made interim orders sought by the Board preventing the practitioner from carrying out certain procedures until further order. On 27 June 2006, the Tribunal made an order prohibiting the practitioner from performing any medical practice until further order. At the same time, the Tribunal made an order in the following terms:
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.
During 2006, there were concerns as to the capacity of the practitioner to instruct solicitors to act on his behalf, as a result of his mental state.
The Board commenced two other proceedings in 2006 alleging professional misconduct by the practitioner.
In January 2007, the practitioner met an employment agent in South Africa and advised her that he was working in his own medical practice in Perth when he knew that to be false: Medical Board of Western Australia and A Practitioner [2009] WASAT 39 [54] ‑ [58] (Tribunal decision). He also failed to inform that employment agent of the proceedings that had been brought against him in the Tribunal, or that he had been ordered to refrain from practising medicine pending the disposition of those proceedings: Tribunal decision [59] ‑ [63]. Further, in May 2006, the practitioner provided a curriculum vitae to the employment agent in South Africa which was false, and also provided a document purporting to be a 'certificate of good standing' issued by the Board to the effect that the practitioner was not the subject of any inquiry by the Board (which was, of course, not true): Tribunal decision [68] ‑ [74]. Further, in January 2007, the practitioner submitted an application form to an employment agent in South Africa stating that he did not suffer from any disability, when in fact he had, as at that date, been certified unfit to practice medicine by reason of an illness, and had been in receipt of payments from an income protection insurer since February 2006 as a result: Tribunal decision [75] ‑ [79].
During 2007, the Board commenced nine separate sets of proceedings against the practitioner alleging breaches of the Medical Act.
In May 2007, the practitioner submitted another false certificate of good standing to the employment agent in South Africa: Tribunal decision [85] ‑ [92].
Also during 2007, expert psychiatric advice was sought and provided as to the capacity of the practitioner to respond to the allegations that had been made against him, having regard to his mental condition.
In October 2007, the practitioner participated in a telephone interview with a medical practitioner in South Africa for the purposes of seeking employment in that country. The practitioner failed to advise that he had been certified unfit to work, that he was subject to an interim order preventing him from practising medicine in Western Australia, or that the Board had brought proceedings against him in the Tribunal in which allegations of professional misconduct had been made: Tribunal decision [80] ‑ [84].
On 18 December 2007, non‑publication orders were made in relation to the proceedings that had been commenced that year in the same terms as had been made in earlier proceedings, namely:
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.
These orders were made subject to limited specific exceptions which are not material to the present proceedings.

At the same time, the various proceedings that had been brought against the practitioner were listed for hearing by the Tribunal in August and September 2008.
However, in March 2008, the Board commenced proceedings in the Tribunal (VR 51 of 2008) alleging breach of the Medical Act by the practitioner arising from the practitioner's actions in seeking registration and employment in South Africa. The Tribunal made orders which had the effect of ensuring that those proceedings were heard before the other 13 proceedings, which made various allegations of professional misconduct arising from the practitioner's dealings with his patients.
On 25 March 2008, a non‑publication order was made in relation to matter VR 51 of 2008 in the same terms as had been made in relation to the other proceedings brought against the practitioner.
During 2008, Nationwide challenged the various non‑publication orders that had been made by the Tribunal in the various proceedings brought against the practitioner. That challenge was heard by Barker J, who was then President of the Tribunal. In a decision published on 12 September 2008 (Medical Board of Western Australia and A Medical Practitioner [2008] WASAT 209 (Nationwide decision)), Barker J rejected Nationwide's challenge, and amended the non‑publication orders in all 14 proceedings in the following terms:
(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.
After referring to s 61 and s 62 of the Act, Barker J observed:
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.
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.
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 [45] ‑ [47].
As to the scope of s 62(1)(a) concerning 'evidence given before the Tribunal', Barker J observed:
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.
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'.
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 or informal manner at the time the Tribunal actually determines the proceedings. It will not always happen at a 'hearing'.
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.
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.
Section 62(1)(a) therefore has no relevance in this case [48] - [53].
Turning to s 62(1)(b), concerning 'the contents of any documents produced to the Tribunal', Barker J distinguished the decision of Morris J in Jeffery v Corrections Victoria & The Herald & Weekly Times Ltd [2004] VCAT 1211, and rejected the proposition that the paragraph was confined to documents produced or tendered at a formal hearing: Tribunal decision [40] ‑ [46]. Barker J also rejected the proposition that the expression 'produced to the Tribunal' was restricted to documents 'formally produced to the Tribunal pursuant to an express lawful requirement of the Act' [59]. However, he expressed the view that even if the expression were so construed:
It would arguably include such things as the initiating process or other applications made during the course of the proceeding and various documents lodged in accordance with the Tribunal's practices and procedures, orders, practice notes or otherwise in support of some application made [59].
Barker J expressed the view that no narrow view should be taken of the expression 'documents produced to the Tribunal'. In that context, his Honour observed:
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.
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 [69] ‑ [70].
As to s 62(1)(c) concerning information that might enable a person who has appeared before the Tribunal to be identified, Barker J expressed the view that the practitioner was a person who had 'appeared' before the Tribunal, albeit through counsel.
Barker J reviewed the psychiatric evidence that had been adduced and concluded, from that evidence, that:
There would be a real risk of the medical practitioner acting on a suicidal ideation should the subject matter of the proceedings be published [81].
For that reason, Barker J concluded that the orders which we have already set out should be made in each of the proceedings before the Tribunal.
The proceedings brought against the practitioner by the Board in 2008 relating to his attempts to practice medicine in South Africa without disclosing to the regulatory authorities in that country that he was subject to a number of disciplinary actions in Western Australia, and in some cases actively misleading those authorities as to his standing as a medical practitioner in Western Australia, were heard on 15 December 2008. At the commencement of the hearing, counsel for the practitioner advised the Tribunal that on the basis of psychiatric advice, the practitioner did not intend to participate in the hearing, and was prepared to consent to an order that his registration be cancelled and his name removed from the register of medical practitioners, but on the basis that he did not admit any of the allegations made against him, and that there were no adverse findings made against him. Understandably, the Tribunal was not prepared to proceed on that basis, and received evidence tendered by the Board in support of its allegations. In a decision delivered on 6 March 2009, the Tribunal found the allegations proven and ordered the cancellation of the practitioner's registration and the removal of his name from the register: Tribunal decision [94].
The 13 proceedings commenced by the Board against the practitioner alleging misconduct in the treatment of patients remained to be resolved, although obviously their significance was substantially diminished by the Tribunal's decision to strike the practitioner from the register. On 20 March 2009, orders were made in the Tribunal referring those matters to mediation, and continuing the non‑publication orders pending a substantive hearing with respect to their continuation, although the orders were amended to allow the patients the subject of the complaints to be advised that the practitioner's name had been removed from the register.
The question of whether or not the non‑publication orders should be maintained by the Tribunal or varied, and if so, to what extent, came before the President of the Tribunal, Chaney J, on 20 July 2009. Nationwide appeared at the hearing through counsel, and submitted that the non‑publication orders should be discontinued, save as regards the identity of the practitioner. In a decision given immediately following argument, Chaney J concluded that the non‑publication orders made in respect of the 13 proceedings commenced between 2005 and 2007 should be continued in their present form, subject to a variation which permitted disclosure to the Health Department for the purposes of the proposed mediation conference. In relation to the proceedings commenced in 2008, which had been determined, Chaney J concluded that the non‑publication order should be varied so as to remove the prohibition upon the publication of the subject matter of the application, but maintaining the prohibition upon publication of the identity of the practitioner and the identity of patients referred to in the reasons for decision given by the Tribunal on 6 March 2009. The effect of that order was to enable those reasons for decision to be published.
In the reasons given for arriving at those conclusions on 20 July 2009, Chaney J charted the history of the proceedings, and the changes in circumstances that had occurred since the non‑publication orders were affirmed by Barker J in September 2008. He then referred to the earlier decision of the Tribunal in James and Sayers (The Trustee for Sayers Family Trust) [2006] WASAT 332 and adopted the reasons given by the Tribunal in that case at [54] ‑ [60] (ts 7). Those paragraphs refer to a number of cases dealing with the common law principles of open justice as applied by the courts. In James and Sayers, it was assumed, without analysis or consideration, that those principles applied to the Tribunal. However, as the Tribunal is a creature of statute, and has jurisdiction and procedures which differ markedly from the jurisdiction and procedures of a court, that is not an assumption which can safely be made - rather, it is a conclusion which could only be arrived at after a process of statutory construction.
We digress to observe that although Chaney J did not rely upon other portions of the reasons given in James and Sayers, in that case, the Tribunal addressed the question of whether orders could be made suppressing publication of the names of the applicant and her partner on the basis that the power and the scope for such orders was conferred by s 61 of the Act, without any consideration of s 62 (at [62]). This approach is plainly erroneous. While orders suppressing publication can only be made pursuant to s 62 of the Act in the circumstances described in s 61(4) of the Act, the power and the scope of the non‑publication orders which the Tribunal is able to make are defined by s 62, not s 61, which is concerned with public hearings.
Chaney J specifically referred to the structure and operation of s 61 and s 62 of the Act. In his consideration of the circumstances in which a non‑publication order may be made, he referred to the discretion conferred by s 61(4) and the constraint that the discretion could only be exercised where it is necessary in order to avoid one or other of the consequences set out in that subsection. In relation to the consequence referred to in par (d) (to avoid endangering the physical or mental health or safety of any person), Chaney J referred to Medical Board of Queensland v Bayliss [1999] QCA 59 [19] to support his conclusion that 'endangering' meant exposing to danger or imperilling, in the sense of exposure to risk of harm, rather than actually causing harm. That conclusion is, with respect, plainly correct.
In the same context, Chaney J concluded that before the paragraph would be enlivened, the harm to physical or mental health to which the relevant person is put at risk must be something more than trivial harm, and that emotional distress caused by publication would not be sufficient to enliven the jurisdiction to conduct a private hearing under s 61 or make a non‑publication order under s 62 (ts 9).
His Honour therefore concluded that the power to conduct a private hearing or make a non‑publication order on the ground that it was necessary so as to avoid endangering the physical or mental health or safety of a person could only be exercised where there was 'a real or substantial risk of damage of some reasonably significant kind to the mental or physical health of a person' (ts 9). We respectfully agree with that conclusion.
After considering the psychiatric evidence that had been adduced, Chaney J concluded that there was a real risk that publication of the practitioner's name might endanger his mental health (ts 10).
Chaney J then considered a submission made by Nationwide to the effect that the breadth of the orders made, extending to 'the subject matter of the application', and the patients' names, exceeded that which was necessary to avoid endangering the mental health of the practitioner. In that context, Chaney J considered and rejected the proposition put on behalf of the practitioner that because publication of the reasons given by the Tribunal in its determination of the 2008 proceedings might enable some people with special knowledge of the facts and circumstances to identify the practitioner, this was a sufficient reason to prohibit publication of those reasons (ts 11 ‑ 12).
In the same context, his Honour was 'influenced by the public interest in transparency in the disciplinary processes in relation to professional people'. In his Honour's view, that public interest strongly supported publication of the reasons for decision given by the Tribunal in the 2008 proceedings. However, in his Honour's view, that public interest could be adequately served without identifying the practitioner. So, with respect to the 2008 proceedings, Chaney J partially acceded to the submission of Nationwide and removed the prohibition upon the publication of 'the subject matter of the application' (ts 12 ‑ 16).
The reasons given by Chaney J for rejecting Nationwide's submission in relation to the 13 proceedings commenced before 2008 are brief:
[I]t seems to me that the position is somewhat different because they are ongoing, they need to be resolved, and I think that the process of resolution would be better served by not varying the orders so far as they concern those other matters at this time.
It may well be that that position changes as well, and I certainly do not necessarily want to put the parties through this whole process again, but at this stage I think the process of resolution would be assisted by permitting publication only of the existing reasons in 51 of 2008. We may well get to the same position in relation to the other matters in due course but at this stage I think that one ought be cautious in relation to the risk which I think exists of the deterioration in the practitioner's mental stage [sic - health] (ts 13).
We digress to observe that, like the Tribunal in James and Sayers, his Honour did not give any separate consideration to the question of whether the scope of the non‑publication orders he was affirming fell within s 62 of the Act. That may be because his Honour took that issue to have been concluded by the decision of Barker J, which was then under appeal. However, if his Honour applied the test which he posed (correctly in our view) - namely, whether a non‑publication order was necessary to avoid a real or substantial risk of damage of some reasonably significant kind to the mental or physical health of the practitioner, his reasons do not elucidate that process, nor identify the basis for his implicit conclusion that prohibition of publication of the identity of the practitioner and his patients was sufficient to avoid that risk in the 2008 proceedings, but insufficient in the other 13 proceedings.
The only basis for distinction which might appear from the reasons given and which we have set out above is the proposition that the 13 proceedings are ongoing, coupled with the desirability of caution in relation to the risk of deterioration of the practitioner's mental health. However, it is difficult to see why the fact that the 13 proceedings were ongoing would, of itself, increase the risk that publication of their subject matter, without revelation of the identity of either the practitioner or the patients, would increase the risk of identification of the practitioner or exacerbate the harm that he would suffer. Moreover, the desirability of caution with respect to the risks to the practitioner's health applied with the same force in all proceedings, including the 2008 proceedings, and would not appear to provide any basis for treating the proceedings commenced between 2005 and 2007 differently, merely because they were ongoing.
In this context, it is significant to note that the effect of the decision to publish the Tribunal's reasons for determination of the 2008 proceedings, was to publish the general nature of the allegations made against the practitioner in the other 13 proceedings, as those matters are set out in the Tribunal's reasons which have been published, and are available on the internet. The effect of the orders made by the Tribunal, and publication of its reasons became apparent when the Sunday Times, a Nationwide‑owned publication, published a series of articles relating to the practitioner, including articles which referred in detail to the Tribunal's reasons in the 2008 proceedings, and in general terms to the other 13 proceedings which had been brought against the practitioner in the Tribunal.
On 30 October 2009, the question of the continuation of the non‑publication orders was again raised in a hearing before Chaney J. Nationwide submitted that the portion of the orders prohibiting publication of the subject matter of the application in each of the 13 proceedings that had not been determined should be removed, and the question of publication of the identity of the practitioner revisited after a further psychiatric report had been obtained. West Australian Newspapers Ltd also appeared through counsel, and supported Nationwide's submissions. Following argument, Chaney J gave his reasons for concluding that, subject to some variations sought by the Board to enable it to notify patients and other professional regulatory bodies of the outcome of the proceedings, the non‑publication orders should be maintained. The hearing was concluded on the basis that the precise terms of the final orders would be the subject of further conferral between the parties. Following that conferral, orders were issued by the Tribunal on 12 March 2010. It is those orders that were the subject of the Board's appeal, and are the subject of Nationwide's cross‑appeal.

In his oral reasons on 30 October 2009, Chaney J referred to the general history of the proceedings and the non‑publication orders which had been made, and characterised those orders as 'unusually extensive' (ts 31). He also incorporated by reference the observations he had made in his reasons delivered on 20 July 2009. He then identified the changes in circumstances which had occurred since those reasons were delivered, including the various publications in the Sunday Times.
Chaney J also referred to another change in circumstance, in that:
[T]here has been a resolution reached by agreement between the Board and the practitioner for the disposition of all remaining matters and that agreement has now become the subject of orders by the Tribunal which, in keeping with the Tribunal's usual practice in vocational matters, recite the facts upon which the allegations are based, in this case the facts that were agreed between the parties and provide the foundation for the determination, and then the orders which flow from those facts and findings. So that has occurred, but consistent with the orders that have been made publication of those matters remains prohibited (ts 32).
This is all the information that is before this court in relation to the disposition of the 13 proceedings commenced against the practitioner by the Board between 2005 and 2007.
The other change in circumstance identified by Chaney J was the provision of a psychiatric report from a psychiatrist treating the practitioner in South Africa, expressing the opinion that the publications in the Sunday Times had had a significant detrimental impact on the practitioner's health (ts 33). Apparently the practitioner became aware of those publications, even though he no longer resides in Western Australia, through family members and colleagues who advised him of the publications.
Based upon the various psychiatric assessments of the practitioner that had been undertaken from time to time, Chaney J expressed the conclusion that there was absolutely no doubt that the practitioner suffered from clinical depression, and that the weight of the evidence was to the effect that he suffered from depression of a severe kind (ts 34 ‑ 35). Given the consistency of the views that had been expressed, Chaney J could see no reason for adjourning further consideration of the non‑publication orders to enable a further psychiatric report to be obtained.
In that context Chaney J observed:
First and foremost I have reached the conclusion, based upon the reports of Dr Jedda, that the order remains necessary to avoid endangering the mental health and safety of the practitioner and therefore the jurisdiction contemplated in s 61(4) and s 62 arises. There has been a history of fluctuations in the mental state of the practitioner. That seems to me to be entirely consistent with what - it's a matter of common knowledge one sees in patients suffering from depression.
Although the Board at least implicitly seems to question the practitioner's motives, there has been a constant history that whenever matters have been coming to a head in the context of these proceedings, including when publication was relaxed following the last hearing, that the practitioner's symptoms have worsened and I am satisfied that there is a real risk that further publication of information concerning these proceedings will aggravate that position and that there is a serious risk to the safety of the practitioner and to his mental health and that is the opinion of his treating psychiatrist (ts 36).
Chaney J went on to reject the submission that distress and even depression were commonplace reactions to proceedings in the Tribunal's jurisdiction relating to vocational regulation, and that it would be unacceptable in the public interest to make non‑publication orders in all such cases. Chaney J reiterated the view he had expressed on 20 July 2009 to the effect that distress or unhappiness would not enliven the Tribunal's power under s 61(4) or s 62. However, in his Honour's view, this was a case of significant psychiatric illness which resulted in endangerment to health, which provided a sufficient basis for departing from what his Honour accepted 'to be the very important principle of open justice' (ts 37).
In response to Nationwide's submission that the prohibition upon publication of 'the subject matter of the application' in each of the 13 proceedings should be removed, and orders made in those proceedings which have the same scope as the order made in relation to the 2008 proceedings. Chaney J rejected that submission on the basis that 'the Tribunal has now had the opportunity of seeing the consequences of the variation which it permitted last time' (ts 37). Based on the psychiatric report relating to the consequences of publication, Chaney J concluded that relaxation of the non‑publication orders would be likely to have a detrimental effect upon the practitioner's health of the same kind as had followed publication of the Tribunal's reasons in the 2008 proceedings (ts 37).
Chaney J also rejected a submission by Nationwide to the effect that the orders should be varied so as to permit publication of the patients' names, on the ground that publication of those names would create a risk of increased publicity, which could endanger the health of the practitioner (ts 39).
So, in the reasons given on 30 October 2009, Chaney J elucidated the process of reasoning which had led him to conclude that maintenance of the non‑publication orders made in respect of the 13 proceedings that had been resolved on the basis of agreed facts was necessary to avoid a real or substantial risk of damage of some reasonably significant kind to the mental health of the practitioner. Essentially, he relied upon the psychiatric consequences of the publications which had followed publication of the Tribunal's reasons in the 2008 proceedings. However, as with the reasons given in July 2009, the reasons given on 30 October 2009 do not address the question of whether the orders made fall within the scope of orders authorised by s 62 of the Act. Again, this may be because those matters were taken to be addressed by the decision of Barker J given in July 2008.
As we have noted, following conferral between the parties, orders giving effect to the reasons announced on 30 October 2009 were issued on 12 March 2010. In all proceedings, orders were affirmed prohibiting publication of the identity of the practitioner or the identity of the patients referred to in the proceedings without the express authorisation of the Tribunal. In addition, in each case, the Board was authorised to provide copies of the final orders, and in the case of the 2008 proceedings, a copy of the decision, together with advice as to the identity of the practitioner, to other regulatory authorities anywhere in the world, and to other medical practitioners for the purpose of investigating the practitioner's conduct, provided that such authorities and practitioners were also provided with a copy of the non‑publication order.
In the case of the 13 proceedings commenced against the practitioner between 2005 and 2007, permission was given to publish a report of the fact that those proceedings had been resolved by agreement between the practitioner and the Board, that the practitioner admitted breaches of the relevant sections of the Medical Act, and the penalty that was imposed by the Tribunal having regard to the penalty which had been imposed in the 2008 proceedings, being removal of the practitioner's name from the register, on condition that the name of the practitioner not be identified. However, in each of those proceedings, the orders prohibiting publication of 'the subject matter of the application' were continued.
No such order was included in the orders made in the 2008 proceedings. However, in the 2008 proceedings, orders were made authorising the Board to provide information to the police, and to the patients in each of the 13 proceedings commenced between 2005 and 2007, and any other former patient of the practitioner who has made a complaint to the Board, of the fact that the practitioner's name had been removed from the register as a result of the proceedings, in each case on the condition that the police and the patients were provided with a copy of the non‑publication order.

The grounds of Nationwide's cross‑appeal

There are three grounds of cross‑appeal. The first ground asserts that the order prohibiting publication of 'the subject matter of the application' exceeded the powers conferred by s 62 of the Act.
The second ground, as enunciated in the notice of cross‑appeal, challenged the Tribunal's conclusion that the non‑publication orders were necessary on the grounds:
(a)of a lack of evidence;
(b)that the prohibition upon publication of the identity of the practitioner was sufficient of itself; and
(c)that the Tribunal had erroneously relied upon second‑hand statements concerning publication of the Sunday Times articles.
Counsel for Nationwide advised the court that although he did not have instructions to abandon the ground as enunciated, he would not advance any argument in support of the ground. The ground as enunciated is plainly hopeless because:
(a)there was evidence before the Tribunal with respect to the likely effect of publication upon the health of the practitioner;
(b)whether that evidence was sufficient to justify the making of a non‑publication order in addition to the order suppressing publication of the identity of the practitioner was a matter for the Tribunal, in the exercise of its discretion, and gives rise to no question of law falling within the scope of this court's jurisdiction to entertain an appeal from the Tribunal (see s 105 of the Act); and
(c)the Tribunal is empowered to inform itself in such manner as it thinks fit, and no objection was taken to the reference to The Sunday Times publications during the hearing on 30 October 2009.
For these reasons, ground 2 as enunciated in the notice of appeal must be dismissed. However, after it was apparent that counsel for Nationwide was advancing argument supposedly in support of ground 2 which went beyond its terms, an application was made to augment ground 2 by adding the following ground:
The Tribunal erred in failing properly to apply sections 61(1), 61(4) and 62(3) of the Act by determining that it was necessary to make the order to avoid endangering the physical or mental health or safety of the practitioner in isolation of the operation of the open justice principle (ts 52 ‑ 53).
Counsel advised that the ground was meant to encompass the proposition that Chaney J did not balance those considerations which supported the making of a non‑publication order against the public interest in the maintenance of the open justice principle when deciding to affirm the continued operation of the non‑publication orders. Counsel for the practitioner did not assert any prejudice flowing from the lateness of the amendment, and on that basis, the amendment was allowed.
Ground 3 as enunciated challenged that part of the Tribunal's decision which prohibited publication of the identity of the patients involved in the proceedings before the Tribunal on the grounds that:
(a)a non‑publication order relating to the identity of the patients was substantially for their benefit, not for avoiding danger to the health of the practitioner;
(b)there was no evidence to support that aspect of the order;
(c)the Tribunal ought to have found that the prohibition upon publication of the identity of the practitioner was sufficient to avoid the risk of harm to his mental health; and
(d)the Tribunal failed to assess the impact of the order in relation to patients separately and discretely from the other orders it had made.
This ground, as enunciated, is also hopeless because:
(a)in the reasons given on 30 October 2009, Chaney J specifically justified the maintenance of the order with respect to the identity of the patients on the basis that publication of their identity could endanger the mental health of the practitioner;
(b)there was evidence capable of sustaining that finding;
(c)whether or not an additional order, over and above an order prohibiting the publication of the identity of the practitioner was necessary was a matter for the Tribunal, in the exercise of its discretion, which enlivened no question of law falling within the scope of this court's jurisdiction to entertain appeals from the Tribunal (see s 105 of the Act); and
(d)in his reasons given on 30 October 2009, Chaney J specifically assessed that portion of the order which prohibited publication of the identity of the patients, and considered whether that aspect of the order should be maintained in addition to the various other aspects of the orders.
However, during oral argument, counsel for Nationwide sought to maintain ground 3 on the same basis as ground 1, namely, on the basis that the order prohibiting the publication of the identity of the patients fell outside the scope of the powers conferred by s 62 of the Act (ts 32 ‑ 33). Counsel for the practitioner made no objection to that course, and it is appropriate to consider ground 3 on that basis.

Grounds 1 and 3

Ground 1 (as enunciated) and ground 3 (as presented in oral argument) are concerned with the scope of powers conferred upon the Tribunal to make orders prohibiting the publication of certain matters by s 62 of the Act. As we have noted, Chaney J did not address that issue in his reasons for decision given in July and October 2009, presumably on the basis that it had been addressed by Barker J in his decision published in September 2008. To that extent, those reasons provide the basis for the consideration of this aspect of Nationwide's cross‑appeal and are in any event the subject of Nationwide's appeal in CACV 90 of 2008. It is therefore appropriate to commence with the consideration of the reasons given by Barker J.

The principles of open justice

Barker J's reasons, together with the decision in James and Sayers, and the reasons of Chaney J, the subject of the cross‑appeal, take as their starting point the proposition that the common law principles of open justice, as enunciated in the context of courts which apply common law principles, apply to the Tribunal. As we have suggested, because of the marked differences between the processes and jurisdiction of the Tribunal and those of a court, this is a conclusion which could only be reached as a matter of construction of the statute creating the Tribunal, rather than by a process of unreasoned assumption. Although tribunals are included within the expression 'court' for the purposes of the FOI Act, obviously that inclusion does not characterise the Tribunal as a court for all purposes.
Barker J considered that the principles of open justice were:
Not only … 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 [35].
While there is an obvious analogy between those provisions and the common law principles of open justice applying to courts, in that s 61 of the Act requires the Tribunal to conduct its hearings in public unless it orders otherwise in one or other of the circumstances prescribed by the section, the source of the powers conferred and the obligations imposed upon the Tribunal is the Act, not the common law. While it may be appropriate to construe the relevant statutory provisions by reference to analogous common law principles, ultimately, the scope of the powers and obligations created by the Act is to be found in the language used by the legislature, not in common law principle. That is why these reasons commenced with a review of the relevant provisions of the Act.
Only two sections of the Act create a right of public access to information relating to proceedings before the Tribunal. They are s 155, which confers a right of public inspection of the register required to be maintained by that section, and s 61, which requires the Tribunal to conduct its hearings in public. Further, by s 157 of the Act, members and staff of the Tribunal are prohibited from disclosing certain information. Unlike common law courts, there is no public right of access to documents initiating proceedings in the Tribunal, nor any right to inspect the formal orders or judgments of the Tribunal, save to the extent that they are recorded in the register.
Further, as we have noted, no member of the public has a right to access files maintained by the Tribunal, or documents received by the Tribunal with respect to particular proceedings brought in the Tribunal. By contrast, most courts have rules or procedures permitting access to the files held by the court, sometimes subject to prior approval or upon terms and conditions.
Further, unlike common law courts, the Tribunal has no inherent power to punish for contempt of its proceedings - rather, that jurisdiction is conferred upon the Supreme Court (see s 100 of the Act).
As we have noted, some of the decisions of the Tribunal fail to distinguish between the circumstances in which an order may be made by the Tribunal to the effect that a hearing be held in private pursuant to s 61 of the Act, and the scope of the non‑publication orders which the Tribunal is authorised to make by s 62 of the Act. A consideration of that distinction, and of the difference between the Tribunal and a court is assisted by the decision in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. That case concerned a non‑publication order made by the Police Tribunal of New South Wales. The statute creating that Tribunal declared it to be a court of record. Accordingly, as McHugh JA (with whom Glass JA agreed) observed:
Since the Tribunal is an inferior court of record created by statute, it can have no powers, jurisdictions or authorities other than those authorised by the Act: Irving v Askew (1870) LR 5 QB 208; R v Hackett; Ex parte Cline(1882) 8 VLR (L) 129; Levoune v Bacoulis (1935) AR (NSW) 126. The Tribunal has none of the powers inherent in the courts of the common law - the Common Pleas, the Kings Bench and the Exchequer Chamber (476).
McHugh JA went on to consider the common law principles relating to open justice, as they apply to courts. As his Honour observed, it is a fundamental rule of the common law that the administration of justice must take place in open court. A court is only justified in departing from that rule where its observance would frustrate the administration of justice or some other public interest. Accordingly, orders of a court prohibiting the publication of evidence are only valid to the extent that they are 'really necessary to secure the proper administration of justice' in proceedings before the court: John Fairfax (497) (McHugh JA). Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice.
Further, as McHugh JA observed (477), courts have no general authority to make orders binding people outside the courtroom. An order made in court binds the parties, the witnesses, and other persons present in the courtroom. An order purporting to operate on persons outside that category is only effective because of the inherent powers of the court to punish for contempt of court. Accordingly, breach of a non‑publication order made by a court by a person who is not a party to proceedings or otherwise present in the courtroom is not punishable as a breach of the order of the court by which that person is bound, but rather, as a contempt of court because of its interference with the administration of justice. As we have noted, the Tribunal, not being a court, has no power to punish for contempt. That jurisdiction is conferred upon the Supreme Court if the procedure stipulated in s 100 of the Act is followed.

The Act creating the Police Tribunal considered by the New South Wales Court of Appeal in John Fairfax obliged the Tribunal to sit in public unless it ordered otherwise. McHugh JA drew a sharp distinction between the exercise of the power to exclude persons from a hearing (which is analogous to the power conferred by s 61 of the Act) and the power to order non‑publication of proceedings. His Honour observed:
Section 44(1)(b) gives members of the public a statutory right to attend the hearing. The paragraph also gives the Tribunal power to exclude members of the public from the proceedings. I have no doubt that the power extends to excluding individual members of the public from attending the proceedings. But I cannot see any justification for holding that a power to exclude people from the proceedings includes a power to prevent the publication of evidence in the proceedings by persons who do attend the hearing or includes a power to prevent persons who do not attend the hearing from receiving details of the evidence. In my opinion there is no similarity between a power to exclude people from proceedings and a power to prohibit publication by either those who are permitted to attend the proceedings or by those who do not attend.
The order in question in this case was not even limited to those persons who attended the hearing. It purported to prohibit persons from publishing the evidence irrespective of whether they attended the hearing and irrespective of the source from which they obtained the information. With great respect to the arguments put to us, I cannot see any support in s 44(1)(b) for the making of such a far reaching order (481 ‑ 482).
Unlike the Police Tribunal of New South Wales, or the common law courts, the Tribunal from which this appeal was brought has been given an express power to prohibit publication of the matters specified in s 62 of the Act in the circumstances specified in s 61(4) of the Act. Breach of an order made by the Tribunal under s 62 is not, of itself, an offence, but could be the subject of proceedings in the Supreme Court for contempt of the Tribunal, punishable as if contempt of the Supreme Court.
It is clear from this analysis that there are material differences of some significance between the 'open justice principles' applied in common law courts, and the rights and obligations conferred upon the Tribunal by the Act. Those differences exist in relation to the scope of the right of public access to information and proceedings in the Tribunal, the source and scope of the power to make orders with respect to the non‑publication of material related to proceedings before the Tribunal, and the source and repository of the power to punish for breach of a non‑publication order. These differences reinforce the observation that when an issue arises as to whether the hearing of a Tribunal should be conducted in private, or a non‑publication order made, and if so, its scope, the question is to be resolved by directing attention to the relevant provisions of the Act rather than by emphasis upon the common law principles of open justice which have evolved in relation to courts.
However, this is not to say that an expansive view should be taken of the powers conferred by s 61 and s 62 of the Act to exclude the public from hearings of the Tribunal or to suppress publication of certain material. On the contrary, the language employed by the legislature in those sections compels the conclusion that it was intended that orders would only be made under those sections if necessary to avoid the particular consequences specified in s 61(4)(a) ‑ (g), or 'in the interests of justice' (s 61(4)(h)). The requirement that the order be 'necessary' reinforces the view enunciated by Chaney J that there must be a real and substantial connection between the admission of the public or the publication of material (as the case may be) and the relevant adverse consequence specified in the section or the detrimental effect upon the interests of justice. A remote possibility of harm arising from an indirect or tenuous connection between a failure to make a closed hearing or suppression order will not satisfy the statutory requirement that the order be 'necessary'. Like Chaney J, we would construe the particular consequences specified in s 61(4)(a) ‑ (g) as applying only to consequences of a significant or material kind, and not to consequences which are minor in character, transient or ephemeral.

The relationship between s 61 and s 62 of the Act

We have set out above the conclusions which Barker J drew with respect to the relationship between s 61 and s 62 of the Act, at [45] ‑ [47] of his reasons (see [32] above).
We respectfully disagree with those conclusions. The circumstances in which the Tribunal can make a non‑publication order under s 62 are expressly confined to the circumstances in which it can make an order that a hearing be held in private. We are therefore unable to see any basis upon which s 62 should be characterised as conferring a 'broader power' to make a non‑publication order, than the power to conduct a private hearing. Indeed, the very notion of a 'broader power' is something of a non sequitur, as the powers conferred by s 61 and s 62 are, as McHugh JA pointed out, quite different in character. Moreover, the circumstances in which those powers may be exercised are identical, being the circumstances specified in s 61(4): see s 62(3) of the Act. Further, Barker J seems to have been influenced by the heading to s 62 of the Act. This is an erroneous approach to the construction of the Act, because section headings, unlike headings to parts, divisions or subdivisions of Acts, are not part of the Act: Interpretation Act 1984 (WA) s 32.
At the risk of repetition, although the circumstances in which the powers of the Tribunal may be exercised under s 61 and s 62 are identical, the powers conferred by the two sections are different in character. Section 61 confers a power to conduct a hearing in private, whereas s 62 confers a power to make a general order, potentially applicable to the world at large, prohibiting the publication of anything falling within the scope of s 62(1). The scope of the material falling within that subsection is to be determined by the proper construction of the words used, in the context of s 62 itself, and in the context of the Act as a whole. The proper construction of the words used in s 62(1) is informed by the scope of the power conferred by s 62(3), in that it extends to members of the public, including media organisations, as well as to the parties to the proceedings before the Tribunal, and other participants in proceedings before the Tribunal including witnesses, and those present in the hearing room. Aspects of the Act as a whole which provide context for the interpretation of the words used in s 62(1) include the analysis above which shows that no member of the public has a right of access to anything other than the material contained in the public register maintained pursuant to s 155 of the Act, or what might be gleaned from attendance at a hearing of the Tribunal held in public pursuant to s 61 of the Act. However, by contrast, the parties to proceedings before the Tribunal will have access to a significantly greater quantity of information, including documents provided to the Tribunal by other parties to the proceedings, and the evidence given of events which transpire in hearings of the Tribunal conducted in private pursuant to an order made under s 61 of the Act, or evidence received by the Tribunal in writing pursuant to s 32 of the Act.
Significant also to the proper construction of s 62 of the Act are the provisions of the Act which provide that the Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit, that permit the Tribunal to receive evidence or argument in writing and which authorise the Tribunal to conduct all or part of a proceeding entirely on the basis of documents without a hearing (see s 32 and s 60 of the Act). Significant also is the parliamentary intention, manifest in s 61(4) and s 62(3) to prevent proceedings in the Tribunal giving rise to any of the adverse consequences identified in that subsection including, relevantly to the present case, endangerment to the physical or mental health or safety of any person.

Is s 62 limited to material produced or persons who appear at a hearing?

The first question that must be resolved with respect to the scope of s 62(1), is whether all the categories of material referred to in the subsection are limited to evidence or documents produced, or persons who have appeared, at a hearing of the Tribunal. The considerations which would support that conclusion are:
(a)the circumstances in which a non‑publication order may be made coincide exactly with the circumstances in which an order for a private hearing may be made;
(b)the juxtaposition between s 61 and s 62;
(c)the phraseology used in s 62(1) - namely, 'evidence given before', 'documents produced to', 'appeared before' the Tribunal; and
(d)the fact that no member of the public would have a right to any of the material referred to in the subsection unless it is contained on the public register of the Tribunal, or the information was made public during a hearing.
The considerations which point against construing s 62(1) as being limited to evidence or documents produced at, or persons who have appeared in the course of a hearing are:
(a)there are no words in the section apt to limit its application by reference to the conduct of a hearing;
(b)Parliament plainly intended that the Tribunal could conduct proceedings other than through a hearing, and has expressly authorised the Tribunal to do so in a variety of ways (see eg s 60 of the Act);
(c)there is no reason to suppose that the Parliament considered that the adverse consequences specified in s 61(4), which it obviously desired to avoid, could only flow from publication following a hearing - to the contrary, the language of s 62 is only consistent with a parliamentary intention to confer a power to order non‑publication so as to avoid the specified circumstances, irrespective of whether or not there had been a hearing;
(d)the phraseology used in s 62(1) is apt to describe evidence, documents or persons who have come before the Tribunal in the exercise of its jurisdiction, irrespective of whether they have come before the Tribunal through a hearing; and
(e)the powers conferred by s 62 should not be construed as if they apply only to constrain publication by members of the public or media organisations, because they plainly extend also to constrain publication by parties and other participants in proceedings before the Tribunal who will necessarily have access to much greater information than members of the public.
In our view, having particular regard to the fact that the Parliament has not expressly constrained the powers conferred by s 62 to evidence or documents produced at a hearing, or to persons who have appeared at a hearing, and applying a purposive construction in order to give effect to Parliament's evident intention to avoid the circumstances specified in s 61(4), in the context of the flexible processes and procedures which Parliament has given to the Tribunal, it should be concluded that the operation of s 62 is not confined to evidence or documents produced at a hearing, or to persons who have appeared before the Tribunal in a hearing. This is not to say that the fact that evidence or documents have been presented to the Tribunal at a hearing, or the fact that a person has appeared before the Tribunal at a hearing is irrelevant to the application of s 62, but only that s 62 is not confined to only such evidence, documents or persons.

The scope of a non‑publication order

The next issue which arises is the scope of the matters or material which may be made the subject of a non‑publication order. This issue must be addressed by reference to each of the three categories of matters and material identified in s 62(1).

Evidence

Dealing first with the category pertaining to evidence, it is plain from the terminology used that the evidence must be received by the Tribunal before or at the time the non‑publication order is made. Evidence which is foreshadowed, for example during the opening address of counsel, would not be 'evidence given before' the Tribunal unless and until it is given.
However, the word 'evidence' must be construed in the context of the Act as a whole, which does not oblige the Tribunal to apply the laws of evidence, permits the Tribunal to inform itself as it thinks fit, and expressly authorises the receipt of evidence from witnesses in writing, and allows the Tribunal to decide cases without a hearing (s 32 and s 60 of the Act). In that context, the word 'evidence' should be construed to include anything received by the Tribunal for the purposes of making findings of fact, irrespective of whether it was produced or used at a hearing and would include, for example, the agreed statement of facts which provided the basis for the Tribunal's disposition of the 13 proceedings brought against the practitioner between 2005 and 2007. In this respect, we agree with the observations of Barker J as to the scope of 'evidence' within s 62(1) at pars [48] ‑ [53] of his Honour's reasons, which we have set out above [33].

Documents

Similar temporal considerations apply to the second category in s 62(1) which relates to the contents of documents produced to the Tribunal. Plainly, the documents must have been received by the Tribunal before or at the time the non‑publication order is made.
It is also significant to note that the power to suppress publication in relation to documents produced to the Tribunal is expressed by reference to 'the contents' of those documents. So while it would, of course, be possible to order that the entire contents of any document or documents not be published, it is also possible to order that part only of the contents of a document or documents not be published. But whatever the ambit of the order, it is clear that it must be expressed by reference to the contents of a document or documents which has been produced to the Tribunal before or at the time the non‑publication order is made.
Turning to the meaning of the expression 'documents produced to the Tribunal', there is an obvious correspondence between the terminology used in s 62(1)(b) and the terminology used in the other sections of the Act relating to the production of documents to which we have already referred - namely, s 35, s 36, s 66 and s 72. There is no reason to suppose that the legislature intended that the expression 'documents produced to the Tribunal' bear a meaning in s 62 which is different to the meaning which the same or cognate expressions bear in s 35, s 36, s 66 and s 72.
Insofar as s 34(5) enables the Tribunal to order a document to be produced to 'another party', it facilitates, in effect, inter partes discovery. The provision of a document 'to the Tribunal' facilitates the power of the Tribunal to 'inform itself of any matter it sees fit' (s 32(4)) and its obligation to 'ensure that all relevant material is disclosed to the Tribunal' (s 37(5)(a)). In Victoria, it has been held that documents which have, in effect, been 'discovered' pursuant to the relevant provision in the Victorian legislation in proceedings in the Victorian Civil and Administrative Tribunal, are subject to an implied undertaking or obligation of the kind which exists in relation to documents discovered in a court: Turner v Department of Education and Training [2006] VCAT 2661 [25] ‑ [26]; Kakoullis v Transport Accident Commission [2006] VCAT 1051; (2006) 25 VAR 18 [4] ‑ [7]; Secretary, Department of Treasury & Finance v Kelly [2001] VSCA 246; (2001) 4 VR 595, 614. Although the Victorian Tribunal has power to punish for contempt (s 137(1) of the Civil and Administrative Tribunal Act 1998 (Vic)), those cases do not appear to hold that the existence of a direct power to punish for contempt is a pre-requisite for the implication of the obligation of confidentiality. The nature of the obligation has been discussed by Hayne, Heydon and Crennan JJ in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [102] ‑ [112]. In Otter Goldmines Ltd v McDonald (1997) 76 FCR 467, 471 ‑ 472, Sundberg J held that the true basis of the obligation lay in the fact that the documents, whether produced on discovery, subpoena or any other order, were produced under compulsion and it did not matter that the Tribunal in that case had no power itself to enforce the undertaking by proceedings for contempt. The point was also mentioned by Barker J in the Nationwidedecision [66], but his Honour noted that the question did not require solution on that occasion. Whilst there would seem to be much to commend the proposition that there is an implied obligation of the kind which exists in relation to documents discovered in the course of court proceedings in relation to documents which are produced by compulsion under the Act, the point was not argued and it is not necessary to decide it for the purposes of this case.
As we have noted, there are two sections of the Act, s 35 and s 66, which empower the Tribunal to compel the production of documents by persons who are not parties to proceedings before the Tribunal. Section 35 enables the Tribunal to order the production of documents to the Tribunal or to a party to proceedings, and can be considered as somewhat analogous to the power of a court to order that discovery be given by persons who are not parties to the court proceedings. Section 66 empowers the Tribunal to issue a summons requiring the production of any document or other material 'before the Tribunal'. This section makes express provision for the payment of fees and allowances for attendance.
As to the relationship between s 35 and s 66, in Douglas and Van May (WA) Pty Ltd [2005] WASAT 318 [13], the Tribunal said:
... While the SAT Act does not clearly indicate when s 35 should be used rather than s 66 for the production of documents, it would appear that s 35 should be used when it is intended to have documents produced prior to the substantive hearing date which is what the applicant required. In this regard, see the discussion in Pizer J, 'Annotated VCAT Act', JNL Nominees Pty Ltd, 2nd ed Melbourne, 2004 at par 3882 discussing the equivalent Victorian provisions.
That observation, with respect, would seem to be correct. The subject matter of s 66, including the provision for the payment of fees and allowances in the language of s 66(1)(a) and (b) which refers to attendance 'before the Tribunal' and production 'before the Tribunal', all suggest that the provision is concerned with a hearing before the Tribunal for the purpose of the disposition of the proceedings. Further, s 66 is found in pt 4, 'Tribunal's procedures', div 3, 'proceedings and hearings'. Section 35, like s 34, is within div 1 of pt 4, which is headed 'introduction'. Section 35 facilitates, but is not confined to, third party discovery.
By s 72, the Tribunal may inspect any document or other material 'produced before it' and retain it for as long as it reasonably thinks fit, and make copies of any document or any of its content. Like s 66, s 72 is found in pt 4, div 3 'proceedings and hearings'. Unlike section headings, as we have already noted, headings to parts, divisions or subdivisions of Acts are part of the Act and can be used to assist the construction of particular provisions of the Act - Interpretation Act 1984 (WA), s 32. It is appropriate to conclude that s 72, like s 66, is concerned with documents produced to the Tribunal at a hearing.
From this analysis, it is possible to group the sections of the Act which use similar phraseology to that used in s 62(1)(b) in respect of the production of documents to the Tribunal into a number of classes. First, s 34 and s 35 are concerned with production of documents to the Tribunal independently of any hearing of the Tribunal. As we have noted, those sections are consistent with the various provisions of the Act which expressly authorise the Tribunal to perform its functions without necessarily convening a hearing. On the other hand, s 66 and s 72 are concerned with the production of documents to the Tribunal at a hearing.

Secondly, s 34, s 35 and s 66 each confer power upon the Tribunal to compel the production of documents. However, s 72 is not confined to documents produced to the Tribunal at a hearing under compulsion, but extends to any document produced to the Tribunal in the course of a hearing.
It follows that the sections in which similar phraseology is used to that engaged in s 62(1)(b) extend to and include documents:
(a)produced to the Tribunal in the exercise of its power to order production (under s 34, s 35 or s 66); and
(b)documents produced to the Tribunal in the course of a hearing (s 72).
The expression 'documents produced to the Tribunal' should be given a similar ambit in s 62(1)(b) - namely, it should be construed as applying to any documents produced to the Tribunal pursuant to the exercise of the powers of the Tribunal to order the production of documents, and to any documents produced to the Tribunal during the course of a hearing.

'The subject matter of the application'

Barker J expressed the view that the expression 'the subject matter of the application', which was the terminology used in the non‑publication orders his Honour made, was a convenient short‑hand expression to identify the contents of all the documents which had been received by the Tribunal in connection with all the proceedings concerning the practitioner and which he considered fell within the scope of s 62(1)(b) of the Act. Barker J considered that expression to be clear and unambiguous: Nationwide decision [70]. There are a number of reasons why we respectfully disagree with this approach.
First, the natural and ordinary meaning of the expression 'the subject matter of the application' would not restrict its operation to the content of any particular document or documents produced to the Tribunal. In its natural and ordinary meaning, the expression would comprehend the substantive allegations of misconduct made against the practitioner, the question of whether or not the facts established by the evidence produced to the Tribunal established misconduct, and if so, the penalty appropriately applied by the Tribunal.
Second, far from being unambiguous, an order prohibiting publication of 'the subject matter of the application' would, on its face, prohibit a media organisation such as Nationwide from publishing any facts which might be asserted in the application before the Tribunal, irrespective of the source of the information utilised in the publication. So, if one of the practitioner's patients had approached Nationwide making allegations against the practitioner, and Nationwide had published those allegations, it would, on the face of the Tribunal's order, be in breach of the order merely because there was a coincidence between the facts provided to Nationwide by the complainant, and the facts asserted in the application to the Tribunal by the Board, of which Nationwide may have no knowledge. Just as a court has no power to make orders binding upon third parties who are not parties to the proceedings before it (John Fairfax (477) (McHugh JA)), and can only constrain the activities of such persons through the power to constrain conduct which interferes with the administration of justice as a contempt of court, the powers conferred upon the Tribunal by s 62 of the Act can only arise as a consequence of the person obtaining information which he or she would not otherwise have had as a consequence of proceedings before the Tribunal. Put another way, it would be absurd to attribute to the Parliament an intention to empower the Tribunal to make orders prohibiting publication or discourse on any matter or subject merely because it happened to be a matter or subject before the Tribunal. The language of s 62 is only consistent with a parliamentary intention that there should be a connection between the non‑publication order and the receipt of information as a consequence of proceedings before the Tribunal. That is apparent from the specification of the matters which can be made the subject of a suppression order pursuant to s 62, namely, evidence given before the Tribunal, documents produced to the Tribunal, and information which might identify a person who has appeared before the Tribunal.
So, in the case of a party to, or participant in proceedings before the Tribunal, orders can be made prohibiting publication of the contents of documents which have been received in that capacity provided that they have also been 'produced to the Tribunal' within the meaning we have given to that expression in s 62(1)(b). In the case of a member of the public, or a representative of a media organisation attending a public hearing, an order could be made prohibiting the publication of the content of a document produced to the Tribunal in the course of that hearing so as to prevent republication by persons or media organisations who may have been given the document or informed of its contents by a party or other participant. However, in each case, the relevant constraint must be connected to the contents of a document or documents produced to the Tribunal in the exercise of its jurisdiction. The terminology used in the orders made by Barker J, and repeated in the subsequent orders of the Tribunal in these proceedings, does not provide that requisite connection, nor does it identify the document or documents or their contents which are the subject of the constraint.
Third, it is reasonable to construe s 62 as embodying a parliamentary intention that orders made by the Tribunal pursuant to its terms should be clear and unambiguous in their operation or effect. That is because an order which is unclear or ambiguous could not be enforced by way of proceedings for contempt of court, as must have been contemplated by the Parliament. However, the ambit of the order made by Barker J, which was clearly intended to bind the world at large, including media organisations such as Nationwide, is defined by reference to a confidential document to which no‑one other than the Tribunal and the parties to the substantive proceedings before the Tribunal had a right of access - namely, the application in each set of proceedings. In such a circumstance, it was impossible for Nationwide to know whether or not it would be in breach of the order by publishing information which it had obtained from a source other than the application itself.
Fourth, the power to make a non‑publication order under s 62 can only be exercised to the extent necessary to avoid one or other of the consequences specified in s 61(4) of the Act. Before any order can be made with respect to the contents of a particular document, it is necessary for the Tribunal to conclude that such an order is necessary because publication of those contents would create a real and substantial risk of one or other of the specified consequences coming to pass, or that such an order is necessary in the interests of justice. However, Barker J justified his use of the expression 'subject matter of the application' on the basis that it would extend to all the contents of each and every document received by the Tribunal in each and every proceeding brought against the practitioner. Such an approach ignores the process of reasoning that it is necessary for the Tribunal to undertake before making an order prohibiting publication of the contents of a document and exceeds the powers conferred by s 62 of the Act, because it fails to address the requisite connection between the contents of the relevant document or documents, and the real or substantial risk of one or other of the consequences specified in s 61(4) occurring, or the interests of justice being adversely affected, if publication is not prohibited.

Identity of a person appearing

Turning then to the third category of material falling within s 62(1), the same process of reasoning as has been applied to the earlier categories leads to the conclusion that an order can only be made if a person has participated in proceedings before the Tribunal before or at the time the order is made. So, a reference by counsel in the course of opening a case before the Tribunal to a witness who was to be called during the hearing could not, at that stage, be the subject of an order prohibiting publication of identity under s 62 because the relevant witness had not then appeared before the Tribunal.
Consistently with the approach taken to other categories of material specified in s 62(1), the expression 'appeared before' should be construed in the context of those provisions of the Act which enable persons to participate in the proceedings of the Tribunal without being physically present at a hearing. Section 3 of the Act provides that 'appear at a hearing' means to appear in person or participate in any way allowed under the Act. Once a person has 'appeared before' the Tribunal by appearing in person or participating in any way allowed under the Act, the Tribunal is empowered to make an order prohibiting publication of any information that might enable that person to be identified, including information contained in the opening address of counsel.
It will be apparent from these observations that, as we would construe the Act, there will be occasions upon which things might be said in the course of public hearings before the Tribunal which could not be the subject of a non‑publication order under s 62 of the Act. The opening addresses and submissions of counsel would very often fall within this category because they are not themselves evidence, they may not reproduce the contents of documents produced to the Tribunal, or might not relate to the identification of a person who has at that time relevantly participated in proceedings before the Tribunal, However, once a person has 'appeared before' the Tribunal, or documents have been produced to it, or evidence has been given, orders might be made which could affect the publication of information contained in opening submissions to the extent that information coincides with the material suppressed. However, this conclusion does not reveal a flaw in the statutory scheme, having regard to the power of the Tribunal to order that a hearing or any part of it be held in private if the Tribunal considers it is necessary to make such an order to avoid one or other of the consequences specified in s 61(4). Accordingly, that power can be exercised by the Tribunal in appropriate circumstances in order to avert the adverse consequences that might flow from the general publication of matters falling outside the scope of s 62.
It follows from the construction which we would apply to s 62 of the Act that ground 1 of Nationwide's cross‑appeal must be upheld. The orders made on 12 March 2010 prohibiting publication of the 'subject matter of the application' in each of the 13 proceedings commenced against the practitioner between 2005 and 2007 exceeded the powers conferred upon the Tribunal by s 62 of the Act, as did the various orders previously made in the proceedings against the practitioner in similar terms. That is because the orders have not been made by reference to any evidence given before the Tribunal, or the content of any particular document or documents produced to the Tribunal, and go well beyond orders prohibiting the publication of anything which might enable the identification of any person who has participated in the proceedings of the Tribunal.
Further, ground 3 as formulated during argument must also be upheld. That is because the orders made prohibiting publication of the identity of the patients of the practitioner have not been made by reference to the content of any document produced to the Tribunal, nor by reference to any evidence received by the Tribunal. Nor could the patients be considered to be persons who had 'appeared before' the Tribunal, as the proceedings involving their complaints were apparently resolved without it being necessary for any of the patients to give evidence or to participate in any way in the proceedings.
However, this is, of course, not to say that it was not open to the Tribunal to make orders covering at least some of the ground covered by the orders which it made, by reference to evidence given before the Tribunal (such as the agreed facts upon which the Tribunal disposed of the proceedings commenced between 2005 and 2007), or by reference to the specified contents of a particular document which had been 'produced to the Tribunal' in the sense we have described. However, we do not have before us the information which would be necessary to identify precisely what evidence had been given before the Tribunal, what documents had been produced to it, or which persons had appeared before it, in the construction which we place upon those expressions in the context of s 62 of the Act.
A question arises as to the appropriate course to be followed to give effect to our conclusions. In the ordinary course, where a court concludes that orders made by an inferior Tribunal are beyond power, the court will set aside those orders and either substitute its own orders (if empowered to do so, as in this case by s 105(9) of the Act) or remit the matter to the Tribunal for reconsideration according to law. In this case, the court lacks the practical capacity to substitute its own orders for those made by the Tribunal, because it does not have before it any of the documents produced to the Tribunal in its exercise of its jurisdiction, nor the evidence given before the Tribunal, nor can we identify all the persons who may have 'appeared' before the Tribunal. However, if this court were to set aside those parts of the Tribunal's orders which it considers beyond power before remitting the matter to the Tribunal for reconsideration according to law, there is at least a theoretical possibility that the Tribunal's reconsideration may become otiose, because of publication in the interim. We express this possibility as theoretical, because there is nothing before the court to suggest that Nationwide, or any other media organisation or member of the public, has access to any of the documents produced to the Tribunal nor to any evidence given before the Tribunal, nor to any statement of agreed facts. Nevertheless, against the theoretical contingency of publication occurring between the setting aside of the Tribunal's orders, and the Tribunal's reconsideration of those orders, the court should direct that its order setting aside those parts of the non‑publication orders which are beyond power be stayed until such time as the Tribunal has had an opportunity to further consider the matter and make a determination as to the ambit of any non‑publication orders properly made in accordance with these reasons.

Ground 2

As we have noted, ground 2 of the cross‑appeal as enunciated in the cross‑appeal must be dismissed for the reasons we have identified briefly above. The additional ground added to ground 2 during the course of argument can be dismissed almost as briefly. First, the ground incorrectly assumes that the principles relating to open justice applicable in common law courts apply with equal force to the Tribunal. The correct position is that the rights and duties of the Tribunal are to be determined by reference to the proper construction of the Act. It is clear from s 61 of the Act that Parliament intended the hearings of the Tribunal to be held in public unless the Tribunal orders otherwise because it considers it necessary to proceed in private to avoid one of the circumstances identified in s 61(4)(a) ‑ (g) or because it is necessary to do so in the interests of justice. However, that parliamentary intention is not necessarily congruent with the common law principles of open justice, given the various differences between the processes and jurisdiction of the Tribunal, and the processes and jurisdiction of the courts applying common law principles.
Second and in any event, in each of his reasons delivered on 20 July 2009, and on 30 October 2009, Chaney J expressly referred to and acknowledged the public interest in public access to the proceedings of the Tribunal. Accordingly, ground 2 should be dismissed.

Conclusion

Grounds 1 and 3 (as formulated in argument) of Nationwide's cross‑appeal should be upheld. Ground 2 should be dismissed. Orders should be made setting aside those parts of the orders made by the Tribunal on 12 March 2010 which prohibit publication of 'the subject matter of the application' and the identities of the patients referred to in the proceedings before the Tribunal. Further, the proceedings should be remitted to the Tribunal in order that the Tribunal can give further consideration to the non‑publication orders properly made according to law. The orders of the court setting aside those parts of the Tribunal's orders which are beyond power should be stayed until the Tribunal has had the opportunity to give further consideration to the orders properly made and has made orders giving effect to that reconsideration.