Perrotta & Perrotta
[2021] FedCFamC2F 61
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perrotta & Perrotta [2021] FedCFamC2F 61
File number(s): BRC 3049 of 2019 Judgment of: JUDGE SPELLEKEN Date of judgment: 16 September 2021 Catchwords: FAMILY LAW – subpoena objection - where the mother sought a subpoena from the Office of the Health Ombudsman – where the Office of the Health Ombudsman objected to that subpoena on the grounds of relevance, insufficient particulars and confidentiality – where the material sought in the subpoena is relevant – where the relevant statute provides the Office of the Health Ombudsman is not required to disclose confidential information to a court or tribunal. Legislation: Family Law Act 1975 (Cth) s 4AB;
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01;
Health Ombudsman Act 2013 (Qld) ss272, 274.
Cases cited: Hatton & Attorney-General (Cth) and Ors (2000) 26 Fam LR 570;
Trade Practices Commission v Arnotts Limited (No. 2) (1989) 21 FCR 306.
Division: Division 2 Family Law Number of paragraphs: 34 Date of last submission/s: 15 September 2021 Date of hearing: 15 September 2021 Place: Brisbane Solicitor for the Applicant: Pippa Colman & Associates Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: McInnes Wilson Lawyers Counsel for the Other: Mr Templeton ORDERS
BRC 3049 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PERROTTA
Applicant
AND: MS PERROTTA
Respondent
OFFICE OF THE HEALTH OMBUDSMAN
Other
ORDER MADE BY:
JUDGE SPELLEKEN
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS:
1.That the Notice of Objection to Subpoena filed by the Office of the Health Ombudsman on 30 August 2021 be upheld.
2.That pursuant to rule 6.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the father produce to the mother by no later than 4:00pm on 17 September 2021 all complaints and correspondence with the Office of the Health Ombudsman and/or AHPRA including any correspondence from the father to those organisations and vice versa in relation to;
(a)the mother;
(b)the maternal grandparents; and
(c)D Pty Ltd
Costs
3.That the Office of the Health Ombudsman’s costs of and incidental to the Notice of Objection to Subpoena filed 30 August 2021 be reserved.
4.That the Office of the Health Ombudsman file and serve written submissions on the issue of costs by no later than 4:00pm on 30 September 2021.
5.That the mother file and serve written submissions on the issue of costs by no later than 4:00pm on 14 October 2021.
6.That if he chooses to do so, the father file and serve any written submissions on the issue of costs by no later than 4:00pm on 14 October 2021.
7.That the Office of the Health Ombudsman file and serve and reply as to law on the issue of costs by no later than 4:00pm on 28 October 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Spelleken
INTRODUCTION
These reasons for judgment relate to a Notice of Objection to Subpoena filed by the Office of the Health Ombudsman (herein ‘OHO’) in response to a subpoena filed by the mother on 9 August 2021.
BACKGROUND
The substantive proceedings were commenced by the father on 18 March 2019 seeking orders in relation to both parenting and property matters.
The mother filed her response material on 15 August 2019.
On 20 November 2020, after a number of appearances before the Court I made orders setting the matter down for final hearing of not more than three days commencing on 20 September 2021.
On 9 August 2021, no doubt in preparation for the final hearing, the mother issued a number of subpoena’s to various entities, one of which included the OHO. In that subpoena the mother sought the production of the following documents:
1. a copy of this subpoena
2. All documents, records, reports and writings for the period 17 June 2018 to the date of the subpoena, from your custody or control, including but not limited to:
a. any complaints made by [MR PERROTTA] born […] 1987 against [MS PERROTTA] born […] 1987, [MS B] born […] 1953, [MR C] born […] 1990 and [D Pty Ltd];
b. Any Letter to Notifiers or Outcome Letter’s (AHPRA) or Notice of Decision (OHO) where the notifier is [MR PERROTTA] born […] 1987;
c. any other documents, notes reports records, files, memoranda, books and correspondence held in relation to:
[MR PERROTTA] born […] 1987
[MS PERROTTA] born […] 1987
[MS B] born […] 1953
[MR C] born […] 1990 and
[D Pty Ltd].
On 30 August 2021 the OHO filed a Notice of Objection to Subpoena in relation to the documents the mother sought to have produced.
The hearing of that objection took place before me on 15 September 2021.
THE NATURE OF THE OBJECTION
The grounds for the objection by the OHO, as set out in the Notice of Objection to Subpoena filed on 30 August 2021 are three-fold:
(1)That the documents to be produced fall within the definition of ‘confidential information’ under section 272(8) of the Health Ombudsman Act 2019 (Qld) and by virtue of section 274(1) are therefore not required to be produced;
(2)That the documents have no apparent relevance to the proceedings; and/or
(3)That the subpoena fails to particularise the documents required for production with sufficient particularity so as to make the request oppressive.
I intend to deal with each ground sertiam.
THE RELEVANCE ISSUE
As outlined above the OHO objects to the subpoena on the grounds that the documents to be produced have no apparent relevance to an issue in the proceedings.
The test of relevance in the context of documents to be produced under a subpoena is set out in the decision of Trade Practices Commission v Arnotts Limited (No. 2) (1989) 21 FCR 306 and is as follows:
… Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the person at whose request the subpoena was issued].
The test in Trade Practices Commission v Arnotts Limited (supra) has been cited with approval on a number of occasions in this jurisdiction.[1]
[1] See for example Hatton & Attorney-General (Cth) and Ors (2000) 26 Fam LR 570.
On the evidence before me it would seem the mother issued the subpoena to the OHO as a result of a complaint the father made in relation to the professional conduct of the mother at D Pty Ltd where she works as a healthcare professional. As it transpires that complaint was ultimately dismissed by the OHO.
Counsel for the mother made oral submissions to the effect that family violence has regrettably been a feature of the relationship between the mother and father, and that the documents to be produced by the OHO would tend to demonstrate a form of coercive control by the father.
I make no findings in relation to the conduct of the father at this juncture but I accept, in light of the submissions made by counsel for the mother, that the documents to be produced by the OHO are potentially relevant. In my view, the documents may serve a legitimate forensic purpose in establishing coercive and controlling behaviour by the father, an issue that will no doubt be tested at the final hearing.
THE PARTICULARISATION ISSUE
Counsel for the mother conceded during the course of oral submissions that the particulars of the documents requested in the subpoena were too broad and sought to confine the scope of the subpoena to what is contained at paragraph 2(a) with the addition of the words “any complaints, correspondence and transcript of telephone communications”.
I consider this was an appropriate concession. I also consider, in light of what has been discussed at paragraphs [14] and [15] above that it cannot be said that the production of documents by the OHO in relation to “any complaints, correspondence and transcript of telephone communications” about the mother is oppressive or an abuse of process. There is clearly a legitimate forensic purpose in seeking to have those documents produced.
Notwithstanding the concession by counsel for the mother, counsel for the OHO made further oral submissions that the request for documents in relation to individuals and companies who are not parties to the proceedings was still too broad and thus, oppressive.
With respect to the documents in relation D Pty Ltd, that company is the mother’s employer, and it was the mother’s conduct at D Pty Ltd that the father made the complaint about. The other two named persons on the subpoena are the maternal grandparents. I accept the submissions made by Mr Templeton that both of D Pty Ltd and the maternal grandparents are alien to these proceedings. However, the definition of family violence under section 4AB of the Family Law Act 1975 (Cth) is very broad and in my view would include any attempt by the father to coercively control the mother through the instigation of baseless complaints against the maternal family and/or the mother’s employer.
It is for that reason I do not consider the subpoena, in its confined form, to be oppressive as asserted by the OHO.
THE CONFIDENTIALITY ISSUE
As premised above, the OHO objects to the subpoena and relies on the ‘confidential information’ provisions contained in the Health Ombudsman Act 2019 (Qld) sections 272 and 274. Relevantly, section 272 provides:
Confidentiality
272 Confidentiality
(1) This section applies to a person who is or was any of the following persons—
(a) the health ombudsman;
(b) a staff member of the Office of the Health Ombudsman;
(c) a member of a committee or panel established under section 29 ;
(d) an inquiry member;
(e) an authorised person;
(f)another person engaged by the health ombudsman to help in the performance of the health ombudsman’s functions.
(2)The person must not disclose confidential information to anyone else except to the extent the disclosure is permitted under this section.
Penalty—
Maximum penalty—100 penalty units.
(3)Confidential information may be disclosed in the performance of a function under this Act or to the extent required or permitted under this Act.
Example—
Confidential information may be disclosed to a member of a committee or panel established under section 29 for the purpose of the member providing advice to the health ombudsman.
(4)Confidential information about a person may be disclosed to the person or with the person’s consent.
…
(6) Confidential information may be disclosed—
(a) to the Minister or the parliamentary committee; or
(b) to the National Agency or a National Board; or
(c) to a government entity with functions—
(i) that correspond to functions of the health ombudsman under this Act; or
Example—
the Health Care Complaints Commission under the Health Care Complaints Act 1993 (NSW)
(ii) about protecting the health and safety of the public; or
Examples—
•the Queensland Police Service
•the department in which the Hospital and Health Boards Act 2011 is administered
•the chief health officer under the Hospital and Health Boards Act 2011
•a coroner under the Coroners Act 2003
(d)to the extent required or permitted under the National Law or another Act (whether of the Commonwealth or a State); or
(e)in compliance with lawful process requiring production of documents or giving of evidence before a court or tribunal; or
(f) to an entity, or for a purpose, prescribed under a regulation.
…
(8) In this section—
"confidential information" means information that—
(a) is not publicly available; and
(b) is in a form that identifies a person who—
(i)is or was a complainant under this Act or was a complainant under the repealed Act; or
(ii)is or was a health service provider or was a provider under the repealed Act; or
(iii)was provided with a service by a health service provider or was a user under the repealed Act; or
(iv)gave information to the health ombudsman under this Act or to the former commission under the repealed Act; and
(c)was acquired by, or may be accessed by, a person in his or her capacity as a person mentioned in subsection (1) .
"disclose" includes give access to.
…
"information" includes a document…
Section 274 then goes on to state:
Disclosure of information for legal proceeding
274 Disclosure of information for legal proceeding
(1)A person is not required to disclose confidential information to a court or tribunal, or to produce a document containing confidential information to a court or tribunal, unless it is necessary to do so for a purpose of this Act or the National Law .
(2)Subsection (1) does not apply to the disclosure of information or production of a document to a court or tribunal in a criminal proceeding or disciplinary proceeding.
(3) In this section—
"confidential information" see section 272 (8) .
Counsel for the OHO says in relation to this issue in his written submissions:
13.Thus, the question is whether the confidential information may be disclosed in accordance with s.272(6)(e) having regard to the operation of s.274(1). The question is to be resolved by the application of the ordinary principles of statutory interpretation.
Accordingly, it is convenient to recite some of the relevant rules and canons of statutory construction:
(a)Firstly, the task must begin with a consideration of the statutory text: Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 at [47].
(b)Secondly, the interpretation which best achieves the purpose of the Act is to be preferred: see i.e. s.14A Acts Interpretation Act 1954 (Qld) (AIA).
(c)Thirdly, the relevant provision must be construed so that it is consistent with the language and purpose of all of the provisions of the statute. The Act should be viewed as a whole: Project Blue Sky Inc v ABA (1998) 194 CLR 335, see [69] and [78].
(d)Fourthly, each provision of an Act must be given separate work to do: see Plaintiff M70/2011 v Minister of Immigration and Citizenship (2011) 244 CLR 144 at [97] and authorities cited.
(e)Fifthly, in circumstances where there are two apparently conflicting provisions, the Parliament cannot have intended the general provision to have deprived the specific provision of effect: Smith v R (1994) 181 CLR 338 at 348; see also: Ombudsman v Laughton (2005) 64 NSWLR 114 at [19] per Spigelman J
In relation to the objects of the Health Ombudsman Act 2019 (Qld) counsel for the OHO says in his written submissions:
15.Moving to purpose, the main objects of the HO Act are stated in s.3. They are (underlining added):
‘(a) to protect the health and safety of the public; and
(b) to promote—
(i)professional, safe and competent practice by health practitioners; and
(ii)high standards of service delivery by health service organisations; and
(c)to maintain public confidence in the management of complaints and other matters relating to the provision of health services.’
16.By s.4(1) of the HO Act, the main principle for administering the Act is that the health and safety of the public are paramount.
17.Regarding the interpretation which best achieves the purpose of the Act, there are several aspects of the HO Act which are evidently designed to achieve the object of ‘maintain[ing] public confidence in the management of complaints.’ They include:
(a) timeliness in dealing with complaints: s.15;
(b) keeping complainants informed: s.17;
(c) protections for complainants against reprisal: ss.261 – 263;
(d)protections for complainants against liability, including defamation: s.275;
(e) the confidentiality protection provided by s.272.
18.The presence of these provisions demonstrates that the Parliament has gone to great lengths to facilitate the making of complaints and protect those who do so. Public confidence in the system of complaints requires that those protections be maintained, and any diminution of them may dissuade complainants and therefore run contrary to the objectives and main purpose of the HO Act, set out above. Accordingly, the interpretation of ss.272 and 274 which best achieves the purpose of the Act is one which most fulsomely maintains the protection of confidentiality.
I accept those submissions.
Moving then to the operative effect of sections 272 and 274. While at first brush it may appear that the provisions are in direct contradiction with each other, on closer inspection, I do not consider this to be the case.
In my view, section 272 is an offence creating provision in relation to the disclosure of ‘confidential information’ as that term is defined. That much is clear where section 272(2) provides for a maximum penalty of 100 penalty units for any illegal disclosure of confidential information.
The latter parts of section 272 provide a list of circumstances in which confidential information may be disclosed. One such exception includes disclosure that is:
… in compliance with lawful process requiring production of documents or giving of evidence before a court or tribunal.
Section 274 then operates entirely separate to section 272 in circumstances where it specifically provides for the “Disclosure of information for legal proceeding”.
The words “a person is not required to disclose” in section 274(1) in my view are seminal to the operation of section 274. It provides for a situation where a person may elect to disclose confidential information to a court or tribunal should they choose, but that person is by no means compelled to do so. There is no positive obligation on a person to make that disclosure. That position changes when the proceedings are criminal or disciplinary in nature. Section 274(2) makes it clear that section 274(1) does not apply to those types of proceedings.
In those circumstances I am left with little choice but to uphold the objection of the OHO. The OHO is exercising a statutory right under the Health Ombudsman Act 2019 (Qld) not to disclose the documents sought in the subpoena filed by the mother on 9 August 2021. The legislation makes it clear that they are “not required to” make such disclosure and I cannot therefore compel them to do so with any order I may make.
CONCLUSION
Notwithstanding my decision to uphold the objection by the OHO, the nature of the documents sought by the mother in the subpoena are all things which the father will likely have in his possession or control. I note that it does not appear to be in dispute between the parties that the father made the complaints alleged by the mother and in any event there is sufficient evidence in the affidavit material before me to establish that such a complaint was made. It also seems from the evidence that is presently before me that the mother is aware of the nature of the complaint, that the OHO dismissed the complaint, and that the father unsuccessfully sought a review of the complaint.
I will nonetheless make an order that pursuant to rule 6.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the father produce to the mother by no later than 4:00pm on 17 September 2021 all complaints and correspondence with the OHO and/or AHPRA in relation to; the mother, the maternal grandparents and D Pty Ltd.
I will also reserve the costs of the OHO incidental to the subpoena filed by mother and I will deal with the issue of costs on the papers.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Spelleken. Associate:
Dated: 16 September 2021
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