Psychology Board of Australia and Anor and Vicary and Ors

[2013] FCWA 7

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: PSYCHOLOGY BOARD OF AUSTRALIA & ANOR and VICARY & ORS [2013] FCWA 7

CORAM: MONCRIEFF J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 23 JANUARY 2013

FILE NO/S: PTW 3442 of 2002

BETWEEN: PSYCHOLOGY BOARD OF AUSTRALIA

First Applicant

AND

AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
Second Applicant

AND

TERRY VICARY
First Respondent

AND

LOUISE ENRIGHT
Second Respondent

AND

DR ABRAM
Intervener

Catchwords:

PRACTICE AND PROCEDURE - where statutory body seeks to be released from implied undertaking relating to documents produced under subpoena by child's treating psychologist to investigate complaint made by father who copied documents produced - need to show

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special circumstances - public interest - need to safeguard child's best interests - application dismissed

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 1998 (WA)
Family Law Rules 2004 (Cth)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)

Category: Not Reportable

Representation:

Counsel:

First Applicant : Mr A Mossop

Second Applicant : Mr A Mossop

First Respondent : Self Represented Litigant

Second Respondent : Self Represented Litigant

Intervener: Ms S Latham

Independent Children's Lawyer : Ms N Hossen

Solicitors:

First Applicant : Tottle Partners

Second Applicant : Tottle Partners

First Respondent : Self Represented Litigant

Second Respondent : Self Represented Litigant

Intervener: SRB Legal

Independent Children's Lawyer : Chris Stokes & Associates

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

Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476
Bergman & Bergman (No. 4) [2008] FamCA 525
Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41
Hearne and Another v Street and Others (2008) 248 ALR 609
Home Office v Harman [1983] 1 AC 280
Prime Finance Pty Ltd and Ors v Randall and Ors [2009] NSWSC 361
Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217
Thornton & WorkCover Corporation of South Australia [2009] FamCA 449

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WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The interim application the Court must determine is concerned with the use of material produced under subpoena, from [Dr Abram], which material includes his clinical notes in relation to [KEITH ENRIGHT], (“Keith”) born [in] 1999 the child of the primary parties to these proceedings, [TERRY VICARY](“the father”) and [LOUISE ENRIGHT] (“the mother”).

2The Psychology Board of Australia and the Australian Health Practitioner Regulation Agency (together known as “the Applicants”) filed a Form 2 application on 6 August 2012 seeking to use Dr Abram’s clinical notes and any documents derived therefrom for the purposes of production of a report.

3The report is being produced as a result of a Notification made by the father to the Australian Health Practitioner Regulation Agency (“AHPRA”) regarding Dr Abram’s treatment of the parties’ child, Keith.

4The central issue to this dispute arises from the fact that the father attached to a letter he sent to AHPRA, 8 pages of handwritten notes which were essentially reproductions made by him of Dr Abram’s clinical notes. The Notification then came before the Psychology Board of Australia which resolved to investigate the matter.

5The investigator, in accordance with his powers under the Health Practitioner Regulation National Law (WA) Act2010 (WA), required Dr Abram to provide him with a photocopy of the clinical notes. Dr Abram complied, however, objected to the production of the material and contended that the father had used the subpoenaed material for a collateral purpose in breach of his implied undertaking to the Court.

6This led to the Applicants bringing this application for use of the clinical notes and any documents derived therefrom, including the Notification and the father’s handwritten notes.

7The father, who is the complainant, to the Applicants, supports the Applicants’ application.

8Dr Abram, was granted leave to appear in respect of this application and filed a Form 2A response on 18 September 2012 opposing the application and seeking no orders be made in relation to use of the material.

9The former Independent Children’s Lawyer (“ICL”), who was granted leave to appear in respect of this application, also opposes it.

Brief background

10In the substantive proceedings the father has made an application for parenting orders in relation to Keith.

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11The father is 58 years of age and the mother is 40 years of age. The parties commenced cohabitation in about December 1998 and finally separated around March 1999.

12Consent orders were made on 19 July 2002 some of which were discharged and replaced with further consent orders on 20 April 2005.

13The father instituted proceedings seeking alternative parenting orders on 28 May 2009 and the wife filed her response on 26 June 2009. The parenting orders currently in place provide for the child to live with the mother and spend time with the father on alternate weekends.

14On 30 June 2009 orders were made that an ICL be appointed to act on behalf of Keith and subsequently Ms Stokes (“the ICL”) was appointed in that capacity.

15On 31 July 2009 [Ms C] was appointed as Single Expert in the proceedings and she provided a Single Expert report to the Court on 8 February 2010.

16At the request of the ICL a subpoena was issued to Dr Abram on 12 August 2009 to produce documents in respect of the mother, father and the child, which documents were produced to the Court on 7 September 2009. It is this subpoenaed material which the current application is concerned with.

17On 17 September 2009 orders were made, inter alia, that the parties have permission to inspect, but not copy, the subpoenaed documents received from Dr Abram.

18On 21 October 2011 the ICL filed a Notice of Ceasing to Act.

19As noted previously, the Applicants’ filed their application on 6 August 2012.

20On 4 September 2012 Dr Abram and the former ICL were granted leave to appear in respect of this application and the parties were ordered to file and serve written submissions.

21Dr Abram filed a Form 2A response on 18 September 2012. On 29 October 2012 Dr Abram was granted leave to intervene in the proceedings.

22Each of the parties, other than the mother, filed written submissions in relation to the application as did the former ICL.

Key issues

23The crux of the dispute is concerned with the implied undertaking not to use subpoenaed material otherwise than for the purposes of the proceedings, and whether the particular circumstances of this case mean that the Court should grant a release from such undertaking in favour of the Applicants.

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24In other words, should the Applicants be released from their implied undertaking so as to enable them to produce their report, which they submit is in the public interest to do, and which report, they submit, they will not be able to complete without the subject material. Or otherwise, should the undertaking remain by reason of the need to protect the role of the child therapist in consideration of the benefits associated with subpoenaing their, file as well as the public interest in not condoning parties misusing confidential information.

The relevant law

25Section 244(4) of the Family Court Act 1997 (WA) (“the Act”) provides as follows:

(4)Rules made under this Act may, for the purposes of this Act, adopt or apply any rule for the time being in force under the Family Law Act.

26Pursuant to rule 13 of the Family Court Rules 1998 (WA), rules 15.27 and 1.12 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) are applicable.

27Rule 15.27 provides as follows:

(1)This Division applies to a subpoena for production.

(2)A person who inspects or copies a document under these Rules or an order must:

(a)use the document for the purpose of the case only; and

(b)not disclose the contents of the document or give a copy of it to any other person without the court’s permission.

28Rule 1.12 provides as follows:

(1)These Rules apply unless the court, on application or its own initiative, orders otherwise.

(2)The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.

(3)In considering whether to make an order under this rule, the court may consider:

(a)the main purpose of these Rules (see rule 10.4);

(b)the administration of justice; (my emphasis)

(c)whether the application has been promptly made;

(d)whether non-compliance was intentional; and

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(e)the effect that granting relief would have on each party and parties to other cases in the court.

29Section 243(1) of the Act provides:

(1)A person must not publish in a newspaper or periodical publication or by radio broadcast, television or other electronic means, or otherwise disseminate to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies —

(a)a party to the proceedings;

(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)a witness in the proceedings.

Penalty: Except where subsection (6) applies —

(a)in the case of a body corporate, $11 000;

(b)in any other case, $5 500 and imprisonment for 12 months.

The legal principles

30In Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 the Federal Court of Australia (Wilcox J) confirmed that the common law principle enunciated by the House of Lords in Home Office v Harman [1983] 1 AC 280 applied in Australia, and stated on page 221:

But all their Lordships agreed that there was a principle of law that an order for discovery is subject to an implied undertaking by the solicitor obtaining that order not to use or allow the documents, or copies of them, to be used for any collateral or ulterior purpose; that is, otherwise than for the purposes of the litigation in which discovery is given.

31It is this common law principle which is codified in rule 15.27 of the Family Law Rules.

32In Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41 the Court (Talbot J) held:

There was an implied undertaking on discovery that the documents disclosed would not be used for any collateral or ulterior purpose. Furthermore that undertaking was binding on anyone into whose hands the documents might come if he knew that the documents had been obtained by way of discovery. It was a matter of public interest that documents

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disclosed on discovery should not be permitted to be put to improper use and that the court should give its protection to prevent such use.

33In Hearne and Another v Street and Others (2008) 248 ALR 609 the High Court considered in detail the common law principle of implied undertakings and stated at paragraphs 106 and 107:

The fact that the role of the word “undertaking” is merely to indicate the way in which an “obligation” which is “imposed by law” as a “condition” of discovery binds the disclosee highlights the substantive nature of the obligation. There is nothing voluntary about the “undertaking”…

The expression “implied undertaking” is thus merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering “a very serious invasion of the privacy and confidentiality of [their] affairs”, any burden which is “harsher or more oppressive … than is strictly required for the purpose of securing that justice is done.” To that statement by Lord Keith of Kinkel of the purpose of the “implied undertaking” may be added others. In Riddick Lord Denning MR said:

Compulsion [to disclose on discovery] is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party — or anyone else — to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

In Harman Lord Diplock said:

The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides … through its rules about abuse of process and contempt of court.

In Watkins v A J Wright (Electrical) Ltd Blackburne J said:

In my judgment, a serious inroad into [the safeguards referred to by Lord Diplock] and, therefore, into the utility of the discovery process in the just disposal of civil litigation would occur if it were open to a litigant (or his solicitor) to enjoy the fruits of discovery provided by the other side, but avoid the risk of committal for contempt for acting in breach of the countervailing implied obligation on the ground that he was unaware of the existence of the undertaking. I take the view that it does not lie in the mouth of a person to plead ignorance of the legal consequences of the discovery process.

To speak in terms of “undertaking” serves:

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… a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court.

Staughton LJ said: “[A]lthough described as an implied undertaking it is a rule which neither party can unilaterally disclaim.” The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear:

Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party.

34Wilcox J in Springfield observed at page 225:

For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant.

35In Thornton & WorkCover Corporation of South Australia [2009] FamCA 449, Dawe J, in a fulsome and detailed consideration of the relevant authorities, cited the following passage from Johnson J in the NSW Supreme Court decision in Prime Finance Pty Ltd and Ors v Randall and Ors [2009] NSWSC 361:

18… Deciding whether special circumstances have been made out involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking as to using the documents for the purpose of the proceedings in which they were produced, and any other relevant factors, and asks whether the needs of justice are better served by relieving from or maintaining the undertaking: Springfield Nominees Pty Limited v Bridge Lands Securities Limited (1992) 38 FCR 217 at 225; Wellness Pty Limited v Hamilton-Bond [2002] NSWSC 1259 at [8]; Premier Travel Pty Limited v Satellite Centres of Australia Pty Limited [2004] NSWSC 864 at [2].”

36In Bergman & Bergman (No. 4) [2008] FamCA 525, Young J cited a passage from Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 at paragraph 75:

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In Bailey’s Case Lee J referred to the exercise of discretion as involving:

“a process of identifying and balancing competing factors in order to determine if the public interest is best served by discharging, relaxing or modifying the undertaking. In effect, the Court is called upon to exercise a value judgment in order to determine where the public interest lies, Millett J., [sic] in a passage which I would respectfully adopt, stated this proposition in Bank of Crete at 925 as follows:

"[A]lthough the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure." See also Distillers at 622-625 per Talbot J. and Rank Film at 442, 447.

In other words, the general rule should not be so rigidly applied as to defeat or prejudice the interests which it was designed to protect.” (Ibid, 487)

37Young J went on to say at paragraphs 76 to 77:

The applicant in these proceedings, being the case guardian for the husband, has the onus of convincing the court that there are good reasons for the exercise of its discretion including that the balance of public interest is in favour of granting disclosure. [Crest Homes plc v Marks and others [1987] 2 All ER 1074 at 1082 per Lord Oliver of Aylmerton.]

In Springfield Nominees (supra) Wilcox J sets out a non-exhaustive list of factors to be referred to in considering if the discretion should be exercised:

“It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstance in which the document came into the hands of the applicant for leave, and perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding” (Ibid, 693)

Parties’ submissions

38The Applicants state at paragraphs 32 to 34 of their written submissions:

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The Notification is currently in the investigation stage of the process. Without being released from the implied undertaking, AHPRA will not be able to progress the investigation to production of a report, nor will the Board be able to make a final decision on the merits, whatever its decision may be.

In our submission, The Applicants have a statutory obligation, based on the public interest, to progress this matter to a determination and thereby have a clear underlying purpose for making this application.

It is important to note that but for the fact that the clinical notes were produced to this Court under subpoena, and information was derived therefrom, the Applicants would have had the legal right and power to otherwise obtain the documents.

39I would observe that the last argument is somewhat circuitous, in that and but for the production under subpoena it would appear that the complaint would not have been made.

40Dr Abram stated at paragraph 13 of his written submissions:

13.The Respondent submits that due to the following factors, it would clearly not be in the interest of justice to permit use of the Respondent’s clinical notes for a collateral purpose:

13.1The Respondent’s notes relate to the treatment of a child and is clearly of a sensitive nature;

13.2The Respondent’s notes did not relate whatsoever to any treatment of Mr Vicary by the Respondent;

13.3The Respondent’s notes were not created for the purpose of litigation and were made during the treatment sessions of a child and were not made for publication or display to a third party; and

13.4The use of the Respondent’s notes would breach patient-client confidentiality.

41The ICL states at paragraphs 22 and 23 of her written submissions:

The position of the [ICL] is to oppose the application of the applicants on the basis that:

·The role of the therapist giving treatment to a child needs to be safe-guarded and the fact that their file can be subpoenaed and made available to an Independent Children’s Lawyer may be crucial in some cases.

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·Disgruntled litigants should not be able to use confidential information obtained from a therapist’s file pursuant to a subpoena to lodge complaints to a professional body.

·The orders made for inspection was an order under the Act affecting the children as set out in Section 5 of the Family Court Act and greater protection by virtue of the provisions of the Act and the process of disclosure needs to be afforded to therapists.

·The breach of the confidentiality by the first respondent outweighs the submission made by the applicants that it is in the public interest for the applicants to be dealing with complaints.

There is no evidence before the Family Court that the therapists acted improperly and the Court is not appraised of the concerns of the applicants which makes it difficult to determine whether there are circumstances which takes the matter out of the ordinary course to justify the use of the documents for the collateral purpose.

42The father’s written submissions make reference to various Court documents and statements contained therein. In summation, he alleges that Dr Abram had discussions with the mother which contradict what was told to him by the doctor. His complaint is centred around these discussions and that the focus of them extended beyond the “treatment programme” of their son Keith and included such other topics as the father’s mental health and the impact of the father’s behaviour on the child, matters, which I observe, may, in the final determination of any child related proceeding and in any therapeutic context, be highly relevant.

Conclusion

43The public interests that must be weighed against one another in the present case are, on the one hand, the need for the role of child therapists to remain child-focused in circumstances where their file notes may be subpoenaed for the purposes of parenting proceedings, and on the other hand, the need for psychologists or other health professionals involved in the care of children to be subject of disciplinary scrutiny to ensure they maintain high professional standards of practice.

44Pursuant to orders made on 17 September 2009 the parties were granted leave to inspect, but not copy (my emphasis), the subpoenaed material from Dr Abram. The father proceeded to hand copy eight pages of the material and use it for the purposes of making a complaint to AHPRA regarding Dr Abram’s treatment of his son. He did not seek the Court’s permission to do so, although claims he was so authorised by a subpoena officer of the Court. He has clearly failed to comply with rule 15.27 of the Family Law Rules and has breached the implied undertaking not to use the subpoenaed material for a collateral purpose.

45It is also clear from authorities that the implied undertaking extends to AHPRA (see Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd (supra)). This is

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irrespective of whether AHPRA has the legal right or power to obtain the documents though other means.

46The question that must now be asked is whether there are special circumstances in this particular case, that result in the interests of the public being better served by discharging, relaxing or modifying the undertaking or, on the other hand, by upholding the undertaking against the Applicants.

47There is no evidence before me as to the exact nature of the complaint made to AHPRA other than what can be elicited from the father’s submissions referred to above. If the Court is to exercise its discretion and release the Applicants from the undertaking, then they have “the onus of convincing the court that there are good reasons” for doing so and “that the balance of public interest is in favour of granting disclosure” (see Bailey’s case cited in Bergman & Bergman (No. 4) referred to above). The limited evidence before the Court regarding the complaint is not sufficient to satisfy the Court that the Applicants should be released from their implied undertaking. This is particularly so in circumstances where condoning the misuse of a child therapist’s notes subpoenaed for child related proceedings could have negative consequences for the therapeutic services provided to children in the future and potentially open the floodgates for the misuse of documents produced under subpoena by disgruntled litigants.

48Allowing the Applicants to be released from the undertaking would effectively condone or even reward the misuse of the subpoenaed material by the father. With blatant disregard for Court orders the father copied the subpoenaed material and proceeded to use it for a purpose not related to the present Court proceedings and in pursuit of his own agenda. The public interest is clearly served by discouraging such behaviour and in some cases, imposing sanctions (see Hearne).

49Perhaps most importantly, the role of the child therapist must be safeguarded especially where the subpoenaing of their file can provide great assistance to the Court in its determination of which parenting orders are in a child’s best interests. In the absence of special circumstances to warrant such disclosure, the public interest must best be served by ensuring the effectiveness of that process, and ultimately, a child’s best interests. The investigation of an indistinct complaint, in my opinion, does not satisfy such a test.

50I find that the interests of justice are best served by refusing to release the Applicants from their implied undertaking, and I accordingly dismiss their application.

51Although both the ICL and the Applicants had made submissions as to the application of s 243(1) of the Act and the applicability of the exceptions prescribed in s 243(8) I do not consider it necessary to determine the same in the context of this application.

Proposed orders

1.The Form 2 application filed by the Applicants on 6 August 2012 be and is hereby dismissed.

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2.The Form 2A response filed by the Intervener on 18 September 2012 otherwise stand dismissed.

I certify that the preceding [51] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate