Psychology Board of Australia v Germain

[2014] QCAT 202

CITATION: Psychology Board of Australia v Germain
 [2014] QCAT 202

PARTIES:	Psychology Board of Australia (Applicant/Appellant)
v
Dr Elsa Germain (Respondent)

APPLICATION NUMBER: OCR063-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 15 April 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant made an application to produce documents – where the application is made pursuant to s 63(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which allows the Tribunal to order third party disclosure – where the applicant seeks any ‘relevant documents’ to the proceeding – where the documents are not specified – where the third party cannot know what is relevant – whether the Tribunal can order a third party to disclose documents

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63(1)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 20 March 2014 the Psychology Board of Australia filed an application for miscellaneous matters in which it seeks an order under s 63(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) requiring the Department of Veterans Affairs to produce “Any documents in the power, possession or control of DVA relevant to the allegations contained in Part C referral filed 3 August 2012.”

2. The reasons stated for seeking the order are that:

   1.The investigation conducted by the DVA concerned, inter alia, disclosures made by the respondent:

   (a)To GR about the respondent’s treatment of CS (see paragraph 2(a) part C);

   (b)To CS about the respondent’s treatment of GR (see paragraph 2(a) part C).

   2.The allegations contained in paragraphs 2(c) and 2(d) of the part C relate to alleged disclosures made by the respondent to David Morton and Bronwyn Drescher (both employees of the DVA) during the investigation.

   3.The DVA retains a copy of documents created and obtained during its investigation.  The Board submits these documents are likely to be relevant to the issues in these proceedings.

3. The reference in the order sought to the referral having been filed on 3 August 2012 appears to be a typographical mistake.  The referral was filed on 3 August 2013. 

4. The application should be refused. 

5. The Tribunal should not ordinarily make an order pursuant to s 63(1) of the QCAT Act which, in terms, requires a third party to whom it is directed to determine for itself the relevance of documents which it may have to allegations contained in a referral filed in the Tribunal.

6. Section 63(1) authorises the Tribunal to make an order requiring a third party who has, or is likely to have, documents or things relevant to the proceeding to produce those documents or things to the Tribunal or a party to the proceeding. In my view, that requires the Tribunal to be satisfied, on the material before it on the application, that there are documents or things which the third party has, or is likely to have, which are relevant to the proceeding. This does not necessarily require the precise identification of particular documents. It may be that documents of a class or category are all that can be identified as being likely to be in the third party’s possession. But an order should not leave it to the third party to determine for itself what documents, if any, it has relevant to the issues. To require a third party to do so would convert the power under s 63(1) from one requiring documents to be produced by a third party, to one requiring third party disclosure.

7. Furthermore, in its terms, the order is meaningless. The person subject to the order would not know the allegations against which it was to assess the relevance of documents it might possess. It may have been the intention of the Board to provide Part C of the referral to the Department of Veteran Affairs at the time of serving the order; but that is not what the order says. A person to whom an order is directed should be able to understand from the terms of the order itself what it is that they are required to do.

8. In its reasons for seeking the order, the Board identifies certain documents or, at least, a category of documents: copies of documents created and obtained during the Department of Veteran Affairs investigation.

9. The Board also identifies particular allegations in part C of the referral in respect of which the DVA conducted its investigation: paragraphs 2(a), (c) and (d).  Each of those subparagraphs are particulars of paragraph 2 of Part C of the referral which alleges:

   The respondent disclosed confidential patient information to a third party when it was inappropriate to do so and in breach of A.5.1 of the Code of Ethics published by the Australian Psychological Society Ltd because the disclosure was made without first obtaining the consent of the patient and when there was no legal obligation or excuse to make a disclosure.

10. There are, however, a number of other allegations contained in part C of the referral in respect about which nothing is said in the reasons for seeking the order. 

11. If the order was to be made in the terms in which it is sought, it would require the Department of Veterans Affairs to consider each of those other allegations to assess whether it held any documents which, on its view, it considered relevant to those allegations.  It would be doing so in circumstances in which the application which led to the order being made did not assert such relevance. 

12. If the Board were to seek an order pursuant to s 63(1) requiring production of any documents created or obtained by the Department of Veterans Affairs during its investigations into:

    a)The disclosure by the respondent to GR to the effect that she had previously treated CS for a personality disorder;

    b)    The respondent’s disclosure to CS to the effect that she had previously treated GR;

    c)    The respondent disclosing to David Morton to the effect that she had previously treated CS;

    d)    The respondent’s disclosure to David Morton and Bronwyn Drescher to the effect that she had previously treated GR;

    then an order in those terms may be made.

13. It is not, however, for the Tribunal hearing an application on the papers to presume to amend the relief sought.

14. I dismiss the application.