Rickard (a pseudonym) v Wood and Gopal
[2015] VCC 274
•20 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-01371
| LUCINDA RICKARD (A PSEUDONYM) | Plaintiff |
| v | |
| PHILIP DAVID WOOD and | First Defendant |
| MANU MAIMBILLY GOPAL | Second Defendant |
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JUDGE: | Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2015 | |
DATE OF RULING: | 20 March 2015 | |
CASE MAY BE CITED AS: | Rickard (a pseudonym) v Wood & Gopal | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 274 | |
REASONS FOR RULING
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Subject: CIVIL
Catchwords: Subpoena - objections hearing - public interest immunity - class based, informer’s immunity – content based immunity -
Legislation Cited: Evidence Act 2008 (Vic), Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), Privacy Act 1988 (Cth)
Cases Cited:Ahmet v Chief Commissioner of Police [2014] VSCA 265, Deputy Commissioner of Taxation v Law Institute of Victoria Ltd [2010] VSCA 73, Medical Board of South Australia v Fisher [2000] SASR 92, Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, Victorian WorkCover Authority v Kinloch [2012] VCC 1466, Winky Pop Pty Ltd & Anor v Mobil Refinery Australia Pty Ltd & Anor [2013] VSC 315,
Ruling: Objection upheld to all, but one, document
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Hutchinson | Shine Lawyers |
| For the First Defendant: | Mr C. Spain (Solicitor) | TressCox lawyers |
| For the Second Defendant: | Ms S. Faraone (Solicitor) | John W. Ball & Sons |
| For the Objectors: | Ms E. Latif | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
1 At all relevant times:
a) the defendants were registered general medical practitioners pursuant to the Health Practitioner Regulations Law as adopted in Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (the Law);
b) the defendants practised as general practitioners at the Sunbury Medical Centre (the medical centre);
c) the second defendant was registered as a supervised medical practitioner pursuant to s 66 of the Law;
d) the first defendant was the registered medical practitioner responsible for supervising the second defendant in the performance of his duties as a supervised medical practitioner pursuant to s 66 of the Law.
2 It is alleged that the first defendant employed the second defendant and was vicariously liable for the acts and omissions of the second defendant insofar as those acts and omissions were performed in the course of, or in connection with, his employment and/or his duties as a supervised medical practitioner.
3 On or about 15 January 2012 the plaintiff attended the medical centre for treatment. It is alleged that during a consultation at the medical centre the second defendant performed an internal digital examination without justification or consent and thereby committed a battery against and sexually assaulted the plaintiff in the course of, or in connection with his employment, with the first defendant and his duties as a supervised medical practitioner.
4 The proceeding is brought against the first defendant based on vicarious liability, breach of a contract in the provision of medical services and/or in the alternative breach of a duty of care.
The subpoenas
5 The plaintiff has served multiple subpoenas. Of these, two subpoenas, dated 31 December 2014, were served on the Australian Health Practitioners Regulation Agency (the AHPRA) and on the Medical Practitioners Board of Australia (the MPB) seeking production of documents listed in the Schedule as follows:
“Hereinafter:
i.“the incident” refers to an alleged sexual assault of the plaintiff, Lucinda Rickard (pseudonym used), by the second defendant, Manu Maimbilly Gopal, at Sunbury Medical Centre on or about 15 January 2012;
ii.“the other incidents” refer to sexual assaults committed by the second defendant upon two patients at Sunbury Medical Centre on or about 23 February 2012 and 25 February 2012;
1.All documents pertaining to the registration of the second defendant, Manu Maimbilly Gopal, as a health practitioner;
2.All documents pertaining to any application by, or for the benefit of, the second defendant for registration as a health practitioner;
3.All documents pertaining to the incident, any complaint made to the Medical Board of Australia (the AHPRA) with respect to the incident and any investigation conducted by the Medical Board of Australia (the AHPRA) with respect to the incident;
4.All documents pertaining to the other incidents, any complaint made to the Medical Board of Australia (the AHPRA) with respect to the other incidents and any investigation conducted by the Medical Board of Australia (the AHPRA) with respect to the other incidents;
5.All documents pertaining to the supervision of the second defendant by the first defendant, Dr Philip David Wood, whilst he worked as a medical practitioner or supervised medical practitioner at Sunbury Medical Centre during the period from 1 November 2011 to 29 February 2012;
6.All documents pertaining to any complaints, notifications or reports received by the Medical Board of Australia (the AHPRA) in relation to alleged inappropriate conduct or sexual assaults by the second defendant whilst working as a medical practitioner or supervised medical practitioner;
7.All documents relating to any background checks, probity checks or due diligence performed by, or provided to, the Medical Board of Australia (the AHPRA) with respect to the second defendant during the period from 1 January 2001 to 29 February 2012;
8.All documents pertaining to the second defendant’s education, training, qualifications and experience as a medical practitioner;
9.All documents relating to any complaints, reports or notifications of inappropriate conduct or alleged sexual assault by the second defendant in his role as a medical practitioner during the period from 1 January 2001 to 31 October 2011.
6 By way of background, I was told by the plaintiff’s counsel that the second defendant had been convicted of sexual assault offences against two patients who attended the medical centre for treatment on 23 and 25 February 2012. It was, however, counsel’s belief that the second defendant had been acquitted in respect to the sexual assault allegation made by the plaintiff.
7 A subpoena served by the plaintiff on Victoria Police also dated 31 December 2014 relevantly sought production of documents relating to the incident and the other incidents. The plaintiff’s counsel was unable to tell the Court whether documents to the production of which Victoria Police had not objected, had been inspected.
The objection
8 The AHPRA and the MPB (collectively ‘the objectors’) have produced a large number of documents but objected to the production of 11 documents, relying on legal professional privilege and public interest immunity, the former under section 118 of the Evidence Act 2008 (Vic) (the Act) and the latter under ss 129 and 130 of the Act.
9 These provisions relevantly provide:
“118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
a. a confidential communication made between the client and a lawyer; or
b. a confidential communication made between 2 or more lawyers acting for the client; or
c. the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”
“129 Exclusion of evidence of reasons for judicial etc. decisions
(1)Evidence of the reasons for a decision made by a person who is—
(a)a judge in an Australian or overseas proceeding; or
(b)an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration—
or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person.
(2)Such evidence must not be given by tendering as evidence a document prepared by such a person.
(3)This section does not prevent the admission or use, in a proceeding, of published reasons for a decision.
(4)In a proceeding, evidence of the reasons for a decision made by a member of a jury in another Australian or overseas proceeding, or of the deliberations of a member of a jury in relation to such a decision, must not be given by any of the members of that jury.
(5)This section does not apply in a proceeding that is—
(a)a prosecution for one or more of the following offences—
(i) attempt to pervert the course of justice;
(ii) perverting the course of justice;
(iii) subornation of perjury;
(iv) embracery;
(v) bribery of public official;
(vi) misconduct in public office;
(vii) an offence against section 52A of the Summary Offences Act 1966 (Offence to harass witness etc.);
(viii) an offence against section 66 (Offences by officials) or 78 (Confidentiality of jury's deliberations) of the Juries Act 2000;
(ix) an offence connected with an offence mentioned in subparagraphs (i) to (viii), including an offence of conspiring to commit such an offence; or
(b)in respect of a contempt of a court; or
(c)by way of appeal from, or judicial review of, a judgment, decree, order or sentence of a court; or
(d)by way of review of an arbitral award; or
(e)a civil proceeding in respect of an act of a judicial officer or arbitrator that was, and that was known at the time by the judicial officer or arbitrator to be, outside the scope of the matters in relation to which the judicial officer or arbitrator had authority to act.
130 Exclusion of evidence of matters of state
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6)A reference in this section to a State includes a reference to a Territory.”
10 The objectors relied on the affidavit sworn on 12 March 2015 by Elisa Joanne Watson, a Senior Legal Adviser employed by the AHPRA. As manager of AHPRA’s operational legal service, Ms Watson said her responsibilities include supervision of all legal work undertaken for and on behalf of the MPB.
11 Ms Watson’s affidavit sets out the statutory scheme which provides for national registration, accreditation and regulation of health practitioners. The Law provides for a process by which health, performance and/or conduct concerns about registered health practitioners can be investigated and managed with a view to protecting the public by ensuring health services are provided safely and are of an appropriate quality.
12 The objectors are statutory bodies with interrelated functions. Broadly speaking, the AHPRA provides administrative assistance and support to the MPB which is tasked with implementing and carrying out the processes referred to above. As part of its obligations, the MPB maintains files in relation to all medical practitioners recording a range of information including records of any notification made about a practitioner, together with any investigation and subsequent health, performance or conduct action taken as a result of the notification.
13 The Privacy Act 1988 (Cth) applies and a statutory duty of confidentiality attaches to information obtained by the objectors in the course of, or because of the exercise of their functions under the Law.
14 I was told the objectors act to protect the confidentiality of information and documents of a private or sensitive nature obtained in the course of performing their functions, among other things, by denying public access to notification material or any evidence obtained during an investigation or the MPB’s subsequent deliberations about a notification and by keeping personal patient information private.
15 In her affidavit Ms Watson explained the significance of the approach taken to confidentiality and privacy of information in the following words:
“13. Protecting the confidentiality of information obtained during an investigation into the professional conduct of a registered health practitioner is vitally important. It is central to the Board’s ability to carry out its statutory function of ensuring that the practitioners the Board registers are safe and competent to practice medicine, either as a generalist or specialist. This serves to protect the public and maintain professional standards in the medical profession.
14. If the confidentiality of information received by AHPRA or the Board was not protected, it would undermine the Board’s ability to conduct investigations and obtain cooperation from witnesses and registered health practitioners – all relevant parties would be less likely to provide the Board with detailed and comprehensive information if they feared it could be subpoenaed in subsequent civil action. If the Board’s access to free and frank disclosure of relevant information were effectively fettered in this way, its ability to discharge its functions and to perform its role of protecting the public would be compromised.
15. It is also important to protect the confidentiality of internal documents generated by the Board and by AHPRA employees. Those documents provide analysis, opinion, advice and/or recommendations by AHPRA to assist the Board in its various statutory decision-making functions. Therefore, the information contained in these documents expresses opinions or is legal advice. Further, because the Board is an independent decision-maker, the information contained in these documents may not always not [sic] reflect the Board’s ultimate decision or reasoning in a matter, which is recorded in formal minutes. It is very important to the proper functioning of the Board that these internal processes remain confidential and robust.
16 The documents to which objection to production was taken were described in correspondence sent to the Court, dated 11 and 12 February 2015, and in paragraph 20 of the affidavit in the following terms:
No
Description
1.
Notification (Complaint), dated 5.3.2012
2.
File note completed by Helen Kearney, AHPRA Legal Officer, recording deliberations of the Board, dated 15.3.2012
3.
Preliminary Assessment and Management Report, Notification No 00225484, dated 22.3.2012
4.
Investigation Report - notification numbers 00224963, 00225484, undated
5.
Minute of Medical Board of Australia, dated 26.6.2014
6.
Agenda Paper, dated 24.7.2014
7.
Letter from AHPRA to notifier, dated 9.5.2013
8.
Notifications outcomes from the VBMBA State Board meeting 24 July 2014, undated
9.
Minutes of Notification Assessment Committee Meeting 7 March 2012, undated
10.
Preliminary Assessment and Management Report, Notification No 00224963, dated 7.3.2012
11.
File note of notification made by telephone, dated 27.2.2012
17 The objection to the production of documents 1 and 11 was class-based because the information contained in these documents was said to be protected by a recognised category of public interest immunity, informer immunity. The objection to production of documents 2 to 10 was content-based, that is to say, the character of the information contained in these documents was said to attract public interest immunity.
18 The objectors conceded the documents were potentially relevant to the issues identified in this proceeding.
19 As to the claim of public interest immunity, it was common ground that, in determining this claim, the Court was required to first determine whether public interest immunity was engaged and, if it was, to undertake a three stage process.
20 The authorities and principles applicable to these claims were discussed by His Honour Digby J in Winky Pop Pty Ltd v Mobil Refinery Australia Pty Ltd who described the three stage process as follows:[1]
[1] [2013] VSC 315, [16]-[23]
a) To determine whether there is a public interest in the non-disclosure of the information in question;
b) To determine whether there is a public interest in the disclosure of the information in question; and then
c) To balance the public interest in disclosure against the public interest in non-disclosure, in order to decide whether or not the information should be disclosed.
21 In short, in this application I was required to determine whether established public interest immunity in non-disclosure of each of the 11 documents was outweighed by public interest in any of these documents being disclosed. The competing interest to be balanced was as between the public interest in confidentiality of information either relating to notification of complaints, investigation of complaints or in the preparation of internal documents for the MPB in the performance of its functions and the public interest in relevant material being disclosed in the administration of justice.
22 The plaintiff conceded that, in accordance with s 130 of the Act, and where claimed s 129, public interest immunity was engaged in respect to the documents due to the functions performed by the objectors in the maintenance of professional standards, in the investigation of unprofessional conduct and in disciplinary matters.[2] The only issue was, the plaintiff submitted, whether or not after undertaking the balancing exercise, the information in each document should be disclosed. In this regard, I was asked to bear in mind ss.130(5) and the possibility that redaction and/or anonymisation of some or all of the documents could help tip the balance in favour of the public interest in the administration of justice and disclosure of relevant information to the plaintiff.
[2] See for example Deputy Commissioner of Taxation v Law Institute of Victoria Ltd [2010] VSCA 73 [40] and Medical Board of Australiav Fisher [2000] SASC 92 [47]
23 I was given a folder containing the documents. Both the plaintiff and the objectors invited the Court to inspect the documents, which I have done preparatory to my discussion of the submissions made in support of non-disclosure.
24 The plaintiff criticised the objectors’ affidavit as having failed to articulate with sufficient rigour and precision the basis for the contention that the disclosure of the information contained in each of the subpoenaed documents would harm some aspect of the public interest. The affidavit discusses each document specifically, albeit mostly in general terms. However, allowing for the matters raised in the affidavit and the opportunity to read and analyse each document, I concluded the circumstances of this case were distinguishable from the criticism levelled at the more general evidence on which the Chief Commissioner of Police had relied in AhmetvChief Commissioner of Police,[3] without the benefit of inspection by the Court.
[3] [2014] VSCA 265 [22] and [27]
25 It is convenient to deal with the objections raised in respect of each of the documents in groups of documents.
Documents 1 and 11 – informer immunity. Objection under s130 of the Act
26 Informer immunity is a recognised category of public interest immunity, although it does not provide absolute immunity. As his Honour, Maxwell P explained in Royal Women’s HospitalvMedical Practitioners Board of Victoria,[4] this category of immunity recognises that the very function which an informer performs means that information about the informer’s identity and whereabouts will almost always need to be immune from disclosure, in order both to protect the individual and to encourage the provision of such information in the future.
[4] (2006) 15 VR 22 [50]
27 The objectors cited Winky as authority for the proposition that, where, as in this case, the documents attracted immunity because they belong to a particular class, the scales are tilted in favour of non-disclosure and, before these documents are released, the scales must tip decisively in favour of disclosure.[5]
[5] op. cit. [20]
28 Inspection of documents 1 and 11 has confirmed the description of these documents as written and oral notifications made by persons pursuant to the Law. The plaintiff submitted these documents likely relate to one or other of the complaints of sexual misconduct made against the second defendant.
29 For the reasons contained in paragraphs 13 and 14 of the affidavit, in paragraph 22 of the affidavit Ms Watson expressed her belief that production of these documents would diminish the MPB’s capacity to obtain information from members of the public and would prejudice the MPB’s ability to discharge its statutory function in the public interest.
30 Paragraphs 13 and 14 of the affidavit generally emphasise the importance of protecting the confidentiality of information obtained during investigation of unprofessional conduct and the risk that disclosure could undermine the MPB’s ability to undertake investigations if it was believed by potential notifiers that information could be subpoenaed in civil actions.
31 At hearing the objectors submitted that the hundreds of documents already produced, along with the opportunity to access the Register, provided evidence of the second defendant’s registration and the conditions placed on this, some of which was probative of the issue of supervision by the first defendant.
32 However, whilst acknowledging there probably was a public interest in releasing these documents for use in the civil action, the objectors submitted that, at this stage, it was by no means clear whether and the extent to which production of either of these documents was probative of any fact in issue in the plaintiff’s proceeding. Indeed, the objectors pointed to the likelihood that non-hearsay evidence of complaint relating to either the incident or the other incidents was likely available to the plaintiff from sources other than the MPB.
33 For instance, it was likely that documents produced by Victoria Police without objection provide the best evidence of information of the complaint, investigation and prosecution of the second defendant for criminal offences arising from the incident or the other incidents. Moreover, subject to suppression of the identity of the victims of the sexual assaults, another source of information regarding the complaint, investigation and outcome of any prosecution arising from the incident and/or the other incidents may also be available to the plaintiff through the public trial and sentencing process. None of this, it was said, would necessitate the disclosure of documents 1 or 11 and the identity of the person or persons notifying the complaint to the MPB.
34 In short, it was submitted that the public interest in avoiding sources of information, about medical practitioners unprofessional conduct, drying up and hindering the MPB in promoting safety and ensuring the integrity of professional standards, should outweigh any public interest in this material being available in this proceeding. The maintenance of immunity would, counsel submitted, also promote efficient and high quality decision-making.
35 In response the plaintiff’s counsel submitted these and, for that matter the other documents for which production and inspection was sought, could be probative of matters not strictly confined to the criminal prosecution of any assault allegation, such as the question of the control and supervision of the second defendant by the first defendant.
36 A related matter that should also be borne in mind is that the production of the document or documents is required for evidence, either in evidence-in-chief or by cross-examination. The document or documents may give rise to a line of cross-examination without requiring any argument about admissibility or hearsay.
37 Having inspected both documents, I was satisfied that redaction and/or anonymisation would not suffice to keep confidential the source of notification on each occasion and, in the case of document 1, the identity of the notifier.
38 After balancing the various factors raised and allowing for the matters to which ss.130(5) refers, I concluded that the balance favoured non-disclosure of document 1 and, with suitable redaction and/or anonymisation, disclosure of document 11. The latter is a lengthy file note of a telephone notification by a member of Victoria Police in the investigation of complaints of sexual misconduct by the second defendant lodged with police on 25 February 2012.
39 I was not persuaded by the affidavit or the submissions made, that production and inspection of document 11 and the public interest in this information being available for use in this civil proceeding was outweighed by the public interest in keeping confidential the identity or whereabouts of the notifier. In doing so, I proceeded on the basis that the oral notification was likely made in the course of the discharge of the member’s duties as a police officer.
40 Based on the material before me and the submissions made, I could see no proper basis for concluding that, in this case, even with redaction and/or anonymisation, the potential identification of a notifier as a member of Victoria Police was of itself, inimicable to the public interest in ensuring that sources of information about unprofessional conduct do not dry up. There was, in my view, no real risk that disclosure and inspection will cause police officers in the future to alter their reporting habits to the MPB in respect to potential criminal misconduct of practitioners. Document 11 otherwise contains information relevant to the plaintiff’s causes of action.
41 Some of the concerns of the objectors may, however, be ameliorated by redaction and/or an anonymisation or even limiting the extent of publication of the document. I will hear from the objectors and the plaintiff on this issue before finalising my orders.
42 Whilst informer immunity would ordinarily tip the balance in favour of non-disclosure, I was persuaded that for the reasons summarised above, the balance was decisively tipped in favour of the public interest in the administration of justice vis-a-vis document 11.
Document 2 – objection under s 118 of the Act
43 In paragraph 22 of the affidavit, Ms Watson relevantly described document 2 and the basis of the objection raised under ss 118 and 130 of the Act as follows:
“22. Document 2 is a typed filenote of the Board’s deliberations in relation to a decision made by the Board recorded by Helen Kearney, an AHPRA Legal Officer and an Australian Legal Practitioner. Helen attended the Board’s deliberations in her capacity as an in-house lawyer, to provide advice to the Board. AHPRA and the Board claim client legal privilege over this document and object to its production under sections 118 and 130 of the Evidence Act”
44 In her submissions, the objectors’ counsel reminded the Court of the duty of confidentiality arising under s216 of the Law. This provision requires a person who is, or has been, exercising functions under the Law to maintain the confidentiality of another persons’ information of which the first person has knowledge by reason of having exercised their functions under the Law. Section 216 imposes sanctions for breach of confidentiality. It says nothing about legal professional privilege.
45 As mentioned, it was submitted document 2 was a file note created by an Australian lawyer in her capacity as an in-house lawyer. The plaintiff pointed to the description of the document as a file note record of deliberations of the MPB, not a record of the giving of legal advice.
46 I have already set out the requirements of s 118 of the Act. With respect to the claim for legal professional privilege only, I concluded as follows.
47 I read document 2. Based on the affidavit, the submissions made and my reading of the document, I was not persuaded that the claim for legal professional privilege was established. The document may be described as a confidential document but I could not see how it could be said that it was made for the dominant purpose of Ms Kearney providing legal advice to the MPB.
48 This of course does not fully dispose of the related public interest immunity claim in respect to this document. However, it is convenient to deal with the further arguments relating to this document’s release along with my discussion of the documents for which content-based immunity is claimed under both ss 129 and 130.
Documents 2, 5, 6, 8 and 9 – contents-based under ss 129 and 130 of the Act
49 In this regard, it was appropriate to consider the contents of the documents and to evaluate each document as to its relevance and potential importance in relation to especially the plaintiff’s causes of action.
50 In paragraphs 24 and 25 of the affidavit, Ms Watson relevantly described documents 5, 6, 8 and 9 and the objections raised under ss 129 and 130 of the Act in the following terms:
“24. Documents 5, 8 and 9 are notes and minutes of the Board’s deliberations in relation to a decision or decisions made by the Board. For the reasons set out at paragraph 15 above, I believe that ordering production of these documents would prejudice the Board’s ability to discharge its statutory functions in the public interest and would reveal the internal deliberations of the Board. AHPRA and the Board object to production of these documents pursuant to sections 129 and 130 of the Evidence Act.
25. Document 6 is an Agenda Paper prepared by AHPRA officers in relation to a decision or decisions made by the Board. For the reasons set out at paragraph 15 above, I believe the production of this document would prejudice the Board’s ability to discharge its statutory functions in the public interest and would reveal the internal deliberations of the Board. AHPRA and the Board object to the production of this document pursuant to sections 129 and 130 of the Evidence Act.”
51 The plaintiff accepted that s 129 could apply to these documents as well as document 2. I was, however, invited to read these documents because the description of each document of itself did not clearly indicate the content of the document. For example, the description of document 6 as: “Agenda Paper”, could mean it was simply a list of agenda items.
52 Having read and evaluated each document, I consider that, notwithstanding the limitations in the descriptions of these, broadly speaking, documents 2, 5, 6, 8 and 9 either record the internal deliberations in relation to decision-making or record the decision-making of the MPB. Whilst each document may have some potential relevance to the plaintiff’s causes of action, I was not persuaded that the public interest in the administration of justice outweighed the public interest in maintaining the immunity afforded to documents recording internal deliberations and the decision-making process undertaken by a statutory body performing the functions of the MPB.
Documents 3, 4 and 10 – contents-based under s 130 of the Act
53 In paragraph 23 of the affidavit, Ms Watson relevantly described these documents and the objections raised under s 130 of the Act as follows:
“23. Documents 3, 4 and 10 are investigation reports prepared by AHPRA officers in relation to a decision or decisions made by the Board. For the reasons set out at paragraph 15 above, I believe the production of these documents would prejudice the Board’s ability to discharge its statutory functions in the public interest. AHPRA and the Board object to production of these documents pursuant to section 130 of the Evidence Act.”
54 These documents have some potential relevance to the plaintiff’s causes of action. However, having read and evaluated each of the investigative reports, I was satisfied that the production and inspection of these reports could, as submitted, prejudice the MPB’s ability to discharge its statutory functions in the public interest. Accordingly, having balanced the competing interests I was not persuaded that the public interest in the administration of justice outweighed the public interest in maintaining the immunity afforded to documents created to assist the MPB in its deliberations and decision-making.
Document 7 – contents-based under s 130 of the Act
55 Finally, in paragraph 26 of the affidavit, Ms Watson relevantly described this document and the objection raised under s 130 of the Act as follows:
“26. Document 7 is an item of correspondence sent by AHPRA to a person who made a notification under the National Law. I believe the production of this document would identify a person who made a notification to the Board. For the reasons set out [in] paragraph 13 and 14 above, I believe this would diminish the Board’s capacity to obtain information from members of the public and would prejudice the Board’s ability to discharge its statutory functions in the public interest. AHPRA and the Board object to produce this document pursuant to section 130 of the Evidence Act.”
56 Again, having read and evaluated this particular document I was persuaded that production and inspection of this document would lead to the identification of a person who made a notification to the Board. It seems to me that the reasons favouring non-disclosure of documents which identify an informer and/or his or her whereabouts are again apposite. Moreover, even were some of the information redacted and/or anonymized, I had some difficulty in ascertaining the relevance of this document to the plaintiff’s causes of action. In effect, the correspondence does little more than advise a notifier of the timing of the AHPRA’s investigation.
57 In the circumstances, I was not persuaded that the likely prejudice to the MPB’s ability to discharge its statutory functions was outweighed by any public interest in disclosure of this document for the purpose of this proceeding.
Orders
58 In summary, I have upheld the objection to all but document 11. I will hear from the parties as to the proper form of the orders to be made.
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