VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and HALL

[2019] WASAT 145

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: VETERINARY SURGEONS ACT 1960 (WA)

CITATION:   VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and HALL [2019] WASAT 145

MEMBER:   JUSTICE PRITCHARD, PRESIDENT

HEARD:   23 OCTOBER 2019

DELIVERED          :   23 OCTOBER 2019

PUBLISHED           :   9 JANUARY 2020

FILE NO/S:   VR 57 of 2019

BETWEEN:   VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA

Applicant

AND

MAXWELL STEPHEN HALL

Respondent

Catchwords:

Practice and procedure - Application for production of documents - Tribunal's power to order production of documents under s 34(5) of the State Administrative Tribunal Act 2004 (WA) - Whether the documents are relevant to issues in dispute or application for production of documents a 'mere fishing expedition'

Practice and procedure - Application for production of documents - Whether the documents contain 'protected matter' for the purposes of s 34(6) of the State Administrative Tribunal Act 2004 (WA) - Whether the documents contain 'exempt matter' under the Freedom of Information Act 1992 (WA) - Whether public interest in preventing disclosure of third parties' personal information outweighs public interest in the Tribunal resolving questions fairly and according to the substantial merits of the case

Legislation:

Freedom of Information Act 1992 (WA), Sch 1, cl 3(1), cl 3(6)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 9, s 34(5), s34(6), s 35, s 159(4)
Veterinary Surgeons Act 1960 (WA)

Result:

Application granted
Order for production of documents made

Category:    B

Representation:

Counsel:

Applicant	:	Mr GM Abbott
Respondent	:	Ms KAT Pedersen

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	Meridian Lawyers (Perth)

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

Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350

Neil and Legal Profession Complaints Committee [2011] WASAT 88

Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59

S v Department for Child Protection and Family Support [2017] WASC 305

Stanley v Layne Christensen Company [2004] WASCA 50

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

(These reasons have been taken from the transcript of the hearing and have been edited to make necessary corrections or annotations for the purpose of grammar or syntax.)

1. In these proceedings, the Veterinary Surgeons' Board of Western Australia (applicant) alleges that Mr Maxwell Stephen Hall (respondent) is guilty of unprofessional conduct as a veterinary surgeon within the meaning of the Veterinary Surgeons Act 1960 (WA), because:

   a)on five occasions (involving three different horses) he performed a procedure on a horse that had no therapeutic benefit to the horse, was not performed to provide a therapeutic benefit and abnormally desensitised the horse's tail;

   b)on three specified dates the respondent failed to make a clinical record in relation to the treatment of one of the horses;

   c)the respondent encouraged the owners of another of the horses to be untruthful about the respondent's treatment of that horse or to provide misleading information to the RSPCA and the applicant's investigators who were making inquiries; and 

   d)the respondent responded to questions from the applicant about his treatment of the horses in a manner that was untruthful or misleading.

2. The parties have filed statements of issues, facts and contentions and orders have been made for the filing of documents on which the parties will rely at the final hearing.  The Tribunal has decided that the evidence-in-chief of the witnesses in the proceedings should be given orally, rather than by witness statement.  That is because the parties agree that the present case will largely, if not entirely, be resolved on the basis of an assessment by the Tribunal of the credibility of the witnesses called for the applicant and those called for the respondent.

The application to produce documents

1. There is no dispute between the parties that the documents produced by the applicant, pursuant to previous orders of the Tribunal, do not include all of the documents in the possession of the applicant that relate to the allegations against the respondent. 

2. The respondent now makes an application for an order under s 34(5) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the applicant should produce to the respondent any documents which can, in summary, be described as 'any written records made by investigators, officers or staff of the applicant, which record communications with third parties in relation to the allegations now made by the applicant against the respondent' (Documents Sought). 

Issues in dispute

1. It is not disputed that some documents may be held by the applicant which meet the description of the Documents Sought.

2. The category of the Documents Sought is a far narrower category of documents than those originally sought on this application.  Consequently, a number of the arguments raised by the parties concerning the Tribunal's power to order general discovery and the appropriateness of the exercise of such a power no longer require consideration.

3. There remains, however, a residual dispute about the extent of the Tribunal's power to order production of the Documents Sought, having regard to the issues in dispute. Assuming that that power exists, the next issue is whether the Documents Sought contain information which prohibits their production. Under s 34(6) of the SAT Act, if the Tribunal considers that any document is, or contains, 'protected matter', the Tribunal cannot direct a party to produce it to another party.

4. The parties have agreed that the Tribunal can resolve the issues in dispute without inspecting the Documents Sought.  That is because there is no dispute that any documents falling within the category of Documents Sought will inevitably contain personal information in relation to third parties.  The nature of the Documents Sought means that the redaction of personal information would not be possible, because the balance of the document would necessarily permit the identity of any third party to be disclosed, even if that personal information has been redacted.  The parties also accept that in the circumstances of this case, it will be possible for the Tribunal, without examining individual documents, to make an assessment of the public interest considerations relevant to whether the Documents contain protected matter.  The parties have assisted the Tribunal by making submissions about relevant public interest factors.

The Tribunal's power to order a party to produce documents

1. The first of the issues requiring resolution is whether the Tribunal has power to order the production of the Documents Sought. Section 34(5) of the SAT Act gives the Tribunal power to give a direction requiring a party to produce a document or other material, or provide information, to the Tribunal or another party, despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents. The power in s 34(5) is subject to the restriction in s 34(6), to which I will return later in these reasons.

2. The power of the Tribunal to order the production of documents under s 34 cannot be viewed in isolation from its power to order the production of documents by third parties to parties to the proceedings under s 35. The interpretation of both of those provisions is of relevance in the present case.

3. In Nurses and Midwives Board of Western Australia and Watson[1] the then President, Justice Barker, discussed the power of the Tribunal under s 35 of the SAT Act. His Honour observed that:[2]

   [B]efore the Tribunal will make an order under s 35 of the SAT Act, it must be satisfied that the document is relevant to the proceedings. It is clear that the power to order production cannot be used as part of a 'fishing expedition' on the part of an applicant. Nor can it be utilised for a purpose collateral to the main object of the proceedings.

   [1] Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59.

   [2] Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59 at [10].

4. His Honour went on to observe:[3]

   [T]he primary question to be asked by the Tribunal is whether the party seeking the order for the production of a document has a 'legitimate forensic purpose' for seeking production[.]

   [3] Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59 at [11].

5. His Honour referred to leading authorities in the context of subpoenas issued to third parties to require the production of documents, namely Apache Northwest PtyLtd v Western Power Corporation[4] and StanleyvLayne Christensen Company.[5]  

   [4] Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350.

   [5] Stanley v Layne Christensen Company [2004] WASCA 50.

6. While the present case does not involve s 35, it seems to me that the underlying approach to s 35 is also relevant in respect of orders for production under s 34(5).

7. The Tribunal does not approach the question of production of documents on the basis of the common law principles of discovery which apply in the courts. It is bound by the SAT Act and provisions in relevant enabling Acts. In the application of s 34(5) of the SAT Act, the Tribunal must also bear in mind its statutory objectives, which include achieving a resolution of disputes as quickly and with as little formality and technicality as is practical and to minimise the cost to the parties.[6]  While it is clear that the Tribunal can require parties to the proceedings, whether in the original or review jurisdiction of the Tribunal, to produce documents, orders for general discovery are not ordinarily made, if at all, in the Tribunal. 

   [6] SAT Act s 9(b).

8. The documents that the Tribunal will require to be produced in any case will be documents which are relevant to the issues in dispute in the proceedings.  In the review jurisdiction, there are specific rules which require the decision­maker at the outset to provide the Tribunal with all of the material relevant to the decision, so that the Tribunal will be able to stand in the position of the decision-maker and reach the correct and preferable decision at the date of the review.  In contrast, the position in the original jurisdiction of the Tribunal, which includes its vocational regulatory jurisdiction, requires orders for production to be tailored by reference to the particular issues in dispute.  Customarily, however, the Tribunal will order the applicant to file and serve any documents upon which it intends to rely for the purposes of the final hearing. 

9. This does not preclude the Tribunal from considering an application to require an applicant to produce any other documents or materials which may be relevant to the issues in dispute but which have not been produced by an applicant as part of that bundle.  That is the position in the present case.  The respondent wishes to ascertain whether the investigators on behalf of the applicant have had communications with third parties who are to be called as witnesses, or indeed, with any other third parties even if they are not to be called as witnesses, in relation to the allegations against the respondent, because he considers that those communications may have a bearing on the evidence relied upon by the applicant against the respondent.

10. The application for the production of Documents Sought is not, in my view, a mere fishing expedition.  There is at least some indication that the horses in question may have been treated for soreness.  Evidence in relation to matters of that kind, which might have been given by any third parties to the applicant would, for example, be relevant to the respondent's contention that his treatment of the horses in question was purely for proper clinical purposes.  Further, in a case such as this, where the credibility of the witnesses will be key to the resolution of the allegations against the respondent, it will be highly relevant whether the recollections of those witnesses, as to any conversations, or interactions, with the respondent, have changed over time.  Documents which record communications between investigators or officers or staff of the applicant and such third parties, in relation to the allegations now made against the respondent, will for that reason, clearly be relevant to the issues in dispute. 

11. As mentioned above, the Tribunal's power in s 34(5) of the SAT Act needs to be construed and exercised bearing in mind its statutory objectives. The narrowed scope of the application for the production of the Documents Sought has avoided arguments about the implications of the Tribunal's obligation to act speedily and with as little formality and technicality as is practicable in a case where an order is sought for the production of a very large number of documents.[7]  The scope of any documents which would be required to be produced within the category of the Documents Sought is not so wide as to require any consideration of the implications with that obligation. 

Procedural fairness

[7] SAT Act s 9(b).

1. The primary reason why the applicant resists production of the Documents Sought is on the basis that production under s 34(5) is not necessary to afford procedural fairness to the respondent. The applicant says that it is necessary only for the respondent to know what the applicant's case is and that he already knows the applicant's case by reference to the statement of issues, facts and contentions (which has been filed), to the bundle of documents (which has been filed), and that he will obtain more precise detail of that case in due course, by reference to the precis of witnesses' evidence and to the oral evidence led at the hearing.

2. In my view, the measure of procedural fairness to the respondent should not be viewed as narrowly as the applicant contends.  In any event, even if production of the Documents Sought was not required in order to afford procedural fairness to the respondent, the Tribunal's obligation to ensure that the proceedings are conducted fairly and according to the substantial merits of the case warrants the conclusion that the order for the production of the Documents Sought should be made.  The respondent requires the production of the Documents Sought for the purpose of being able to test the credibility of the witnesses and to marshal a defence, by exploring other avenues of inquiry as to any relevant evidence that might be given by third parties, other than those on whose evidence the applicant proposes to rely.

Protected matter

1. The applicant contends that the Documents Sought will, by their nature, contain personal information about third parties and that that personal information would constitute exempt personal information for the purposes of the Freedom of Information Act 1992 (WA) (FOI Act) and would therefore constitute 'protected matter' for the purposes of s 34(6) of the SAT Act.

2. 'Protected matter' is defined by s 3(1) of the SAT Act to mean:

   (a)any information or document to which a certificate under section 159(2) applies, except to the extent that an order of the Tribunal under section 159(4) that its disclosure would not be contrary to the public interest has effect; or

   (b)exempt matter or an exempt document[.]

3. In this case there is no certificate under s 159(4) of the SAT Act. Therefore, the focus of the argument is solely on the question whether the Documents Sought are likely to contain exempt matter or to be exempt documents. An 'exempt document' means a document that contains 'exempt matter'.[8] Exempt matter is defined to mean matter that is exempt under Sch 1 to the FOI Act.[9]  The parties have proceeded on the basis of an assumption that the Documents Sought, if they exist, will inevitably contain prima facie exempt matter because they contain personal information in relation to the third parties with whom the officers or investigators of the applicant have spoken.

   [8] SAT Act s 3(1).

   [9] SAT Act s 3(1).

4. Schedule 1 to the FOI Act contains a number of exemptions from the obligation to provide access to documents. One of those is the exemption for personal information in cl 3. Clause 3(1) provides that a matter is exempt matter if its disclosure would reveal personal information about an individual, whether living or dead. A document which contains such personal information is prima facie exempt from disclosure. However, cl 3(6) relevantly provides that matter is not exempt under cl 3(1) if its disclosure would, on balance, be in the public interest.

5. The question of the meaning of the public interest was considered by the Supreme Court in S v Department for Child Protection and Family Support.[10]  In that case Smith AJ (as her Honour then was) made the following observations, which I respectfully adopt:[11]  

   [10] S v Department for Child Protection and Family Support [2017] WASC 305.

   [11] S v Department for Child Protection and Family Support [2017] WASC 305 at [51] ­ [55].

   Pursuant to s 102(3), where cl 3(6) applies, the onus is on the access applicant to establish that disclosure would, on balance, be in the public interest.

   Matters of public interest are not required to be special or extraordinary, but are matters that are of general interest to the public.

   The words 'in the public interest' ordinarily require consideration of a number of competing arguments about, or features or 'facets' of, the public interest:  Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 [137] (Hayne J); applying McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [55].

   The approach to determining what is in the 'public interest' was described in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ) as follows:

   [T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view':  Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J).

   The parties in this matter agree that the test to be applied when assessing the public interest when access is sought to documents under freedom of information legislation is as applied by the Appeal Division of the Full Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63, 75, where their Honours observed:

   The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.  The interest is therefore the interest of the public as distinct from the interest of an individual or individuals:  Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, 480 (Barwick CJ).

6. Counsel for the applicant contended that the key public interest in the present case was the protection of the privacy of any third parties who may have spoken with officers of the applicant. However, Counsel for the applicant also accepted that there could be a public interest in the Tribunal ensuring that it complies with its statutory obligations in s 9 of the SAT Act which include, relevantly, the obligation to achieve the resolution of questions, complaints or disputes fairly and according to the substantial merits of the case.

7. In an application under the FOI Act for access to documents of a government agency, the protection of the privacy of third parties is a public interest which is afforded very significant weight. That public interest clearly underlies the existence of the exemption in cl 3 of Sch 1 to the FOI Act. However, as the exception in cl 3(6) itself reveals, that aspect of the public interest is not determinative in every case.

1. In a case such as the present, where third parties have provided evidence to the applicant which the applicant proposes to rely upon in its case against the respondent, the protection of the privacy of the identity of those individuals cannot presently be given any such significant weight.  (The identity and personal information about those individuals is likely to be disclosed in due course in the hearing).

2. In so far as the applicant may have spoken with other third parties in relation to the allegations against the respondent, but does not propose to rely upon the evidence of those third parties, the protection of the privacy of those individuals warrants more significant weight in the analysis.  The protection of the privacy of those third parties would weigh against disclosure of that personal information.  In this respect, counsel for the respondent sought to draw a distinction between the role of the Tribunal in the exercise of its review jurisdiction and the role of the Tribunal in the exercise of its original jurisdiction.  The respondent sought to distinguish authorities in this Tribunal in relation to where the public interest lies in respect of the disclosure of personal information, on the basis that those authorities concerned the review jurisdiction of the Tribunal.

3. I am not persuaded that a different approach is warranted.  In every case, there needs to be a consideration and balancing of all relevant aspects of the public interest.  It may be that in the context of particular proceedings, whether in the review jurisdiction or original jurisdiction of the Tribunal, different considerations will arise from the facts of the particular case.  Any point of distinction, in my view, would not arise from the original or review jurisdiction of the Tribunal being exercised, but from the particular facts of each individual case. 

4. In Neil and Legal Profession Complaints Committee,[12] Chaney J observed that in considering the application of exemptions under the FOI Act in the context of s 34(5) and s 34(6) of the SAT Act, the rules of procedural fairness which require disclosure of material information to all parties in litigation reflect the public interest. Therefore, if a party is in possession of a document which contains personal information and that personal information is relevant to the decision to be made, the public interest in fair proceedings will weigh in favour of disclosure. For that reason, the personal information will not be regarded as protected matter. Generally speaking, where personal information is relevant to a decision-making process, the exception in Sch 1 cl 3(6) to the FOI Act will prevent the personal information being categorised as exempt matter, and thus as protected matter for the purposes of s 34(6) of the SAT Act.

   [12] Neil and Legal Profession Complaints Committee [2011] WASAT 88 at [14].

5. The respondent pointed to a number of public interest factors which favoured disclosure in this case.  First, the respondent submitted that the Tribunal was under an obligation to ensure a fair hearing for the respondent.  Counsel for the respondent submitted that the Tribunal's obligation is to decide the matter according to the substantial merits of the case and that in order to do so, any personal information in relation to third parties which bears upon the allegations against the respondent should be disclosed for the purposes of the respondent being able to test the evidence of any witnesses, or to marshal his defence.  I accept that submission.

6. Secondly, counsel for the respondent submitted that the Tribunal's obligation to have regard to the due administration of justice was also a relevant public interest factor.  I accept that submission.

7. Thirdly, it was submitted that there was a public interest in a regulator conducting its investigations in a transparent fashion.  It is not necessary for present purposes to make any determination as to the obligations of the applicant in the conduct of proceedings such as this, other than to say that there can be no doubt that regulators with powers of the kind possessed by the applicant in this case can be expected to act with integrity, and with a view to ensuring that the proceedings brought against practitioners are conducted fairly.

8. In the present circumstances, in my view, the public interests in favour of disclosure of any personal information in the Documents Sought, will outweigh the public interest in favour of the privacy of the third parties concerned. 

9. A further observation to add in relation to the assessment of the public interest derives from Nurses and Midwives Board of Western Australia and Watson.[13] In that case, the issue the subject of the decision concerned the disclosure of documents containing personal information by a third party to an investigatory body. The Tribunal concluded that the relevant public interest was that information which in that case had been obtained by the police in the course of a criminal investigation, could be of direct relevance to the disciplinary proceedings in the Tribunal, and that information should be produced under s 35 of the SAT Act. That public interest, in my view, applies equally to the present case where the applicant is pursuing proceedings against the respondent and the Documents Sought are in the possession of the applicant, but it has not indicated that it proposes to rely upon them and has not produced them in its bundle of documents. To the extent that the Documents Sought have relevance to the issues in dispute in the disciplinary proceedings, then the public interest in the fair conduct of the proceedings, supports the disclosure of the Documents Sought.

   [13] Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59 at [22].

10. I should make two further observations.  The first is that I have reached this conclusion having regard to the possibility that the third parties in question will be those called to give evidence at the hearing, and also to the possibility that there may be third parties referred to in the Documents Sought who the applicant does not propose to call to give evidence, at least at this stage.  In either instance, in my view, the public interest in the disclosure of the personal information about those third parties will outweigh the public interest in favour of non­disclosure of that information.  Certainly in the case of those third parties who are to be called as witnesses, their personal information is already going to be made public in the context of the present proceedings.  In relation to third parties who the applicant does not propose to call as witnesses, if they nevertheless have information relevant to the proceedings against the respondent, disclosure of that personal information, so that the respondent can properly test any evidence or marshal his defence, is warranted in light of the Tribunal's obligation to ensure that the respondent has a fair hearing and to ensure that the matter is decided according to the substantial merits of the case.

11. The second observation is that the applicant did not advance any contention that any personal information about third parties had been obtained, in the context of an investigation where undertakings had been given to those third parties about the confidentiality of the information they provided to the applicant. Further, the applicant did not contend that there were any other considerations relevant to other exemptions under the FOI Act which would warrant the non-disclosure of the personal information in the Documents Sought.

12. Accordingly, the case falls to be decided solely by reference to whether the Documents Sought contain matter which is 'protected matter', having regard to Sch 1 cl 3 to the FOI Act.

13. For the reasons I have given, in my view, the Documents Sought do not contain protected matter and consequently s 34(6) does not prevent the Tribunal from making an order for the production of the Documents Sought under s 34(5) of the SAT Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

EH
Associate to the Honourable Justice Pritchard

9 JANUARY 2020