WEQ (a pseudonym) v Medical Board of Australia

[2025] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0155

WEQ (A PSEUDONYM)	Applicant
v
MEDICAL BOARD OF AUSTRALIA	Respondent

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JUDGE:	WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2025
DATE OF JUDGMENT:	9 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 100
JUDGMENT APPEALED FROM:	[WEQ] v Medical Board of Australia (Supreme Court of Victoria, Richards J, 14 November 2024)

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PRACTICE AND PROCEDURE –– Application for leave to appeal interlocutory orders of trial judge – Interim suppression and confidentiality orders – Orders deferring consideration of certain matters until trial – Orders interlocutory and made in exercise of discretion – Applicant will have opportunity to make arguments at trial about final suppression and confidentiality orders – No real prospects of success – Application for leave to appeal refused.

OPEN COURTS – Suppression orders – Underlying proceeding concerns disciplinary proceedings against medical practitioner – Referral to regulator by Family Court – Materials in Family Court proceeding released to regulator on condition that confidentiality orders sought in disciplinary proceeding – Respondent sought suppression orders and confidentiality orders in present proceeding – Closed court order made – Pseudonym order made – Order prohibiting inspection of court file made – Application for suppression orders refused – Proposed orders of great breadth – Parties given opportunity to comment on any redactions required in Court’s reasons.

Open Courts Act 2013, ss 17, 20, 30; Supreme Court (General Civil Procedure) Rules 2015, r 28.05(4); Supreme Court Act 1986, s 14C.

Fei v Hexin Pty Ltd (2024) 75 VR 581; Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19; MSB v Chief Commissioner of Police (2018) 57 VR 360; Re Japara Holdings [2010] VSC 361; Re Proceeding 291 of 1944 [2006] VSC 50, discussed.

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Counsel on the papers
Applicant:		In person
Respondent:		Mr J Stoller
Solicitors
Applicant:	Not applicable
Respondent:	Russell Kennedy

WALKER JA:

1. The applicant, WEQ, is a medical practitioner who was registered with the Medical Board of Australia. One function of the Board is to refer medical practitioners to responsible tribunals pursuant to the Health Practitioner Regulation National Law (Victoria) (the ‘National Law’).[1] On 30 June 2020, the Board referred WEQ to the Victorian Civil and Administrative Tribunal under s 193 of the National Law, on the basis that it had formed a reasonable belief he had behaved in a way that constitutes professional misconduct.

   [1]See National Law, s 35(1)(i). The National Law is contained in a schedule to the Health Practitioner National Law Act 2009 (Qld), which is applied in Victoria by s 4 of the Health Practitioner National Law Act 2009 (Vic).

2. On 30 July 2024, the Tribunal made final orders and delivered reasons in the referral proceeding.[2] The Tribunal made substantive orders that reprimanded WEQ, disqualified him from applying for registration as a health practitioner for two years, and prohibited him from using the title ‘Dr’ or ‘Doctor’ unless and until he regains registration. On 12 June 2024, the Tribunal also confirmed various suppression orders under the Open Courts Act 2013 and other confidentiality orders that had been made at an earlier stage of the proceeding.

   [2]Medical Board of Australia v WEQ [2024] VCAT 728 (‘VCAT Reasons’).

3. On 27 August 2024, WEQ applied to the Trial Division of this Court for leave to appeal from the final orders of the Tribunal in the referral proceeding. That proceeding has not yet been heard and determined. A directions hearing was held on 14 November 2024, after which the trial judge made 22 orders concerning the conduct of the proceeding. Her Honour:

   (a)made orders listing WEQ’s application for leave to appeal the Tribunal’s 30 July 2024 orders, and, if leave is granted, the appeal, for hearing, and setting a timetable for the preparation of materials for the hearing (orders 1–‍14);

   (b)made interim confidentiality and suppression orders (orders 15–‍19), and an order containing exceptions to those orders (order 20);

   (c)adjourned consideration of an application for four orders (sought by WEQ in a summons filed on 30 October 2024) to be determined at trial on 13 June 2025 (order 21); and

   (d)deferred consideration of whether any constitutional question arises in the proceeding until after the parties’ written submissions have been filed (order 22).

4. One of the four orders sought by WEQ in his summons, referred to in paragraph [3(c)] above, was an order that the Court issue a certificate under s 128 of the Evidence Act 1995 (Cth) in relation to evidence that WEQ had given in the Family Court, in around 2017, in a proceeding between WEQ and his former partner (‘ABC’).[3] WEQ informed the judge that he had previously sought a certificate from the Family Court, but it had refused to grant one. In the directions hearing the judge reiterated that the matters raised in the summons would be dealt with in the final hearing, but noted that she has no supervisory jurisdiction over a judge of what is now Division 1 of the Federal Circuit and Family Court (but which I shall refer to as the Family Court).

   [3]It appears from WEQ’s summons that the certificate was sought under both the Evidence Act 1995 (Cth) and the Evidence Act 2008.

5. WEQ now seeks leave to appeal orders 15 to 22 on five proposed grounds:[4]

   [4]Footnotes omitted. I will refer to the proposed grounds simply as grounds, for convenience.

   (1)Justice Richards held she had no jurisdiction to issue a certificate under s 128(5) Evidence Act 1995 (Cth) via mandamus against Division 1 Family Court judges in an appeal from a State tribunal but did not state where the jurisdiction lay nor arrange transfer of that matter to a court with jurisdiction.

   (2)Justice Richards issued suppression and anonymisation orders for this case with matters outside the Court’s jurisdiction.

   (3)Court of Appeal’s reasons at [67] stated ‘[i]n the absence of evidence or sufficient credible information under s 14, it was not open to the Tribunal to be satisfied that s 121 of itself would not prevent the risk of prejudice to the proper administration of justice in the Family Court’, however suppression orders continue to be made when it is impossible to measure or perform a risk‑benefit analysis of anonymising versus identifying Family Court litigants.

   (4)The Appellant was denied procedural fairness by:

   (a)Refusing transfer of the matter to a court with jurisdiction for constitutional writs and injunctions on mandamus against Division 1 Family Court judges in an appeal from a State tribunal.

   (b)Refusing to immediately reinstate the Appellant's registration, because the Court lacked jurisdiction, a fortiori the State tribunal also lacked jurisdiction.

   (c)Suppression and anonymisation orders were made without taking into consideration:

   (i)The mandated duty to revoke suppression orders for victims and those claiming to be victims of domestic violence under s 15(1B) Open Courts Act 2013.

   (ii)That suppression orders are a serious risk to the Appellant and his health and reputation.

   (iii)That delay and suppression orders further perpetuate coercive control, domestic violence, and systems abuse of the Appellant and his children.

   (5)R 2.02 Supreme Court (General Civil Procedure) Rules 2015 mandates proceedings should not be wholly set aside because they were commenced by the wrong process. There is no universal requirement that the originating process take a particular form.

6. On 25 March 2025, the Registrar of the Court of Appeal referred WEQ’s application for leave to appeal to me to determine pursuant to r 64.15 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

7. On 1 April 2025, the Board filed an application seeking various confidentiality and suppression orders in this proceeding. On 3 April 2025, the Registrar of the Court of Appeal also referred the Board’s application for confidentiality and suppression orders to me to determine pursuant to r 64.15 of the Rules.

8. I determined that an oral hearing concerning both the application for leave to appeal and the Board’s application for confidentiality and suppression orders would be appropriate.

9. Having considered the materials filed by the parties and their oral submissions, I have determined that the application for leave to appeal is totally without merit and must be refused. In relation to the Board’s application for suppression orders and confidentiality orders, I have determined that some of the orders sought by the Board ought to be made, whereas other orders sought by the Board ought not be made. My reasons in relation to both applications are set out below.

10. For completeness, I also note that WEQ filed in this proceeding a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth), in which he purported to identify various matters that he said arise under the Constitution or involve its interpretation. He did not file an affidavit of service, notwithstanding being required to do so by r 19.03(4) of the Rules and being reminded to do so by the Registry. After considering WEQ’s s 78B notice, I was satisfied his application for leave to appeal in this Court did not involve a matter arising under the Constitution or involving its interpretation. I therefore determined his application without being satisfied that notice had been served on the Attorneys-General as required by s 78B.

The application for leave to appeal

The judge’s orders and reasons

1. WEQ seeks leave to appeal orders 15–22. Orders 15–19 are as follows:

   Interim suppression and confidentiality orders

   (15)Pursuant to rule 28.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), all documents filed in this proceeding are to remain confidential and are not available for inspection, other than by a party to this proceeding or their legal representatives.

   (16)In this proceeding the applicant is to be referred to by the pseudonym ‘WEQ’ and his former partner is to be referred to by the pseudonym ‘ABC’.

   (17)Pursuant to section 20 of the Open Courts Act 2013 (Vic), any report of the whole or part of this proceeding, or information derived from this proceeding, that might enable the applicant, ABC, or ABC’s children to be identified, must not be published or otherwise disclosed, until further order of the Court.

   (18)Without limiting the generality of Order 17, no report of any part of this proceeding may be published, until further order of the Court, which:

   (a)discloses the area(s) of medicine that the applicant and/or ABC work in;

   (b)discloses the name and address of any premises at which the applicant works or has worked, or the locality in which any such premises are situated;

   (c)discloses the ethnic or religious background or beliefs of the applicant; or

   (d)identifies any medical treatment received by ABC or ABC’s children.

   (19)Orders 17 and 18 apply throughout Australia on the basis that the Court’s reasons for decision are published on and other electronic platforms that may be accessed throughout Australia.

2. Order 20 provides various exceptions to the operation of orders 17 and 18. In summary, it states that nothing in the orders prevents:

   (a)the Board or its lawyers from disclosing information about the proceeding to any person performing functions under the National Law;

   (b)the Board or its lawyers or any person performing functions under the National Law from disclosing information about the proceeding in the course of performing those functions;

   (c)the Board, the Australian Health Practitioner Regulation Agency (‘AHPRA’), or their lawyers from disclosing the name and identity of the applicant, or copies of suppression orders and/or published decisions, to any entity empowered by legislation or regulations to provide certain identified medical services, or to any entity empowered by legislation or regulations to regulate the provision of those services;

   (d)the Board or its lawyers from identifying the applicant as WEQ, or making any report of the proceeding, or information derived from the proceeding, to any of the following persons for the purpose of assessing or addressing a potential safety risk (an ‘authorised communication’):

   (i)various officers, employees and contractors of AHPRA and their lawyers;

   (ii)Victoria Police and their lawyers;

   (iii)the Victorian Fixated Threat Assessment Centre;

   (iv)any Victorian or Federal Court; and/or

   (v)the Tribunal;

   (e)the applicant or his lawyers identifying himself as the applicant in the proceeding, or making any report of the proceeding, or information derived from the proceeding, in order to respond to an authorised communication;

   (f)the respondent, AHPRA, or their lawyers, from making a report of the proceeding, or information derived from this proceeding, to ABC and/or ABC’s legal representatives insofar as this is necessary:

   (i)to inform ABC about the application for suppression orders or confidentiality orders in this proceeding or about whether suppression orders or confidentiality orders have been granted and their terms;

   (ii)to inform ABC of any application to the Tribunal regarding confidentiality orders, and/or of communications with the Tribunal about any proposed variations to confidentiality orders; and/or

   (iii)to inform ABC of any application to the Family Court for a variation to confidentiality orders made in the Family Court proceeding and to inform her about communications with the Family Court regarding any proposed variations to confidentiality orders in that proceeding;

   (g)the Board, AHPRA, ABC, or WEQ, or lawyers for any of those persons, from disclosing information that reveals the identity of the applicant, or making any report of the whole or part of this proceeding, or information derived from this proceeding, to the Family Court insofar as necessary when making or responding to any application and/or in any hearing in the Family Court in a matter where the applicant is a party; and

   (h)the Board, AHPRA, or their lawyers, from making any report of the whole or part of the proceeding, or information derived from the proceeding (including documents provided in the proceeding and transcripts of the proceeding) to the applicant or the applicant’s legal representatives or professional indemnity insurers.

3. Orders 21 and 22 are as follows:

   Applicant’s summons

   (21)The applicant’s applications for the orders sought in paragraphs 1, 2, 3, and 4 of the summons filed on 30 October 2024 are adjourned to the trial of the proceeding.

   Further directions

   (22)After considering the parties’ written submissions, a Judge in Charge of the Judicial Review and Appeals List will determine whether any constitutional question arises in the proceeding and, if so, will give directions for the filing and service of notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth).

4. In the section of the orders entitled ‘Other Matters’, the judge set out her reasons for making orders 17, 18 and 20, as follows:

   A.    The Court was satisfied that Orders 17 and 18 of these Orders are necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means, for the reasons set out at [18]–[23] of the respondent’s outline of submissions filed on 6 December 2023 in proceeding S ECI 2023 02572 (2023 Appeal).

   B.    In summary, the Court was satisfied that these Orders are necessary to prevent publication of particulars sufficient to identify the applicant’s former partner and their children, and to ensure that the Federal Circuit and Family Court of Australia is not deterred from making notifications to the respondent and other regulatory bodies for fear that the best interests of the children will be prejudiced by publication of details of their parents’ family law proceedings. The Court noted Part XIVB of the Family Law Act 1975 (Cth), the orders of the Family Court made on 8 November 2019 and 27 May 2021 in proceeding [REDACTED], and the Court of Appeal’s judgment in WEQ v Medical Board of Australia [2021] VSCA 343.

   C.    The Court noted the applicant’s submission that he should be identified by name in this proceeding, in order to vindicate his reputation and for other reasons.

   D. While acknowledging the force of this submission, the Court doubted that the applicant could be identified without also enabling the identification of his former partner and their children. The applicant may make further submissions on this question at the final hearing of the proceeding. For that reason, Orders 17 and 18 of these Orders are made on an interim basis, pursuant to s 20 of the Open Courts Act 2013 (Vic).

   E.     For the reasons set out in the respondent’s further submissions filed on 7 March 2024 in the 2023 Appeal, the Court was satisfied that Orders 17 and 18 should not apply in the circumstances set out in Order 20.

Consideration

1. Section 14C of the Supreme Court Act requires this Court to refuse leave to appeal unless the appeal has a real prospect of success. Furthermore, even if a proposed appeal has a real prospect of success, the court retains a discretion to refuse leave.[5] Factors that bear upon the exercise of the discretion include:

   (a)whether the decision is interlocutory in nature;

   (b)whether the matter in question is one of practice and procedure; and

   (c)whether the applicant would suffer any substantial injustice if the decision was left to stand.[6]

   [5]See, eg, Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [96] (Maxwell ACJ, Whelan and Kyrou JJA); Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110] (Kyrou and McLeish JJA) (‘Cargill’); Fei v Hexin Pty Ltd (2024) 75 VR 581, 586–7 [67] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158 (‘Fei’).

   [6]See, eg, Cargill [2018] VSCA 260, [110]–[113] (Kyrou and McLeish JJA); Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32, [19] (Ferguson CJ, Whelan and McLeish JJA); Fei (2024) 75 VR 581, 586–7 [67] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158.

2. In addition, where the orders in question were made in the exercise of a discretion, any appeal against them must be determined upon the principles identified in House v The King.[7] And it has been held in numerous cases that in order to succeed in obtaining leave to appeal an interlocutory order made in the exercise of a discretion, the applicant must not only show error, but must also show that they would suffer a substantial injustice if the decision was left undisturbed.[8] In Fei v Hexin Pty Ltd this Court said that, for policy reasons ‘this two-fold test is to be applied stringently’.[9]

   [7](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (‘House’).

   [8]See, eg, Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401, 407–‍10 (Winneke CJ, Pape and Starke JJ); Niemann v Electronic Industries Ltd [1978] VR 431, 433 (McInerney J), 437–9, 441 (Murphy J), 444–5 (Gillard J); Fei (2024) 75 VR 581, 587 [69] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158.

   [9]Fei (2024) 75 VR 581, 587 [69] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158.

3. In the present case the orders in issue were discretionary in nature. They were also interlocutory: the confidentiality and suppression orders were interim; and orders 21 and 22 concerned the management of the proceeding, and concerned matters of practice and procedure. Furthermore, it cannot be said that the applicant would suffer any substantial injustice if any of the orders were left to stand. In so far as the confidentiality and suppression orders are concerned, the applicant will have an opportunity, at the final hearing, to advance submissions on whether final confidentiality and suppression orders ought to be made. And in so far as orders 21 and 22 are concerned, those orders simply deferred consideration of certain matters to a later time.

1. In light of the above matters, the application for leave to appeal has no prospects of success. Furthermore, for the reasons that follow, none of the five grounds advanced by WEQ have any prospect of success.

Ground 1

1. Ground 1 was that, having held that she lacked jurisdiction to issue a s 128 certificate ‘via mandamus against’ the Family Court, the judge ‘did not state where the jurisdiction lay nor arrange for transfer of that matter to a court with jurisdiction’.

2. This ground is hopeless. First, the judge did not make a final determination about WEQ’s application for a s 128 certificate. Although she expressed a preliminary view that she lacked jurisdiction to issue the s 128 certificate, her Honour deferred consideration of that application until the final hearing of the matter. That is the effect of order 21.

3. Secondly, the judge was correct to state in passing that she has no supervisory jurisdiction over the Family Court or its judges (and that aspect of her Honour’s decision does not appear to be challenged on the appeal). There was no requirement for the Court to have transferred WEQ’s application for a certificate to another court. Nor would it have been appropriate for the judge to transfer WEQ’s application for leave to appeal to another court. Nor was the judge required to provide legal advice to WEQ concerning where supervisory jurisdiction over the Family Court might lie.

Ground 2

1. Ground 2 contends that the suppression and anonymisation orders made by the judge were ‘outside the Court’s jurisdiction’. In his written case, WEQ connected this contention to the Court’s lack of jurisdiction to issue a s 128 certificate in relation to his evidence in the Family Court. He said this:

   Where there is no jurisdiction, there is no court. In such cases, the only orders that can be made are to set the matter aside or transfer it to another court to determine jurisdiction and/or finally dispose of the matter. Additionally, other orders can be made to prepare the case for transfer or to address matters that are within the existing jurisdiction.

   Suppression and confidentiality orders hinder rather than help this case.

   Suppression and confidentiality orders were not made to determine the Supreme Court’s jurisdiction for the constitutional writs and injunctions sought. Therefore the suppression and confidentiality orders cannot be administrative or procedural. …

2. This ground, too, is hopeless. Plainly the judge had (and continues to have) jurisdiction in relation to the proceeding before her by reason of the applicant’s application for leave to appeal made under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. Indeed, as the Board pointed out in its written case, WEQ appears to accept that the judge had jurisdiction in relation to orders 1 to 14, which he does not challenge.

3. The fact that a judge of this Court lacks jurisdiction to grant WEQ a s 128 certificate in relation to evidence he gave in a different court, or jurisdiction to make an order for mandamus directed to that other court, does not deprive the Court of jurisdiction in relation to the proceeding before it, including jurisdiction to make suppression orders pursuant to the Open Courts Act.

Ground 3

1. Ground 3 contends that ‘suppression orders continue to be made when it is impossible to measure or perform a risk-benefit analysis of anonymising versus identifying Family Court litigants’. I infer that WEQ contends that the making of the suppression orders was contrary to this Court’s earlier decision in WEQ v Medical Board of Australia.[10]

   [10](2021) 69 VR 1; [2021] VSCA 343.

2. In his written case, WEQ elaborated on this ground as follows:

   Court of Appeal’s reasons at [81] stated ‘[i]n the absence of evidence or sufficient credible information under s 14, it was not open to the Tribunal to be satisfied that s 121 of itself would not prevent the risk of prejudice to the proper administration of justice in the Family Court’, however suppression orders continue to be made when:

   a. There is no such evidence.

   b. It is impossible to prove that anonymising Family Court litigants yields greater benefits than detriments such as decreased accountability and transparency, and increased risk of misconduct such as false allegations, overservicing and increased and prolonged litigation.

   …

   8.It is impossible to provide evidence of such which would require a change of legislation.[11]

   [11]Footnote omitted. I note that WEQ’s written case referred to paragraph [67] of the Court of Appeal judgment; but then referred in a footnote to paragraph [81], which is the correct paragraph.

3. In paragraph [81] of the Court of Appeal judgment, concerning an earlier suppression order made by the Tribunal, the Court said this:

   The Tribunal also relied, in refusing to revoke the proceeding suppression order, on s 18(1)(a) of the [Open Courts Act], which permits an order to be made if it is necessary to prevent a substantial risk of prejudice to the proper administration of justice ‘that cannot be prevented by other reasonably available means’. For the reasons already given, s 121 [of the Family Law Act 1975 (Cth)] could not justify an order on this ground either. In the absence of evidence or sufficient credible information under s 14, it was not open to the Tribunal to be satisfied that s 121 of itself would not prevent the risk of prejudice to the proper administration of justice in the Family Court.[12]

   [12]Citations omitted.

4. In the present case the judge did not make any orders under s 18 of the Open Courts Act. Rather, she made an interim order under s 20 of the Open Courts Act, which may be made without determining the merits of the application. The judge stated that WEQ may make further submissions concerning final suppression orders at the hearing of the proceeding.

5. Nor did the judge rely on s 121 of the Family Law Act 1975 (Cth) as the basis for her orders. Rather, she determined that interim orders were necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means on the basis that:

   (a)the orders are necessary to prevent publication of particulars sufficient to identify the applicant’s former partner and their children; and

   (b)the orders are necessary to ensure that the Family Court is not deterred from making notifications to the respondent and other regulatory bodies for fear that the best interests of the children will be prejudiced by publication of details of their parents’ family law proceedings.

6. The judge referred to Part XIVB of the Family Law Act, to the orders of the Family Court concerning WEQ and his family, and to the Court of Appeal’s judgment.

7. In light of the above, there is no basis to discern specific error or to found a conclusion that the judge’s decision was unreasonable or unjust in the House sense.

8. Ground 3 thus has no prospects of success.

Ground 4

1. Ground 4 contends that the judge denied WEQ procedural fairness by:

   (a)‘refusing transfer of the matter to a court with jurisdiction for constitutional writs and injunctions on mandamus against Division 1 Family Court judges in an appeal from a State tribunal’;

   (b)refusing to reinstate WEQ’s registration, ‘because the Court lacked jurisdiction, a fortiori the State tribunal also lacked jurisdiction’; and

   (c)making suppression and anonymisation orders without taking into account:

   (i)an asserted duty to revoke suppression orders under s 15(1B) of the Open Courts Act;

   (ii)that the orders are ‘a serious risk’ to WEQ’s health and reputation; and

   (iii)that delay and the suppression orders ‘further perpetuate coercive control, domestic violence and systems abuse of [the applicant] and his children’ [sic].

2. In his written case, WEQ repeated his complaint that, if the Court lacked jurisdiction to issue a s 128 certificate, it should have transferred the case to ‘any alternative court with jurisdiction’. This issue has been dealt with above, in considering ground 1. For the reasons there given, this aspect of ground 4 is hopeless.

3. WEQ also argued that ‘if the Supreme Court lacks jurisdiction for the mandamus then the tribunal would also have lacked jurisdiction and [WEQ’s] registration should have been immediately reinstated’. However, the Tribunal’s orders regarding WEQ’s registration were made in the exercise of the jurisdiction conferred on it by the National Law. Whether or not the Trial Division of this Court has jurisdiction to issue the s 128 certificate sought by the applicant is entirely different from the question of whether the Tribunal had jurisdiction in relation to the disciplinary proceeding.

4. Ground 4 is also hopeless in so far as it relies upon s 15(1B) of the Open Courts Act. Section 15(1) of that Act provides for a court that made a suppression order to review the order on the application of a party to the proceeding in connection with which the order was made. Section 15(1A) provides for a court hearing an appeal from a proceeding in which a suppression order was made to review that suppression order. Section 15(1B) then provides as follows:

   (1B)Subject to subsection (1C), in reviewing an order under subsection (1) or (1A), the court or tribunal must make an order revoking the suppression order which is the subject of the review if—

   (a)unless the review is on the court's or tribunal's own motion, the application for review is made by a party who is a victim or an alleged victim of an offence involving a sexual offence or a family violence offence; and

   (b)the court or tribunal is satisfied that the party—

   (i)gives permission to that disclosure; and

   (ii)is 18 years of age or over; and

   (c)it is otherwise appropriate in all the circumstances for the order to be revoked.

5. Section 15(1B) has no application in the present context.

6. First, the orders made by the judge were not made on a review of a suppression order. There is nothing in the material before me that suggests that WEQ has sought a review of the judge’s suppression order under s 15. Secondly, even if WEQ had sought review under s 15, there is nothing in the material before me that suggests that he is a party who falls within s 15(1B)(a).

7. None of the other matters raised by WEQ are capable of giving rise to a denial of procedural fairness. That is particularly so given that the judge made clear that the orders were made on an interim basis only, and that WEQ will be given an opportunity to make further submissions about the orders at the final hearing of his application for leave to appeal against the Tribunal’s decision.

8. Ground 4 is thus hopeless.

Ground 5

1. Ground 5 is that proceedings should not be set aside because they were commenced by the wrong process. In his written case the applicant elaborated on this ground as follows:

   A Judicial Review can issue constitutional writs and injunctions against Division 1 Family Court judges because under s 39B(1EA)(d)(iii) Judiciary Act 1903 it classifies as a proceeding before a court of a State. By staying the Judicial Review (S ECI 2024 01423) without taking any submissions the Appellant was deprived of obtaining the relief he sought. By refusing to convert the earlier Appeal (S ECI 2023 02572) to a Judicial Review without taking submissions the Appellant was again deprived of obtaining the relief he sought.

   R 2.02 Supreme Court (General Civil Procedure) Rules 2015 states ‘[t]he Court shall not wholly set aside any proceeding or the originating process by which the proceeding was commenced on the ground that the proceeding was commenced by the wrong process’. The words ‘shall’ and ‘must’ imply the duty of the court to be mandatory. If the Appeal is not changed to a Judicial Review then the proceeding will become moot due to the final appeal and will have to be wholly set aside therefore r 2.02 Supreme Court (General Civil Procedure) Rules 2015 implicitly mandates that the Appeal be converted to a Judicial Review. …[13]

   [13]Citations omitted.

2. This ground, again, appears directed to the judge’s purported refusal to grant supervisory relief in relation to judges of the Family Court. This issue has been dealt with above, in considering ground 1. For the reasons there given, this aspect of ground 5 is hopeless. There is simply no error on the part of the judge in refusing to ‘convert’ the applicant’s appeal to a judicial review proceeding.

3. To the extent that WEQ relies on r 2.02 of the Rules, that rule has no relevance to this proceeding. WEQ’s application for leave to appeal against the Tribunal’s decision has not been set aside, whether because it was commenced by the wrong process or otherwise. Rather, his application for leave to appeal has been listed for final hearing in the Trial Division.

4. Ground 5 is thus hopeless.

Conclusion

1. For the reasons set out above, all of the grounds upon which WEQ seeks to rely in his application for leave to appeal are doomed to fail. To the extent that WEQ’s grounds are directed at the interim confidentiality and suppression orders (orders 15–‍20) they do not identify any basis on which the judge erred in imposing those orders, particularly given that the orders are interlocutory. WEQ’s grounds do not purport to identify any error in orders 21 and 22, which simply defer consideration of certain matters (including WEQ’s application for a s 128 certificate and a notice under s 78B of the Judiciary Act filed in the Trial Division proceeding) until the final hearing of the matter. As these orders are interlocutory and concern practice and procedure, and merely defer consideration of the relevant matters until a later date, the application for leave to appeal against these orders also has no prospect of success.

2. Thus, pursuant to s 14C of the Supreme Court Act, leave to appeal must be refused. For completeness I note that I consider the application for leave to appeal to be totally without merit.

The application for suppression orders and confidentiality orders

1. The background to the Tribunal’s decision in relation to WEQ’s de-registration involves WEQ’s relationship with his former partner (‘ABC’) and their children. It is in that context that the Board has applied in this Court for various confidentiality and suppression orders concerning WEQ’s application for leave to appeal.

2. The Board’s application was supported by an affidavit setting out the factual background. In particular, the affidavit revealed that the Board had obtained documents from the Family Court concerning a dispute between WEQ and ABC in relation to the parenting arrangements for their children. The documents were provided on the condition that the Board take all reasonable steps to preserve the anonymity of WEQ, ABC and their children, including by seeking confidentiality and suppression orders.

The orders sought

1. The confidentiality and suppression orders sought by the Board were as follows:

   (1)Pursuant to rule 28.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), all documents filed in relation to proceeding S EAPCI 2024 0155 remain confidential and not available to inspect, other than by a party to this proceeding or their legal representatives.

   (2)That pseudonym orders be made for the names of the applicant and his former partner, and that they are respectively referred to as WEQ and ABC in this proceeding.

   (3)Pursuant to section 17 of the Open Courts Act 2013 (Vic), any report of the whole or part of this proceeding, or information derived from this proceeding, that might enable the applicant, ABC or ABC’s children to be identified, must not be published or otherwise disclosed, until 31 December 2029.

   (4)Without limiting the generality of order 3, no report of any part of this proceeding may be published, until 31 December 2029, which:

   (a)discloses the area(s) of medicine that the applicant and/or ABC work in;

   (b)discloses the name and address of any premises at which the applicant works or has worked, or the locality in which any such premises are situated; or

   (c)discloses the ethnic or religious background or beliefs of the applicant.

   (5)Pursuant to section 17 of the Open Courts Act 2013 (Vic), no report of any part of this proceeding may be published that identifies any medical treatment received by ABC or ABC’s children.

   (6)Order 5 operates until the death of ABC in relation to the identification of her medical treatment, and until the death of each of the children in relation to the identification of their medical treatment.

   (7)Orders 3, 4 and 5 apply throughout Australia on the basis that the Court’s reasons for decision are published on and other electronic platforms that may be accessed throughout Australia.

   (8)An application to extend the time that orders 3 and 4 operate (including by ABC) may be made in 2029, pursuant to section 19(4)(b) of the Open Courts Act 2013 (Vic).

   (9)Pursuant to section 30 of the Open Courts Act 2013 (Vic), the whole of the proceeding be heard in closed Court.

   (10)The Court shall:

   (a)not publish any statement of written reasons for any decision in the proceeding, other than by providing copies of any written reasons to the parties; or in the alternative,

   (b)provide any written reasons for decision in the proceeding to the parties and will provide 14 days within which the parties may seek redaction of the reasons, prior to publication.

   (11)Nothing in these orders prevents:

   (a)The respondent or its legal representatives from disclosing information pertaining to this proceeding, including records and transcripts, to any person or entity exercising powers or performing functions under the Health Practitioner Regulation National Law.

   (b)The respondent or its legal representatives or any person or entity otherwise exercising powers or performing functions under the Health Practitioner Regulation National Law from disclosing information pertaining to this proceeding, including records and transcripts in the course of exercising those powers of performing those functions.

   (c)The respondent, the Australian Health Practitioner Regulation Agency (Ahpra), or their legal representatives from disclosing the real name and identity of the applicant, or copies of active Supreme Court suppression orders and/or published decisions, to any entity empowered by State or Commonwealth legislation or regulations to provide [certain medical services], or to any entity empowered by State or Commonwealth legislation or regulations to regulate the provision of [certain medical services], including [a particular entity].

   (d)The respondent or those providing legal assistance to the respondent from identifying the applicant as WEQ, or making any report of the whole or part of this proceeding, or information derived from this proceeding (including documents provided in this proceeding and transcripts of the proceeding), to any of the following persons and/or entities for the purpose of assessing or addressing a potential safety risk (an authorised communication):

   (i)the Chief Executive Officer (CEO) of Ahpra and any lawyers acting for the CEO;

   (ii)Any Ahpra staff member or contractor about whom the potential safety risk relates or may affect;

   (iii)Any member of the Corporate Risk and Resilience Team at Ahpra;

   (iv)Any Ahpra staff member required to support the implementation of any threat response plan developed by the Corporate Risk and Resilience Team at Ahpra;

   (v)Victoria Police and any lawyers acting for them;

   (vi)The Victorian Fixated Threat Assessment Centre;

   (vii)Any Victorian or Federal Court;

   (viii)The Victorian Civil and Administrative Tribunal (VCAT).

   Any person or entity in paragraphs (i)-(iv) of order 11(d) may make an authorised communication to any other person referred to in that order.

   (e)The applicant, or any legal representative of the applicant identifying himself as the applicant in this proceeding or to make any report of the whole or part of this proceeding, or information derived from this proceeding (including documents provided in this proceeding and transcripts of the proceeding) in order to respond to an authorised communication.

   Insofar as reports are made to authorised persons or entities pursuant to the exception in order 11(d) or 11(e), they are to be accompanied by copies of all current confidentiality orders and suppression orders made in this proceeding.

   (f)The respondent, Ahpra, or legal representatives acting for the respondent or Ahpra, from making any report of the whole or part of this proceeding, or information derived from this proceeding (including documents provided in this proceeding and transcripts of the proceeding), to ABC and/or ABC’s legal representatives insofar as this is necessary:

   (i)to inform ABC about the application for suppression orders or confidentiality orders in this proceeding (including the basis on which such orders are applied for), or about whether suppression orders or confidentiality orders have been granted and their terms;

   (ii)to inform ABC of any application to the VCAT or the Supreme Court regarding confidentiality orders, and/or to include her in, or inform her about, communications with or submissions to the VCAT about any proposed variations to confidentiality orders; and/or

   (iii)to inform ABC of any application to the Federal Circuit and Family Court for a variation to confidentiality orders made in the Federal Circuit and Family Court proceeding [REDACTED], and to include her in, or inform her about, communications with or submissions to the Federal Circuit and Family Court regarding any proposed variations to confidentiality orders in that proceeding.

   (g)The respondent, Ahpra, ABC or the applicant, or those providing legal assistance to any of those persons or entities, from disclosing information that reveals the identity of the applicant, or making any report of the whole or part of this proceeding, or information derived from this proceeding (including documents provided in this proceeding and transcripts of the proceeding), to the Federal Circuit and Family Court of insofar as necessary when making or responding to any application and/or in any hearing in the Federal Circuit and Family Court of Australia in a matter where the applicant is a party.

   (h)The respondent, Ahpra, or legal representatives assisting the respondent or Ahpra, from making any report of the whole or part of this proceeding, or information derived from this proceeding (including documents provided in this proceeding and transcripts of the proceeding) to the applicant or the applicant’s legal representatives or professional indemnity insurers.

1. This Board advanced the following grounds for its application:

   (1)Order 1 is necessary as it is in the interests of justice that each document filed in the proceeding remain confidential.

   (2)Orders 2, 10 and 11(f) – (g) are necessary in the interests of justice, and/or to prevent a real and substantial prejudice to the proper administration of justice.

   (3)Orders 3 to 9 are necessary to prevent a real and substantial prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.

   (4)Orders 11(a) – (c) and 11(h) are necessary in the interests of justice to allow the respondent or any person or entity to exercise their powers or to perform their functions under the Health Practitioner Regulation National Law.

   (5)Order 11(d) – (e) are necessary to protect the safety of any person and/or prevent a real and substantial prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.

Interim suppression orders and other orders

1. Following receipt of the referral from the Registrar, on 17 April 2025 I made an interim proceeding suppression order pursuant to ss 17 and 20 of the Open Courts Act 2013 prohibiting the disclosure of a report of, or any information derived from, this proceeding which might identify the applicant, his former partner, or their children, until the hearing and determination of the Board’s application for its proposed confidentiality and suppression orders.

2. I made those interim orders on the basis that doing so was necessary to preserve the subject matter of the Board’s application for confidentiality and suppression orders.

3. I also made the following orders:

   (a)an order restricting access to the Court’s file in this proceeding pursuant to r 28.05(4) of the Rules;

   (b)an order amending the title of the proceeding so as to use the pseudonym ‘WEQ’ in place of the name of the applicant; and

   (c)a closed court order pursuant to s 30 of the Open Courts Act in relation to the hearing of the application for leave to appeal and of the Board’s application for confidentiality and suppression orders.

The parties’ submissions

1. In its written submissions the Board accepted that orders under ss 17 and 30 of the Open Courts Act can only be made when necessary — it is not sufficient that the orders be convenient, reasonable or sensible.[14] It further accepted that the word ‘necessary’ imposes a high standard of satisfaction, and that an order will not be ‘necessary’ where some lesser restriction could achieve the purposes sought to be achieved.[15] It also accepted that orders providing for the non-publication of reasons of a court are not to be lightly made, and that applications of this nature have previously been refused on the grounds that judgments can be edited so that information which needs to be protected is not disclosed.[16]

   [14]Citing R v QPX [2014] VSC 211, [15] (Bongiorno JA).

   [15]Citing R v Brady (2015) 252 A Crim R 50, 60 [59] (Hollingworth J); [2015] VSC 246; Napier v Treasury Wine Estates Ltd [2020] VSC 765, [26] (Nichols J); WEQ v Medical Board of Australia (2021) 69 VR 1, 15–16 [60]–[67] (Kyrou and McLeish JJA); [2021] VSCA 343.

   [16]Citing LHRC v Deputy Commissioner of Taxation [No 4] (2015) 326 ALR 150, 154–5 [16]–‍[17] (Perry J); [2015] FCA 70; WEQ v Medical Board of Australia (2021) 69 VR 1, 23–4 [94] (Kyrou and McLeish JJA); [2021] VSCA 343.

2. The Board submitted that in the present case the proceeding suppression orders and the closed court order, all of which fall under the Open Courts Act, should be made on the basis that they are necessary to prevent a real and substantial risk of prejudice to the proper administration of justice, which cannot be achieved by any other reasonably available means. The Board advanced two reasons in support of this submission:

   First, the [Open Courts Act] Orders are necessary to preserve the effect of the proceeding suppression order made by the Tribunal.

   Allowing publication of a report of a whole or part of this proceeding, or information derived from this proceeding, which might identify the applicant, his former partner, or his children, would undermine the effect of the Tribunal’s orders.

   Similarly, conducting a hearing in open court would enable an observer to receive a report of the whole or part of the Tribunal Proceeding, or information derived from it, which might enable the applicant (and hence ABC and their children) to be identified.

   Secondly, receipt of notifications and the assistance from witnesses are important mechanisms by which the Board becomes aware of issues that require investigation under the Health Practitioner Regulation National Law … In the absence of the [Open Courts Act] Orders, prospective notifiers in the position of the Family Court in this case (or other potential notifiers) might be deterred from making future notifications in respect of potential misconduct by registered health practitioners or cooperating with investigations.[17]

   [17]Citations omitted.

3. The Board submitted that this Court ‘can be satisfied that the orders are necessary to prevent a real and substantial risk of prejudice to the proper administration of justice’. It submitted that the rationale underlying the second reason, as set out above, ‘is broadly analogous to the rationale underlying the category of cases in which the identity of victims of specific crimes is protected’.

4. The Board accepted that the orders can only be made where there is no other reasonably available means to prevent the risk of prejudice, and that making a pseudonym order ‘might ordinarily suffice’. Here, however, it submitted that there was a unique combination of relevant distinctive factors that mean that WEQ (and thus ABC and their children) might be able to be identified even if a pseudonym order is made. It was that combination of facts that led the Board to seek proposed order 4.

5. WEQ did not file any submissions in response to the Board’s application. In the hearing, he said that he did not want suppression orders or confidentiality orders.

Disposition

1. Following consideration of the parties’ written and oral submissions, I have concluded that the following orders that I made on 17 April 2025 ought to remain in place:

   (a)the pseudonym order amending the title of the proceeding so as to use the pseudonym ‘WEQ’ in place of the name of the applicant; and

   (b)all documents filed in proceeding S EAPCI 2024 0155 shall remain confidential and not be available to inspect, other than by a party to this proceeding or their legal representatives.

2. Neither of these orders is an order to which the Open Courts Act applies.[18] As this Court observed in Secretary, Department of Justice and Regulation v Zhong [No 2], the Open Courts Act ‘is not concerned with orders concealing identity, nor with orders prohibiting or restricting access to court files’. As a consequence, that Act does not govern whether the orders sought by the Board should be made in the present case.[19]

   [18]See, for example, MSB v Chief Commissioner of Police (2018) 57 VR 360, 372 [48] (McLeish JA, Maxwell P and Almond AJA agreeing); [2018] VSCA 345 (‘MSB’); Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19, [3] (Santamaria, Ferguson and McLeish JJA) and the authorities there cited (‘Zhong’).

   [19]Zhong [2017] VSCA 19, [3] (Santamaria, Ferguson and McLeish JJA).

3. I made the pseudonym order pursuant to this Court’s inherent jurisdiction.[20] I made the confidentiality order pursuant to r 28.05(4) of the Rules, which confers a discretion on this Court to make such an order. Both decisions were made by reference to the importance of the principle of open justice: the starting point is that proceedings are titled using the names of the parties and the public has a right to inspect documents filed in this Court (subject to certain exceptions).

   [20]Zhong [2017] VSCA 19, [3] (Santamaria, Ferguson and McLeish JJA); MSB (2018) 57 VR 360, 372 [48] (McLeish JA, Maxwell P and Almond AJA agreeing); [2018] VSCA 345.

4. As Davies J explained in Re Japara Holdings Pty Ltd,[21] there are two requirements that should generally be met before an order restricting access to the court file will be made:

   (a)first, the material must be confidential — that is, not already subject to public disclosure;[22] and

   (b)secondly, that the party seeking the order — or, I would add, another person who would be affected by the disclosure of the material — would be seriously compromised or adversely affected if confidentiality was not retained.[23]

   [21][2010] VSC 361. Re Japara Holdings concerned r 28.05(2)(a), which was the predecessor provision to r 28.05(4). There is no reason to think that the principles applicable are any different.

   [22]Re Japara Holdings [2001] VSC 361, [7].

   [23]Re Japara Holdings [2001] VSC 361, [10].

5. However, in the context of divorce proceedings, it has also been held that the procedure of the Supreme Court ‘should be cognisant of the confidential nature of certain information on divorce files, and should be consistent with the approach taken in Federal courts’.[24] In my opinion that proposition extends to other proceedings that concern family law matters. Thus it is relevant to have regard to the fact that the proceedings in the Family Court concerning WEQ, ABC and their children form an important part of the background to this matter. Part XIVB of the Family Law Act1975 restricts publication of information concerning proceedings under that Act. And under r 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the court record in relation to proceedings under the Family Law Act is not open for public inspection — rather, only a limited set of persons are permitted to search and inspect the court record. That is, family law proceedings involve a greater degree of confidentiality than proceedings in this Court.

   [24]Re Proceeding 291 of 1944 [2006] VSC 50, [18] (Whelan J).

6. In the present case I consider that it is appropriate that the pseudonym order and order under r 28.05(4) contained in my interim order remain in effect. This is because the material filed in this proceeding is confidential and because I consider that ABC and her children would be adversely affected if confidentiality was not retained. ABC’s, and her children’s, privacy and their rights under the Family Law Act not to be identified in relation to the Family Court proceedings would likely be compromised, because the materials on the file identify WEQ by name and this would then enable identification of ABC and her children.

7. However, I do not consider that proposed orders 3, 4, 5, 6, 7, or 8 should be made. These proposed orders were all directed to the publication of any report of this proceeding, or information derived from this proceeding, that might enable WEQ, ABC or ABC’s children to be identified. They were of great breadth, and were expressed to operate until 2029. However, I do not consider these proposed orders to be necessary. I indicated to the parties that I would provide them with a copy of these reasons, and an opportunity to make submissions about whether any part of the reasons should be redacted, before making the reasons publicly available. The Medical Board accepted at the hearing that this would be sufficient to achieve the necessary level of confidentiality. Given that, and given that a pseudonym order has been made, orders 3–‍8 are not necessary. As a consequence it is also not necessary to make proposed order 11, which sets out exceptions to proposed orders 3–8.

8. Proposed order 10(b) was an order that the Court provide its written reasons to the parties and provide 14 days within which the parties could seek redaction of the reasons. I did not consider it necessary or appropriate to make an order directed to ‘the Court’. However, in accordance with the spirit of proposed order 10(b), and as mentioned above, I told the parties that I would provide them with a copy of my reasons and receive submissions about whether the reasons disclose any information that might enable WEQ, ABC or ABC’s children to be identified, and whether any part of the reasons ought to be redacted prior to publication. Nor is it necessary or appropriate to make an order in the terms of order 10(a). That is particularly so given that this Court’s reasons in WEQ v Medical Board[25] have been published, and my reasons contain nothing that is not already in the public domain as a consequence of those reasons.

   [25](2021) 69 VR 1; [2021] VSCA 34.

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