WEQ v Medical Board of Australia
[2021] VSCA 343
•8 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0068
| WEQ (a pseudonym) | Applicant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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| JUDGES: | KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 November 2021 |
| DATE OF JUDGMENT: | 8 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 343 |
| JUDGMENT APPEALED FROM: | [2021] VCAT 530R (Judge Marks) |
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OPEN COURTS – Proceeding suppression order – Medical practitioner – Disciplinary proceeding in Victorian Civil and Administrative Tribunal – Referral to regulator by Family Court – Materials in Family Court proceeding released to regulator on condition that confidentiality orders sought in disciplinary proceeding – Statutory prohibition against disseminating accounts of Family Court proceedings identifying participants – Proceeding suppression order in Tribunal suppressing identity of participants in Family Court proceeding, family members, and regulator’s witnesses – Lifetime duration – Whether order necessary in interests of justice – Whether order necessary to prevent substantial risk of prejudice to proper administration of justice – Whether order based on sufficient credible information – Whether scope of order confined to what is necessary to achieve purpose – Order overly broad – Unnecessary to duplicate Family Court suppression regime – Importance of open justice in disciplinary proceedings – Insufficient credible information – Lew v Priester[No 2] (2012) 35 VR 216, considered – Open Courts Act 2013 ss 4, 12, 14, 16, 17, 18 – Family Court Act 1975 (Cth) s 121 – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr J P Stoller | Bebbington Lawyers |
KYROU JA
McLEISH JA:
The applicant is a registered medical practitioner. The respondent, the responsible regulatory body, has commenced disciplinary proceedings against him in the Victorian Civil and Administrative Tribunal.
Those proceedings relate to allegations which emerged in proceedings in the Family Court involving the applicant and his former wife. Consent orders made in the Family Court authorised the respondent to use materials from the Family Court proceeding, including affidavits and transcripts of evidence, in later disciplinary proceedings on condition that the respondent sought confidentiality orders in those proceedings to prevent the identification of the applicant, his former wife, and their children.
Once disciplinary proceedings commenced, the respondent asked the Tribunal to make a broad suite of confidentiality orders. Those orders sought to prevent the identification not only of the applicant, his former wife, and their children, but also the respondent’s witnesses in the disciplinary proceeding and all of the witnesses in the Family Court proceeding. On its own motion, the Tribunal made confidentiality orders that were broader still.
The applicant unsuccessfully sought to have the confidentiality orders revoked. He now seeks leave to appeal against the Tribunal’s decision not to revoke the confidentiality orders, and to reject various other applications made by him on the same occasion.
For the reasons that follow, the application for leave to appeal will be granted, and the appeal allowed, in respect of the confidentiality orders. Leave to appeal will be refused in respect of the remaining matters.
Interim orders
In this Court, the respondent filed applications seeking interim confidentiality orders in narrower terms, namely:
(a) an order restricting access to the Court’s file in this proceeding;
(b) a proceeding suppression order pursuant to s 17 of the Open Courts Act 2013 (‘the Act’) prohibiting the disclosure of a report of, or any information derived from, this proceeding which might identify the applicant, his former wife, or their children; and
(c) a closed court order pursuant to s 30 of the Act.
At the hearing, the Court made those orders pending the determination of the present application, as well as a pseudonym order in respect of the applicant and the respondent.[1] The orders were made on the sole basis that doing so was necessary to preserve part of the subject matter of the application for leave to appeal — namely, the Tribunal’s confidentiality orders — pending the outcome of that application, and any appeal.[2]
[1]It will be seen that the Court has now determined not to use a pseudonym in place of the name of the respondent. The pseudonym order in respect of the respondent was made in case identifying the respondent might indirectly identify the applicant. The Court considers that the reasons will not identify the applicant in any event.
[2]The Act ss 18(1)(a), 30(2)(a).
Background
Family Court proceeding
In 2015, the applicant’s former wife brought a proceeding against him in the Family Court, concerning the parenting arrangements for their children. The proceeding was conducted in open court.
On 1 February 2018, the Family Court made orders in that proceeding, and delivered reasons. It elected not to publish those reasons, in order to protect the parties and (in particular) their children from ‘humiliation and embarrassment’.[3]
[3]No pseudonyms, however, were applied to the reasons for judgment on the Court’s file.
In the proceeding, two relevant matters had emerged. First, the applicant was alleged to have provided misleading information in the context of donating sperm for fertility treatment purposes. Secondly, the Family Court found that the applicant had communicated with his former wife’s treating specialist while posing as someone who was now treating her, and had requested her clinical records and other confidential medical information.
The Family Court foreshadowed referring its reasons along with evidence relevant to these two matters to the Australian Health Practitioner Regulation Agency (‘AHPRA’).
Disciplinary investigation
On 5 March 2018, the Family Court made the foreshadowed referral, and provided the relevant materials to AHPRA on behalf of the respondent. On 6 April 2018, the respondent commenced an investigation into the applicant, pursuant to its statutory powers.[4]
Consent orders
[4]Section 160 of the Health Practitioner Regulation National Law (Victoria) (‘National Law’), applicable by virtue of Health Practitioner Regulation National Law (Victoria) Act 2009 s 4.
AHPRA applied to the Family Court for permission for the respondent to use the materials already provided to it by the Court, as well as the release of some further relevant materials.
On 8 November 2019, the Court made orders by consent.[5] The orders released the further materials sought, and permitted the use by AHPRA and the respondent of all the materials provided by the Court in performance of the respondent’s statutory functions in respect of any disciplinary investigations or hearings into the applicant’s conduct.[6] By permitting the use of these materials in this way, the Court engaged an exception to a general statutory prohibition against the dissemination of an account of any part of a family law proceeding identifying a party, their relatives or associates, or witnesses.[7]
[5]The applicant now disputes that he consented to each of the orders, but nothing turns on this for present purposes.
[6]An order to like effect was made permitting disclosure of the same materials to the Victorian Assisted Reproductive Treatment Authority, the state regulator in respect of fertility clinics: see Assisted Reproductive Treatment Act 2008 pt 10.
[7]Family Law Act 1975 (Cth) s 121(1). The order permitting the use of these materials was made pursuant to s 121(9)(d), which exempts from the s 121(1) prohibition any dissemination pursuant to the direction of the Court: see further [73] below.
The order permitting use of the materials by the respondent in this way was subject to a condition. It obliged the respondent, in any disciplinary proceeding, to take all reasonable steps to preserve the anonymity of the applicant, his former wife and their children. Reasonable steps were described to include applying for closed court, suppression, and non-publication orders. It was stipulated that any suppression order application be made by ‘reference to the criteria set out’ in s 121(3) of the Family Law Act 1975 (Cth).
The reference to s 121(3) is somewhat enigmatic, but appears to suggest the types of particulars it may be thought necessary to suppress in order to ensure that the applicant and his former wife and children are not identified. Section 121(3) is a deeming provision. Rather than setting down any ‘criteria’, it identifies circumstances in which an account of family law proceedings will be taken to identify a person for the purposes of sub-s (1). This includes where an account contains particulars sufficient to identify a person to a member of the public (or a member of the section of the public to whom the account is disseminated) such as the person’s name, title, address, occupation, profession, physical appearance, or relationship to an identified other person.
The consent orders also obliged the respondent to notify the applicant’s former wife if disciplinary proceedings against the applicant were commenced, and to notify the Registrar of the Family Court if the respondent failed to obtain any of the confidentiality orders it sought in accordance with its obligations under the consent orders.
Tribunal proceeding
On 27 February 2020, the respondent decided to refer the applicant to the Tribunal, on the basis that it reasonably believed that the applicant had behaved in a way that constituted professional misconduct or unprofessional conduct.[8] On 30 June 2020, the respondent filed its referral application with the Tribunal.
[8]National Law s 193(1)(a)(i) and definitions of ‘professional misconduct’ and ‘unprofessional conduct’ in s 5.
The application enclosed a notice of allegations. The respondent alleged that the applicant engaged in professional misconduct or unprofessional conduct by:
(d) providing information to fertility clinics which he knew or ought reasonably to have known was false or misleading; and
(e) improperly requesting clinical records and information about his former wife from her former treating specialist, in contravention of his professional and ethical obligations as a medical practitioner.
The application also enclosed a letter dated 30 June 2020 from the respondent’s lawyers to the Principal Registrar of the Tribunal. That letter described the Family Court proceeding, set out the relevant consent orders, and invited the Tribunal to make a suite of confidentiality orders, including an order limiting inspection of the file, a proceeding suppression order, and a closed tribunal order.
The orders sought went beyond the literal terms of the obligation under the consent orders in one key respect. The consent orders obliged the respondent to seek a proceeding suppression order that would prevent the identification of the applicant, his former wife and their children. But the respondent sought a proceeding suppression order preventing, in addition, the identification of the respondent’s witnesses in the disciplinary proceeding, and any witnesses in the Family Court proceeding.
Despite the width of the proceeding suppression order sought, the letter justified the order only on the basis of the necessity of preserving the privacy of the applicant’s former wife and their children. Preventing their identification (either directly, or by reference to the applicant) was said to be necessary in the interests of justice as follows:
It is in the interests of justice to protect the privacy of persons, particularly [the applicant’s former wife] and the children, in circumstances where the referral contains highly personal, sensitive and confidential information relating to them, that in other circumstances would usually be prohibited from being publicly available due to restrictions on publication contained within the Family Law Act.[9]
Further, publication of their identities is likely to cause undue stress and embarrassment. Protecting the privacy of vulnerable persons, including children, is essential if the [respondent] is to ensure that professional conduct issues continue to be reported to it and be properly investigated.
[9]This is an evident reference to Family Law Act s 121(1).
The ‘invitation’ to the Tribunal to make a proceeding suppression order, on its own motion, appears to have been based on the power of the Tribunal to make such an order if the order is necessary in the interests of justice: the Act s 18(1)(f)(ii).[10]
The confidentiality orders
[10]See also the Act s 19(1)(a).
On 1 July 2020, the Tribunal, on its own motion, and without inviting submissions from the applicant, made:
(f) a pseudonym order in respect of the applicant;[11]
[11]This was said to be made pursuant to s 17 of the Act, although that provision relates only to proceeding suppression orders. Pseudonym orders are neither proceeding suppression orders nor governed by the Act: see MSB (a pseudonym) v Chief Commissioner of Police (2018) 57 VR 360, 372 [48] (McLeish JA, Maxwell P agreeing at 361 [1], Almond AJA agreeing at 374 [58]); Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19, [3] (Santamaria, Ferguson and McLeish JJA).
(g) a proceeding suppression order prohibiting reporting of any part of the proceeding or information derived from the proceeding that might enable the applicant, his former wife, their children, other family members, witnesses in the Family Court proceeding or the respondent’s witnesses in the disciplinary proceeding to be identified. This order was expressed to operate until the death of all of the persons falling within those categories; and
(h) a direction restricting access to the Tribunal file[12]
(collectively, the ‘confidentiality orders’).
[12]Victorian Civil and Administrative Tribunal Act 1998 s 146(4)(b).
The question whether to make a closed tribunal order was left for a later hearing.
In making these orders without inviting submissions from the applicant, it may be that the Tribunal assumed that the applicant would favour the making of the orders. After all, the obligation to seek confidentiality orders was contained in consent orders made in a proceeding to which the applicant was a party. Further, the applicant was on one view a beneficiary of the orders sought by the respondent, in that his identity would be suppressed, which might ordinarily be thought to be in the interests of a person the subject of disciplinary proceedings.
For a variety of reasons, however, the applicant wishes to be identified and for the disciplinary proceedings to be publicised.
Before turning to the Tribunal’s reasons for making these confidentiality orders, it is necessary to observe that the orders made by the Tribunal were broader than the orders the respondent invited the Tribunal to make, in three respects.
First, the Tribunal also made a pseudonym order in respect of the applicant.
Secondly, the Tribunal made a proceeding suppression order which prevented the identification not only of the applicant, his former wife, their children, the respondent’s witnesses in the disciplinary proceeding and the witnesses in the Family Court proceeding, but also ‘other family members’.
Thirdly, the Tribunal described the proceeding suppression order as lasting ‘until the … death of all of the people’ described in the proceeding suppression order.
As required by the Act, a brief statement of reasons was provided in respect of the proceeding suppression order.[13] The Tribunal stated that this was a case in which it was ‘necessary to override or displace the principle of open justice and the free communication and disclosure of information’[14] by making the proceeding suppression order, explaining that:
The order is made on the grounds that it is in the interests of justice to de‑identify the [applicant] and to protect the privacy of his former partner, his children and other family members given the terms of orders made by the Family Court of Australia on 8 November 2019 and section 121(3) of the Family Law Act 1975 (Cth). For the same reasons it is in the interests of justice to prohibit the publication of the identities of any witnesses in the Family Law [sic] proceedings …
In respect of witnesses who may be called by the [respondent], it is in the interests of justice to protect the privacy of those persons as the investigation of notifications and the assistance from witnesses in these types of cases are an important mechanism by which the [respondent] becomes aware of issues of concern ... Protecting the privacy of [those] witnesses is essential if the [respondent] is to ensure that professional conduct issues can be properly investigated when they arise.
[13]See [67] below; the Act 14A.
[14]This is a condition prescribed by s 4(2); see [62] below.
Two purposes of the proceeding suppression order were identified, namely:[15]
(i) to ‘ensure compliance’ with the consent orders, and with s 121(3) of the Family Law Act;[16] and
(j) to ‘otherwise avoid the unreasonable invasion of the privacy’ of the applicant, his former wife, their children, other family members, and relevant witnesses in the Family Court and Tribunal proceedings.
[15]Order of Senior Member Dea in Medical Board of Australia v WEQ (Victorian Civil and Administrative Tribunal, Z535/2020, 1 July 2020) [1]–[5].
[16]It is possible that, by this, the Tribunal meant that it was necessary to facilitate the purpose of the consent orders, as the respondent had already complied with those orders by seeking the confidentiality orders. Nothing further was required to ensure compliance with the terms of the consent orders. Further, as mentioned above, s 121(3) is a deeming provision and not a provision with which it is necessary (or possible) to ‘comply’. This appears to have been intended as a reference to s 121(1).
The duration of the proceeding suppression order was determined on the basis that the Tribunal was satisfied that it was ‘necessary in the interests of justice for the specified people’s identity to be protected permanently’.
On 23 July 2020 there was a directions hearing. Over the applicant’s objection, the Tribunal made a closed tribunal order, but only in respect of that directions hearing.[17] On 6 November 2020, there was a further directions hearing. The Tribunal again made a closed tribunal order in respect of that directions hearing.
The revocation application
[17]The Act s 30.
Shortly afterward, the applicant applied for the revocation of some of the confidentiality orders. By a letter to the Principal Registrar of the Tribunal dated 16 November 2020, he sought revocation of the proceeding suppression order and the ‘closed courts order’. The reference to the ‘closed courts order’ was unclear as no closed tribunal order had yet been made in respect of the proceeding generally, and the closed tribunal orders in respect of the individual directions hearings had each expired. There was, therefore, no closed tribunal order to be revoked. The applicant did not object to the order restricting access to the Tribunal file or to the pseudonym order.
The focus of the applicant’s application for revocation was therefore the proceeding suppression order. He sought its revocation on grounds including that the Tribunal:
(k) had not provided adequate reasons justifying the proceeding suppression order;
(l) appeared to have given excessive weight to what it understood to be the interests of the applicant’s children; and
(m) had misunderstood the consent orders as requiring that the confidentiality orders be made, when all that was required was that they be sought.
The applicant also sought some 19 other orders, including an order requiring the respondent to specify the final orders that it seeks against him in the Tribunal proceeding.[18]
[18]The respondent’s written materials did not identify the substantive final orders that it would seek, but instead identified a number of remedies available to the Tribunal should it find the allegations to be made out. These ranged from a caution or reprimand to the cancellation of the applicant’s registration.
On 30 March 2021, there was a preliminary hearing before a Vice President of the Tribunal. She heard the applicant’s application for the orders described in his letter, as well as various applications made during the hearing, including that she recuse herself on grounds of apprehended bias. The Tribunal made a closed tribunal order in respect of that hearing and the remainder of the proceeding.
Tribunal’s decision
On 25 May 2021, the Tribunal made orders and delivered its reasons.[19] The Tribunal decided not to publish its reasons, on the basis that, even in redacted form, they might disclose the matters the subject of the confidentiality orders.[20]
[19]Medical Board of Australia v WEQ [2021] VCAT 530R (‘Reasons’).
[20]Medical Board of Australia v WEQ [No 2] (Victorian Civil and Administrative Tribunal, Judge Marks, 29 July 2021).
Five aspects of the Tribunal’s decisions are presently relevant.
First, the Tribunal rejected the application for the revocation of the confidentiality orders. Expressly agreeing with the reasoning of the Senior Member who made those orders, the Tribunal was satisfied that they should continue. It went on:
The Family Court has made orders suppressing matters relating [to] that case; it referred various aspects to AHPRA and set out a clear basis where application is required to be made to the Family Court in relation to any further evidence that may be released; the [respondent] seeks to rely on evidence from the Family Court proceeding in this case; it seems that [the applicant] may also seek to rely on evidence from the Family Court if he considers that the [respondent] does not submit all that is relevant.[21]
[21]Reasons [69].
The Vice President constituting the Tribunal added:
I am satisfied that the suppression orders are necessary in the interests of justice: s 18(1)(f)(ii) of the [Act]. They 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.[22]
[22]Ibid [71]; this is a reference to the ground provided by the Act s 18(1)(a).
Largely because the confidentiality orders would remain in place, the Tribunal also refused applications for orders:
(n) requiring the publication of the name of all the respondent’s witnesses, investigators and constituting members;
(o) requiring the publication and dissemination to the media of the Family Court order and transcripts, as well as all the documents and transcripts relating to the disciplinary proceeding;
(p) for an open Tribunal hearing, with media present; and
(q) permitting the applicant to audio-visually record all hearings at the Tribunal for later use in ‘reconcil[ing] his relationship with his children’.
To the contrary, the Tribunal made a closed tribunal order for the whole proceeding.
Secondly, the Vice President constituting the Tribunal rejected the application that she recuse herself on grounds of apprehended bias. There were three bases for that application: first, that she interrupted the applicant’s ‘flow’ by asking questions or otherwise intervening during the hearing so as to advantage the respondent; secondly, that the Vice President belonged to the Women Barristers Association, which was said to indicate a fixed belief in feminism, amounting to a form of ‘cultural Marxism’; and thirdly, that she prevented the applicant from adducing certain evidence. The Tribunal found there to be no substance in any of these complaints: the matters were either irrelevant or reflected conventional case management. In any case, the matters did not rise to the level of reasonable apprehension of bias, either individually or cumulatively.[23]
[23]Johnson v Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (‘Johnson’).
Thirdly, the Tribunal declined to order the respondent to specify the orders it would seek against the applicant if the Tribunal were to find the respondent’s allegations established, and to constitute professional misconduct or unprofessional conduct. It accepted the respondent’s submission that it was premature to require it to do so, given that the orders ultimately sought would depend on findings of fact yet to be made, and the applicant’s attitude to any such findings.
Fourthly, the Tribunal ordered that the applicant not seek to have any witness summons issued under s 104 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) without leave and that, in seeking leave, he specify the issue or issues to which the summons related. This was because the applicant had previously sought to have a large number of witness summonses issued, which raised matters not relevant to the proceeding.[24]
[24]Reasons [26]–[28].
Fifthly, the Tribunal ordered that the proceeding be transcribed, and the parties bear the costs of transcription equally.
Proposed grounds of appeal
The applicant advances seven proposed grounds of appeal, each of which is accompanied by voluminous particulars. In large part, the proposed grounds of appeal serve as the purported vehicle for wide-ranging complaints about the conduct and competence of:
(r) the applicant’s former lawyers;
(s) the applicant’s insurer;
(t) the respondent;
(u) the respondent’s lawyers;
(v) the Family Court; and
(w) the Tribunal, in a general sense, unrelated to the particular decision at issue.
However, the applicant, appropriately, did not pursue these complaints (and the corresponding grounds and particulars) in his oral submissions, accepting that the application for leave to appeal was not the appropriate forum in which to do so. We therefore say no more about these matters.
The applicant’s ultimate case was confined to the following five submissions:
(x) that the Tribunal erred by failing to revoke the confidentiality orders, in particular the proceeding suppression order;
(y) that the Vice President erred by failing to recuse herself for apprehended bias;
(z) that the Tribunal erred by requiring that he meet half the cost of the transcription of the hearings;
(aa) that the Tribunal erred by requiring that he obtain leave before seeking the issue of any witness summons; and
(bb) that the Tribunal failed to afford him procedural fairness, in particular, by refusing to order that the respondent specify the final orders it would seek should it establish the allegations in issue.
We address these submissions in turn.
Confidentiality orders
Parties’ submissions
The applicant’s focus before us was, as it was before the Tribunal, the proceeding suppression order. The applicant contended that the Tribunal erred in refusing to revoke the proceeding suppression order because:
(cc) it rested on the false premise that the consent orders or the Family Law Act required that they be made;
(dd) the ground for making the proceeding suppression order was never adequately articulated, and the matters relied on by the respondent neither fell within nor resembled the established grounds for making a suppression order in the interests of justice;
(ee) in any event, the respondent failed to discharge its burden of showing that the proceeding suppression order was necessary, and that its extraordinary scope extended no further than necessary to achieve its purpose. The applicant pointed in particular to:
(i) the temporal duration of the proceeding suppression order, extending for the lifetimes of all the persons specified in the order;
(ii) the breadth of the proceeding suppression order, extending not only to the applicant, his former wife and their children, but also to unspecified ‘other family members’, the respondent’s witnesses in the disciplinary proceeding and all of the witnesses in the Family Court proceeding;
(iii) the making of a proceeding suppression order of such breadth in addition to the pseudonym order and the order restricting access to the Tribunal file; and
(ff) to the extent the proceeding suppression order was designed to prevent embarrassment to his children and former wife, the public interest in open justice prevails over any private interest in avoiding embarrassment, and the public interest in open justice is even greater where, as here, the respondent is fulfilling a public function.
As an alternative available to the Tribunal, the applicant pointed to the course taken by the Full Court of the Family Court in dismissing his appeal against the Family Court’s substantive decision in the proceeding between him and his former wife. The Full Court hearing occurred in open court, and the Full Court published its reasons for decision using pseudonyms for the applicant and other participants in the proceeding.[25] Those reasons remain publicly accessible. The applicant submitted that a similar regime could be applied to the disciplinary proceeding.
[25]In the interests of maintaining the anonymity of the parties to the Family Court proceedings, we do not publish the name or citation of the Full Court’s decision. That decision did not address in detail the matters which formed the basis of the allegations now made by the respondent against the applicant.
The respondent accepted that aspects of the proceeding suppression order made by the Tribunal were very broad. In particular, the respondent did not contend that it was necessary that the order apply to the respondent’s witnesses in the disciplinary proceeding or to ‘other family members’. The respondent also accepted that the temporal scope of the proceeding suppression order was considerable. It did not contend that it was necessary, in order adequately to serve the purpose of protecting the applicant’s children from unnecessary humiliation and mental harm, for the order to extend beyond the time the youngest child reaches adulthood.[26]
[26]The respondent’s submission went no higher than suggesting that the duration of the order might be desirable (as opposed to necessary) in that it would eliminate a possibility of ‘grief and embarrassment’ that might persist for some time after the children had reached adulthood.
The respondent nonetheless maintained that a proceeding suppression order remained necessary despite a pseudonym order having been made. There was said to be a risk that, even with the use of pseudonyms, an account of the disciplinary proceeding would reveal information sufficient to allow the identification of the applicant, and through him, his former wife and their children. The identification of the children would, in the context of the first allegation in the proceeding, expose them to humiliation, derision and ridicule and, adopting language used by the trial judge in the Family Court, ‘unwelcome and unpleasant attention’. The identification of the former wife would, against the backdrop of the second allegation in the disciplinary proceeding, reveal her private medical information — at a minimum, the fact that she had consulted a medical specialist.
Constitutional matter
On the day before the hearing in this Court, the applicant filed a notice of constitutional matter under s 78B of the Judiciary Act 1903 (Cth), contending that s 121 of the Family Law Act was invalid by reason of the implied freedom of political communication. The notice recited matters canvassed in the Family Court proceeding which the applicant wishes to ventilate in public.
The Court decided that the constitutional matter, if it arose at all in the application for leave to appeal, was severable from the remainder of the application. It therefore heard full argument on that application, on the assumption that s 121 is constitutionally valid, while a reasonable time elapsed for the Attorneys-General to consider the question of intervention.[27] In the event, it is not necessary to address the constitutional argument in this proceeding, as explained later in these reasons.
Principles
[27]Judiciary Act 1903 (Cth) ss 78B(1) and 78(2)(c); see also, as to the interim orders made in this Court, s 78B(5).
The principle of open justice is a fundamental rule of the common law,[28] and an essential part of the functioning of the Australian justice system.[29] Its purpose is to expose proceedings to ‘public and professional scrutiny’[30] and inform the public how judicial (or administrative) power is exercised, and on what evidential basis. This enhances accountability,[31] and assists in maintaining public confidence in the integrity and independence of courts and tribunals.[32]
[28]See John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7 (McHugh JA, Glass JA agreeing at 467) (‘John Fairfax’); Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J) (‘Russell’); Dickason v Dickason (1913) 17 CLR 50, 51 (Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ each agreeing at 51).
[29]See K-Generation Pty Ltd v Liquor Licensing Court (SA) (2009) 237 CLR 501, 512 [10] (French CJ).
[30]See Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, 60 [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[31]Dye v Commonwealth Securities Ltd [No 2] [2010] FCAFC 118, [121] (Marshall, Rares and Flick JJ).
[32]Russell (1976) 134 CLR 495, 520 (Gibbs J).
An aspect of the principle of open justice is that what occurs in open court (or an open tribunal) may be publicised. Persons present in an open court or tribunal may disseminate to others who were not present fair and accurate reports of the proceedings,[33] including the names of the parties and witnesses and the evidence given.[34] It has been said that proceedings must be ‘exposed in their entirety to the cathartic glare of publicity’, subject only to limited exceptions ‘sparingly allowed’.[35]
[33]John Fairfax (1986) 5 NSWLR 465, 476–7 (McHugh JA).
[34]Hogan v Hinch (2011) 243 CLR 506, 532 [22] (French CJ).
[35]David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294, 300 (Street CJ) (‘David Syme’), quoting R v Brady (New South Wales Court of Criminal Appeal, Street CJ, 29 July 1977).
In disciplinary or criminal proceedings, this aspect of the principle of open justice assumes particular importance as there is a special public interest in the community knowing the outcome of such proceedings.[36] The publicity of disciplinary proceedings assists in protecting the public, signals to the relevant profession what is and is not acceptable professional conduct, and serves the purposes of specific and general deterrence.[37]
[36]Chaarani v DPP (Cth) [2018] VSCA 299, [41] (Maxwell P, Beach and Hargrave JJA); Council of the Law Society of New South Wales v Karimjee [2021] NSWCA 179, [11] (Meagher, Payne and McCallum JJA) (‘Karimjee’).
[37]Psychology Board of Australiav D [2010] VSC 375, [23], [29] (Mukhtar AsJ).
The Act recognises and reinforces the principle of open justice,[38] in respect of the Tribunal, as well as the courts. It provides for the primacy of the principle[39] and authorises departure from it only in specified circumstances. Relevantly for present purposes, s 4(2) provides that a court or tribunal ‘is only to make a suppression order if satisfied that the specific circumstances of a case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information’.
[38]The Act s 1(aa).
[39]Ibid ss 4(1), 28(1).
It is a particular type of suppression order, a proceeding suppression order, that is now in issue. A proceeding suppression order is defined as an order prohibiting or restricting the disclosure of a report of all or part of a proceeding, or any information derived from the proceeding. The Act specifies the circumstances in which it is permissible to depart from the principle by making such an order.[40]
[40]Ibid s 18.
First, the power to make a proceeding suppression order depends on the court or tribunal being satisfied that the order is ‘necessary’ to achieve at least one of a number of enumerated purposes set out in s 18 of the Act.[41] Necessity is a stringent standard, requiring a high degree of satisfaction; it is not enough that it would be reasonable or desirable to make an order for one of the purposes identified in s 18.[42]
[41]See also s 4(2).
[42]AB v CD (2019) 279 A Crim R 357, 368–9 [68]–[69] (Ferguson CJ, Beach and McLeish JJA); [2019] VSCA 28.
Secondly, the requisite standard is to be satisfied on the basis of evidence or ‘sufficient credible information’ showing that the relevant ground is made out: s 14. This is a substantive requirement applicable even when an application is consented to or not opposed. By reference to such information, the court or tribunal must carefully ‘scrutinise the justification for, and the nature and scope of, the proposed order’.[43]
[43]See PQR v Secretary, Department of Justice and Regulation (2017) 53 VR 45, 65 [54] (Bell J).
Thirdly, the duration and scope of any proceeding suppression order must not exceed what is necessary to achieve its purpose. Any proceeding suppression order must not exceed the duration ‘reasonably necessary’ to achieve the purpose for which it is made: s 12(4). Similarly, any order must not apply to (and so restrict the disclosure of) any more information than necessary to achieve the relevant purpose: s 13(1)(b). The information to which the order does apply must be specified with sufficient particularity so that the scope of the order is readily apparent from its terms: s 13(1)(c).
Fourthly, the court or tribunal that makes a proceeding suppression order (other than an interim order) must provide reasons setting out the ground(s) relied on, and justifying the duration and scope of the order: s 14A(1).
Consideration
In the present case, the Tribunal justified its order on the basis that it was necessary for ‘any other reason in the interests of justice’, a broadly framed ground available only to the Tribunal: s 18(1)(f)(ii).[44] In providing the Tribunal this broad ground, Parliament’s apparent intent was to make allowance for the broad range of applications involving confidential ‘health and other personal information’ on which the Tribunal adjudicates, including in its guardianship and human rights lists.[45]
[44]The provision reflects former s 101(4)(b) of the VCAT Act, which the Act repealed.
[45]Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2418 (Robert Clark, Attorney-General). Section 18(1)(f)(i) refers specifically to avoiding the publication of confidential information.
At common law, the principle of open justice is not displaced simply because a suppression order would spare a party (and their family members or associates) embarrassment, shame or humiliation.[46] The possibility of reputational damage or embarrassment to a party (and to their associates) is an incident of the principle of open justice and not usually a reason to depart from it by making a suppression order.[47]
[46]See, eg, Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 2 VR 672, 679 [56] (Beach J); Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267, 295 [93] (Hedigan J). Embarrassment and distress, however, are relevant in respect of child witnesses in criminal proceedings or complainants and witnesses in sexual offence or family violence proceedings: the Act s 18(1)(d) and (e).
[47]John Fairfax (1991) 26 NSWLR 131, 142–3 (Kirby P). As to family members of litigants, see, eg, Ashton v Pratt [2011] NSWSC 1092, [11] (Brereton J).
Despite the breadth of the ‘interests of justice’ ground, there is no reason to think that it operates so as to widen the common law in this respect. Something more is required than the avoidance of embarrassment or reputational harm.[48] (We leave to one side the specific power of the Tribunal under s 18(1)(f)(i) to make a proceeding suppression order where necessary to avoid the publication of confidential information, upon which reliance has not been placed.)
[48]See, eg, Victorian Legal Services Commissioner v Geron [2016] VCAT 1753, [26] (‘Geron’).
In the context of disciplinary proceedings, the ‘interests of justice’ ground has been relied on by the Tribunal to suppress the identity of complainants or persons who have ‘notified’ the professional regulator of suspected misconduct,[49] and the identity and confidential information of patients or clients of practitioners subject to disciplinary proceedings.[50] However, recognising the enhanced public importance of the principle of open justice in disciplinary proceedings, the Tribunal has only rarely relied on this ground to suppress the identity of the person the subject of disciplinary proceedings, even when the allegations against that person are not ultimately sustained.[51] Such orders in the case of health practitioners have been described as ‘uncommon’.[52] On the occasions when such an order has been made, it has been because it was established that publicity would imperil the health and safety of the professional or their family.[53]
[49]Medical Board of Australia v Shetty [2014] VCAT 136; Geron [2016] VCAT 1753; Physiotherapy Board of Australia v Sette [2015] VCAT 932 (‘Sette’);
[50]See, eg, Medical Board of Australia v Ainsworth [2019] VCAT 734; Legal Services Commissioner v Brereton (Legal Practice) [2008] VCAT 1723, [11].
[51]Geron [2016] VCAT 1753, [25]–[27]; Medical Board of Australia v Handsjuk [2019] VCAT 876, [39], [43], [45].
[52]Medical Board of Australia v FVE [2018] VCAT 1029, [41] (‘FVE’).
[53]For risk to the health and safety of the professional, see FVE [2018] VCAT 1029, [44]–[45], [48]; and Medical Board of Australia v GMZ [2017] VCAT 902. For risk to family members, see Medical Practitioners Board of Victoria v D [2010] VCAT 52, [5].
Of course, the categories of case in which a proceeding suppression order may be needed in the interests of justice are not closed. The nature of the Tribunal’s jurisdiction is such that it may often hear evidence of an acutely sensitive nature which would make publication more than ordinarily invasive of a person’s privacy. This is one of two elements invoked under the ‘interests of justice ground’ in this case. The other element is the consent orders and the operation of s 121 of the Family Law Act .
Of those two elements, it is convenient to start by referring to s 121. It relevantly provides:
121Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
…
(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a)it contains any particulars of:
(i)the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii)the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
…
...
(9)The preceding provisions of this section do not apply to or in relation to:
…
(d)the publishing of a notice or report in pursuance of the direction of a court;
…
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
…
The consent orders were made in the context of this provision. Although it is not entirely clear, the condition imposed by the Family Court on release of the relevant materials to the respondent appears to have been intended to operate in aid of the prohibition on publication in s 121. In particular, persons who become aware, through the Tribunal proceeding, of material whose publication is prohibited by s 121 might disseminate that material without realising its provenance. In doing so, they would unwittingly contravene s 121 and undermine the protection it affords participants in family law proceedings. On one view, that might be thought sufficient to make it necessary to make an order ‘in the interests of justice’ in respect of the material in question.
However, the Tribunal did not rest its order on that basis. Nor could such a basis, on any view, justify suppression of essentially the entirety of the disciplinary proceeding, as distinct from those matters the publication of which might be contrary to s 121.
There are important limits to the scope of s 121. The section does not prohibit the disclosure of material which falls short of dissemination to at least a section of the public, which has been understood to require ‘widespread communication’ aimed at reaching a ‘wide audience’.[54] It also does not prohibit the dissemination of allegations aired in a Family Court proceeding which do not constitute an ‘account’ of those proceedings, being a narration, description, retelling or recital of something that has happened in the Family Court proceeding or something about them.[55] It also does not prohibit the dissemination of accounts that identity a person who is not a participant in a Family Court proceeding, nor accounts that identify a participant other than in that person’s capacity as a party, associated person or witness in a Family Court proceeding.
[54]Re Edelsten; ex parte Donnelly (1988) 18 FCR 434, 436–7 (Morling J); see also Ying v Song [2010] NSWSC 1500, [210] (Ward J).
[55]Hinchcliffev Commissioner of Australian Federal Police (2001) 118 FCR 308, 323–4 (Kenny J) (‘Hinchcliffe’).
At the same time, the fact that s 121 already operates to suppress publication of certain material strongly suggests that it is not ‘necessary’ for a proceeding suppression order to be made with the same effect, at least not in any sweeping fashion.
In Lew v Priester [No 2],[56] which involved a family trust dispute, the plaintiffs sought an order restricting publication of the proceeding to the extent that a prohibition on publication would apply under s 121 by virtue of matters having been raised in an earlier Family Court proceeding. The application was made under s 18 of the Supreme Court Act 1986. Section 19 of that Act contained grounds similar to those available under s 18(1) of the Act.[57]Davies J rejected the application. She stated, in terms equally applicable to an application before the Tribunal under the Act:
[T]he Court’s jurisdiction to make orders restricting publication of any proceeding is not founded in an equivalent provision to s 121 of the Family Law Act. Section 121 of the Family Law Act secures the purpose of protecting the confidentiality and privacy of the matrimonial proceedings ... Section 121 of the Family [Law] Act has no counterpart in ss 18 and 19 of the Supreme Court Act or at common law. Sections 18 and 19 of the Supreme Court Act and this Court’s inherent jurisdiction govern the making of non-publication orders in this proceeding. Hence there is a need to engage with the principles that apply in this Court. Reasons of comity or parity of rights may explain why the order is desired but those reasons do not address why the non-publication order is necessary within the terms of s 19 of the Supreme Court Act.[58]
[56](2012) 35 VR 216 (‘Lew’).
[57]Although s 19 did not contain an ‘interests of justice’ ground, it contained an ‘administration of justice’ ground in broader terms than the present s 18(1)(a) and a ‘public decency and morality’ ground not retained in the Act.
[58]Lew (2012) 35 VR 216, 222 [18]. See also John Fairfax Publications Pty Ltd; re MSK [2006] NSWCCA 386, [26] (Spigelman CJ, Basten JA and Hislop J agreeing at [38] and [39]: ‘It is unnecessary and, generally, would be inappropriate, for the Court to make an order for the purpose of serving the same policy objectives as the scheme for which Parliament has legislated’]).
Importantly, Davies J went on to explain that, if certain material sought to be relied on in the court proceeding attracted the prohibition in s 121, the need for a suppression order should be considered at that time, and in the light of that material, so that any order would not be wider than necessary:
[T]he necessity for an order is not made out by the fact that material which is confidential in the matrimonial proceedings is able to be published in this proceeding pursuant to the order of the Family Court made under s 121(9)(g) of the Family Law Act. The appropriate time for seeking a non-publication order to ensure the continued protection of s 121 of the Family [Law] Act is when, and to the extent that, such material is sought to be relied on in this proceeding so that the application can be considered in light of the particular material which founds the ‘necessity’ for the order and so that the order, if appropriate, will not go further than is necessary to secure the administration of justice.[59]
[59]Lew (2012) 35 VR 216, 222 [19].
It is important to observe that, while the allegations which underpin the present Tribunal proceeding emerged from the Family Court proceeding, they were not its central focus; they were relevant, to a modest degree, to the question of the applicant’s suitability as a parent. To publish the allegations shorn of any reference to the Family Court proceeding would not amount to an ‘account’ of any part of that
proceeding.[60] Nor would it identify any person as a party, associated person or witness to a Family Court proceeding. To the contrary, it appears that the allegations could accurately be described and adjudicated upon without any reference to the Family Court at all. On the other hand, as Davies J held in Lew, to the extent that the respondent seeks to rely on affidavit or transcript evidence from that proceeding, publication of that material may be in a different position.
[60]Hinchcliffe (2001) 118 FCR 308, 323–4 (Kenny J). Cf R v Hutchinson [No 3] [2018] NSWSC 1758, [8] (Hammill J), where there was very significant overlap with the subject matter of Family Court proceedings.
The Tribunal also relied, in refusing to revoke the proceeding suppression order, on s 18(1)(a) of the 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’.[61] For the reasons already given, s 121 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.
[61]See [43] and n 22 above.
These reasons in combination suffice to show that the proceeding suppression order made in the present case was not able to be justified by reference to the continued operation of s 121 of the Family Law Act. In brief, s 121 cannot justify orders exceeding its own scope and, at the same time, its existence undermines the necessity of orders that duplicate its own scope. Beyond the existence of the consent orders, no reason was advanced, or supported by evidence or other material produced, as to why it was necessary to bolster the operation of that provision with a very wide-ranging proceeding suppression order.[62] In any event, if that provision justifies a proceeding suppression order, the time for considering that matter is when specific material is sought to be relied on, the publication of which would constitute a breach of s 121.
[62]We do not discount the possibility that the respondent could produce material regarding the applicant’s history of seeking to publicly ventilate matters connected with the Family Court proceeding which bears on the need for the Tribunal to make suppression orders directed to sustaining the confidentiality of that proceeding.
In addition to relying on the position regarding the Family Court proceeding in declining to revoke the proceeding suppression order, the Tribunal also adopted the reasons of the Senior Member who first made the order. In that context, two further matters were relied on in the interests of justice: (a) the privacy of the applicant’s former wife, children and other family members ‘given the terms of the [consent orders] and section 121(3) [sic] of the Family Law Act’; and (b) the privacy of witnesses who assist the respondent in its investigations.[63]
[63]See [32] above.
Leaving aside the reliance placed on the consent orders and s 121, there is no doubt that privacy concerns may inform the ‘interests of justice’ ground in s 18(1)(f)(ii) of the Act. However, the original Tribunal’s reasons are infected by several errors.
First, as the extract just quoted from those reasons reveals, the question of the privacy of family members was approached through the prism of the need to comply with the Family Law Act and the consent orders. That was in error for the reasons already given, and also because the consent orders did not require suppression of the identity of any person; they only required the respondent to seek suppression. Given the effect of s 121, which is to prevent publication of an account of a Family Court proceeding which identifies persons in connection with that proceeding, there can have been no necessity to suppress the entire Tribunal proceeding.
Secondly, sparing family members from adverse publicity is ordinarily no warrant for suppressing the identity of a medical practitioner who is subject to disciplinary proceedings. Any embarrassment or hurt caused to family members by publication of the allegations against the practitioner is usually an acceptable incident of the disciplinary process, just as it is when (more serious) criminal allegations are tried. Here, there is potential for specific material to be published in the context of the Tribunal proceeding that might raise more substantial privacy concerns. That relates to the medical history of the applicant’s former wife, which might be canvassed in respect of one of the allegations; and the potential for psychological harm to the children, in respect of the other. Those matters are both confined in scope, and could conceivably form the basis for a much narrower proceeding suppression order if and when it becomes clearer what invasion of privacy might be likely and how serious the harm might be. They do not justify an order suppressing, in effect, the entire proceeding. (Again, it is not necessary to address the Tribunal’s specific power under s 18(1)(f)(i) to prevent the publication of confidential information, which would appear to be attracted at least in the case of the former wife’s medical history; but that power too would only warrant a narrowly based order.)
Thirdly, while the privacy of witnesses who notify and assist the respondent may well need to be protected where those witnesses are patients whose medical circumstances are exposed by making a complaint about a practitioner, that is not this case. The allegations against the applicant do not, on the material before us, directly involve his medical practice or his patients. It was the Family Court, not a potential witness, that notified the respondent of the allegations. In those circumstances, it is far from clear why the interests of justice require that the identity of any of the witnesses to be called by the respondent in the disciplinary proceeding, let alone all of them, be suppressed.
Fourthly, to the extent that the order is premised on any substantial privacy concerns or apprehension of psychological harm, on the present material those considerations are not so grave as to require the protection of the order to extend until all those whose identity is suppressed are deceased. Such a duration cannot be characterised as reasonably necessary to achieve the purpose of the order, as s 12(4) requires.
In these various respects, the Tribunal’s proceeding suppression order also went well beyond what was necessary in the interests of justice. It applied to significantly more information than was necessary to achieve its purpose, contrary to s 13(1)(b) of the Act. It was of a longer duration than reasonably necessary, contrary to s 12(4).
It is necessary to set the order aside and enable the respondent’s application for a proceeding suppression order to be determined by the Tribunal afresh, according to law and on the basis of evidence or sufficiently credible information satisfying s 14 of the Act.
Determining that application will have implications for, and will require consideration of, the Tribunal’s other confidentiality orders. It may be that pseudonym orders are no longer appropriate if any proceeding suppression order is tailored to that which it is necessary to suppress in the interests of justice. That will depend on whether narrower suppression orders are capable of independently achieving what is necessary in the interests of justice. Alternatively, it is possible that the Tribunal will decide that the nature of the material before it is such that the privacy of specific persons and the potential for them to suffer harm is such that their identities must be protected by both the use of pseudonyms and a suppression order. If so, the use of pseudonyms may mean that only very limited suppression of the substance of the proceeding (if any) remains necessary.
In the meantime, however, it is appropriate to maintain the pseudonym order, and to make an interim proceeding suppression order preventing identification of the applicant, his former wife, or their children, for a period sufficient to enable the matter to be considered further by the Tribunal.
Relatedly, the existence and scope of any pseudonym and/or proceeding suppression order may affect whether it remains necessary to maintain a closed tribunal order in respect of the entire proceeding. A closed tribunal order is subject to the strict necessity standard described above, in respect of the same enumerated grounds.[64] As a result, the requisite standard may no longer be attainable if a proceeding suppression order and/or a pseudonym order has already satisfied the purpose for which a closed tribunal order might otherwise be thought necessary.
[64]The Act ss 28(2), 30(2).
Likewise, in light of whatever confidentiality orders are ultimately made, the Tribunal will also need to consider whether it remains appropriate to again refrain from publishing reasons in this proceeding. In this regard, it may be observed that the obligation to provide adequate reasons for judgment is itself an aspect of the open justice principle.[65] In the professional disciplinary context, it is especially desirable that reasons are given and expressed as openly as reasonably possible.[66] In any case, it should usually be possible to accommodate the existence of confidential material by publishing reasons that, formulated in general terms or with appropriate omissions or redactions, ‘convey an adequate account of the litigation and the reasons underlying the orders’.[67]
[65]Wainohu v New South Wales (2011) 243 CLR 181, 215 [58] (French CJ and Kiefel J). See also Botsman v Bolitho (2018) 57 VR 68, 120 [244] (Tate, Whelan and Niall JJA); AK v Western Australia (2008) 232 CLR 438, 470 [89] (Heydon J).
[66]Karimjee [2021] NSWCA 179, [11] (Meagher, Payne and McCallum JJA).
[67]Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532, 596 [185] (Crennan J); David Syme [1984] 2 NSWLR 294, 300–1 (Street CJ).
The above analysis holds good, irrespective of whether s 121 of the Family Law Act is constitutionally valid. While the applicant doubtless maintains his challenge to the validity of s 121, that issue no longer arises in this proceeding as its resolution in his favour would not advance his position. There is therefore no occasion to hear argument on the constitutional question. In any event, the consequence, if invalidity were made out, would be that there would be nothing preventing publication of the details of the Family Court proceeding. That would be a matter for the Family Court, not the Tribunal, to address.
Apprehended bias
The applicant submitted that the Vice President erred in refusing to recuse herself. An apprehension of bias was said to arise because the Vice President:
(gg) did not indicate, on a rolling basis, whether she did or did not accept each of the applicant’s oral submissions, thus preventing him from tailoring his submissions on his feet;
(hh) repeatedly interrupted the applicant and ‘pressured him’ for an adjournment;
(ii) refused to engage with the applicant’s criticisms of the Family Court and the orders made in that proceeding; and
(jj) repeatedly ruled against the applicant, while indulging the respondent with extensions of time.
The respondent submitted that there was no error in the Tribunal’s approach to the applicant’s recusal application. The Tribunal referred to the correct tests, and applied them. The factual basis for some of the applicant’s complaints was simply not established. For example, it is not at all clear that the applicant was repeatedly interrupted or prevented from making submissions. Instead, the Vice President engaged in appropriate case management and attempted to assist the applicant, a self-represented litigant, engage with the relevant issues. In any event, the other matters raised were said to be incapable of giving rise to an apprehension of bias.
In our view, there is no substance in this proposed ground of appeal. The transcript of the hearing before the Vice President reveals that the applicant repeatedly sought to have the Tribunal venture into the merits of aspects of the decision of the Family Court and the general conduct of the respondent, including by accepting evidence on those issues. The Vice President pointed out to the applicant that the Tribunal lacked jurisdiction to undertake such an exercise, and sought to explain to him the scope of the matters that were before the Tribunal. She also left the bench for a number of short breaks, both to enable the applicant to respond to questions she had raised and to enable him to regain his composure. The Tribunal made notes, for its future reference, of a number of questions the applicant asked of it, framed in terms of whether or not the Tribunal accepted certain submissions of fact (including as to matters that arose in the Family Court). The Vice President did not offer answers to such questions. The Tribunal was not required to, in effect, maintain a running scorecard as the applicant’s submissions progressed. Instead, she pointed out difficulties with some of his submissions and reserved judgment on the issues before her.
Nothing in the transcript reveals anything other than orthodox management of a hearing to ensure that a self-represented litigant understood the issues on which the Tribunal would be assisted by submissions, and had a proper opportunity of making such submissions. Procedural fairness and proper management of valuable tribunal resources requires that a party be informed when their submissions are irrelevant to the matters before a tribunal. If that interrupts the ‘flow’ of those submissions, then so be it. No fair minded observer could think that following that course in this instance meant that the Tribunal might not bring an impartial mind to bear when deciding the case.[68] To the contrary, that observer would perceive that the Tribunal acted with admirable patience and restraint in the conduct of a difficult hearing.
[68]Johnson (2000) 201 CLR 488, 493 [12]–[13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
Transcripts
The applicant submitted that the Tribunal erred by ordering him to meet half the cost of the transcription of hearings. He characterised having to share this expense in his own disciplinary hearings as ‘akin to having to pay for one’s own criminal trial’.
The respondent contended that no error arises. The applicant had requested that the proceedings be transcribed. That request was granted, over the respondent’s objection. There was no error in requiring that the applicant share the costs of the transcription he requested.
This proposed ground is entirely without merit. There is no obligation on the respondent to provide transcript to a practitioner against whom it brings allegations of professional misconduct. It was open to the Tribunal, in the exercise of its discretion to order the preparation of a transcript, to provide that the parties would share the cost of doing so.
Witness summonses
The applicant submitted that the Tribunal erred by requiring that he obtain leave before seeking the issue of any witness summons, and by refusing him leave when it was sought. He contended that this impeded his ability to gather necessary materials for use in the disciplinary proceeding. He complained that the respondent was not made subject to the same impediment.
The respondent contended that there was no error. The order did not prevent the applicant from seeking the issue of a witness summons, it simply ensured that any summons issued would be relevant to an issue in the proceeding. A later oral application for leave to have a summons issued was only refused because the applicant failed to identify an issue in the proceeding to which the summons related.
There is no merit at all in this complaint. Section 104 of the VCAT Act provides a discretion for the Principal Registrar to issue a witness summons at the request of a party. There is no obligation on the Principal Registrar to do so, and no right of a party to have a summons issued. It lies within the discretion of the Tribunal to regulate the manner in which witness summonses are issued. If it has a concern about the conduct of one party in seeking to have irrelevant material produced by summons, it is a valid, indeed obvious, exercise of discretion to implement a formal procedure whereby that party must establish a proper basis for the issue of a summons.[69]
[69]Corry v Victoria Police [2011] VCAT 2107, [8].
Procedural fairness
Finally, the applicant submitted that the Tribunal had denied him procedural fairness by refusing to order the respondent to disclose the final orders it would seek if the allegations in issue were established. His ignorance of the final orders that the respondent will seek should it succeed, he submitted, left him unable to seek injunctive relief and vulnerable to ‘surprise’. He submitted that if the final relief sought were simply a reprimand or warning, he would not contest the proceeding and could focus his energies and resources elsewhere.
The respondent contended that there was no denial of procedural fairness. To order it to specify final orders would be premature because the orders it will seek will depend upon the Tribunal’s findings of fact, and any material filed by the applicant.
We reject this proposed ground. There is no denial of procedural fairness in a regulatory body reserving its position as to the disciplinary sanction it will seek, if allegations are sustained, until such time as the decision-maker has made findings on all the evidence. It may well be premature for the regulatory body to do otherwise, without knowing how the evidence has played out. Apart from anything else, it may not know what evidence the respondent will adduce, which may bear on the proper penalty.
To the extent that the applicant’s complaint is premised on the assumption that, if the respondent were only to seek a reprimand or warning, the matter would resolve, that assumption fails to take account of the role of the Tribunal, both in fact-finding and in determining the appropriate sanction if professional misconduct or unprofessional conduct is established. It is apparent, in any event, that the respondent has not accepted the applicant’s willingness to conclude the matter on that basis as an appropriate resolution of the allegations.
Conclusion
Leave to appeal is granted in respect of the Tribunal’s decision not to revoke the proceeding suppression order, but is otherwise refused. The appeal is allowed to that extent and the order of the Tribunal made on 25 May 2021 is varied by adding, as order 2A, an order revoking paragraphs 2 to 4 (inclusive) of the Tribunal’s order dated 1 July 2020.
We will also make an interim proceeding suppression order prohibiting the disclosure by publication or otherwise of a report of the whole or any part of the proceeding in the Tribunal, or information derived from it, which might identify the applicant, his former wife, or their children, before 11 February 2022. That order will enable the preservation of the status quo pending determination by the Tribunal of the proper scope of any proceeding suppression order, as well as reviewing the use of pseudonyms and the closing of the Tribunal for the substantive hearing.
It is not necessary to extend or renew the proceeding suppression order made in this Court. As mentioned earlier, the Court has adopted a pseudonym for the applicant[70] and directed that the file be sealed. These reasons are intended not to disclose any information that might properly be the subject of an application for a proceeding suppression order when the matter comes to be reconsidered in the Tribunal. However, the parties will be given a short opportunity to raise any concerns in that regard before the reasons are published, in which case the Court may be persuaded to publish the reasons in redacted form.
[70]See n 1 above, as to the respondent.
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