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MDF v Central Queensland Network Authorised Mental Health Service

 

[2020] QCA 108

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

MDF v Central Queensland Network Authorised Mental Health Service & Anor [2020] QCA 108

PARTIES:

MDF

(appellant)

v

CENTRAL QUEENSLAND NETWORK AUTHORISED MENTAL HEALTH SERVICE

(first respondent)

MENTAL HEALTH REVIEW TRIBUNAL

(second respondent)

FILE NO/S:

Appeal No 2402 of 2019

SC No 917 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton – [2019] QSC 15 (Crow J)

DELIVERED ON:

26 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2019

JUDGES:

Fraser and McMurdo JJA and Applegarth J

ORDERS:

  1. Allow the appeal against the order dismissing the appellant’s application made on 8 February 2019 in so far as that order dismissed the application in relation to the decision of the second respondent to issue an examination authority relating to the appellant.
  2. Order that within 14 days of the pronouncement of this order the second respondent provide to the applicant a written statement containing the reasons for the decision to issue an examination authority in relation to the applicant, except that the second respondent is not required to include in the statement information redacted as indicated in the draft statement of reasons in Exhibit “AM-3” to the affidavit of Ms Annette McMullen sworn on 14 December 2018 amended as described in [66] of the reasons for judgment of Fraser JA.
  3. Refuse the appellant’s application filed on 15 July 2019 for leave to adduce further evidence.
  4. Vary order number 1 in the orders made by Crow J on 21 December 2018 by adding at the end of that order the text “, except that the certificate of the Attorney-General attached to that affidavit and marked ‘AM-2’ is not to be kept in the sealed envelope but is to be placed on the Court’s file.”

CATCHWORDS:

ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – REQUEST FOR REASONS – where an examination authority was issued in relation to the appellant under the Mental Health Act 2016 (Qld) – where the appellant was detained for seven days – where a treatment authority signed by a general practitioner and a psychiatrist diagnosed that the appellant suffered from paranoid schizophrenia – where the treatment authority was subsequently revoked after the appellant had received treatment – where the appellant requested statements of reasons for various decisions from the respondents under s 32 of the Judicial Review Act 1991 (Qld) whether the appellant was entitled to an order under s 38 of the Judicial Review Act that the respondents give statements of reasons

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the appellant applied for statements of reasons in relation to four decisions he attributed to the first respondent: a decision to support an application for an examination authority, a decision to request police assistance to execute the examination authority, a decision to make a recommendation for assessment, and a decision to make a treatment authority for the appellant – whether the first respondent made such decisions or whether they were made by other persons – whether such decisions were decisions of an administrative character made under an enactment

ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – REQUEST FOR REASONS – where the reasons for the decision of the second respondent, the Mental Health Review Tribunal, to issue the examination authority were not provided to the appellant – where the Attorney-General issued a certificate under s 36 of the Judicial Review Act certifying that the disclosure of information relating to the decision of the tribunal to issue the examination authority would be contrary to the public interest – where the president of the tribunal deposed in an affidavit that disclosure of the statement of reasons would undermine public confidence in the confidentiality of information provided to the tribunal – whether the decision of the tribunal was subject to judicial review – whether the tribunal’s statement of reasons should be provided to the appellant – whether the statement of reasons would be false and misleading if provided to the appellant with redactions in accordance with the Attorney-General’s certificate

Judicial Review Act 1991 (Qld), s 4, s 7, s 13, s 20, s 31, s 32, s 33, s 34, s 36, s 37, s 38

Mental Health Act 2016 (Qld), s 31, s 32, s 33, s 34, s 35, s 39, s 41, s 43, s 44, s 45, s 48, s 49, s 50, s 56, s 333, s 502, s 503, s 504, s 506, s 703, s 705, s 732, s 733, s 736, s 737, s 739, s 755, s 756

Uniform Civil Procedure Rules 1999 (Qld), r 439

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited

Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562; [1995] FCA 1212, distinguished

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, cited

Kioa v West (1985) 159 CLR 550; [1985] HCA 81, cited

Perry v Director of Public Prosecutions (1985) 6 FCR 578; [1985] FCA 182, distinguished

Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21, cited

Z’Quessah Bosch v Office of the Information Commissioner & Anor [2016] QCATA 191, cited

COUNSEL:

The appellant appeared on his own behalf

S J Deaves for the first respondent

S G Moon for the second respondent

SOLICITORS:

The appellant appeared on his own behalf

Crown Law for the respondents

  1. [1]
    FRASER JA:  The appellant appeals against a decision by Crow J dismissing an application by the appellant for orders under s 38 of the Judicial Review Act 1991 (Qld) requiring the first respondent and the Mental Health Review Tribunal (“the tribunal”) to comply with the applicant’s requests for reasons for decisions under the Mental Health Act 2016 (Qld) that resulted in his detention for seven days under the Mental Health Act.  The appellant’s notice of appeal seeks orders to that effect and related orders.
  2. [2]
    The following outline of the events giving rise to the litigation is derived from affidavits sworn by the appellant and exhibits to those affidavits.  On the morning of 15 June 2018 at about 9.20 am, “QLD Health employees and police officers violently forced entry into my premises”.  Those employees advised the appellant they had an examination authority.  The appellant was detained from 15 to 22 June 2018 in the Emergency Department and subsequently at the Mental Health Unit.  On 18 June 2018 a treatment authority was signed by a general practitioner and a psychiatrist who diagnosed that the appellant suffered from paranoid schizophrenia.  The appellant was discharged to his home on 22 June 2018.  He subsequently received treatment as an outpatient.  The appellant underwent a psychiatric review by a psychiatrist on 5 July 2018.  On 16 July 2018 the tribunal revoked the 18 June 2018 treatment authority.
  3. [3]
    Before those events occurred the appellant was receiving treatment for injuries he had received in a motor vehicle accident.  Pain medication he was taking resulted in him often being awake at night or early in the morning.  On 23 May 2018 he found nailed to his front gate a letter from a neighbour complaining that in the early hours of 21 and 22 May 2018, and in previous weeks at times the neighbour had recorded, the appellant woke the neighbour by banging loudly.  The neighbour threatened legal action.  Police officers came to the appellant’s house on 3 June 2018 and told him of a noise complaint.  He denied having made noise and promised to take care to prevent annoyances to his neighbours.  About three hours later police officers again came to the appellant’s house and there was a similar conversation.  On 5 June 2018 the neighbour who had nailed the letter to his front gate entered his property and confronted the appellant.  The appellant alleged that the neighbour told him that he hadn’t heard anything on 22 June 2018 but that neighbour said another neighbour had told him that the appellant had made noise that night.  The first neighbour said he was using a listening device to record noise coming from the appellant’s house.  The appellant asked him to ring when there was noise disturbing him.  At 12.30 am on 12 June 2018 the same neighbour rang the appellant and said the appellant was making too much noise and he had called the police.
  4. [4]
    In a letter dated 15 July 2018 the appellant denied statements in the psychiatrist’s clinical report of 5 July 2018 that the appellant had a long standing history of paranoid schizophrenia.  The appellant stated that he was not diagnosed with paranoid schizophrenia or any other serious illness when he was 20 and the first time he consulted with a psychiatrist was in 2002.  He denied statements that he had become non-compliant with medication and stated that a private psychiatrist he saw had gradually reduced his medication to nil.  He denied statements that he had expressed paranoia to his neighbours, that he had been gradually deteriorating for eight months, and that he had not answered his door when visited by clinicians in early June 2018.  In relation to a statement that he had been making loud noises at night, the appellant referred to the neighbour’s letter he had found nailed to his fence and said he had explained to the neighbour that he had been injured in a motor vehicle accident and that he had gone to bed early on 22 May 2018.
  5. [5]
    The president of the tribunal, Ms McMullen, deposed that the content of three exhibits to one of her affidavits – an application for an examination authority relating to the appellant, a certificate of the Attorney-General, and a draft statement of reasons for the decision of the tribunal to issue the examination authority, with redactions removing the information captured by the certificate – contained confidential information in relation to the appellant.  In her opinion it would be injurious to the public interest and the administration of the tribunal if information contained in those documents were to be disclosed to any person.  One of the reasons for that conclusion given by Ms McMullen was that disclosure would “undermine public confidence in the confidentiality of information provided to the Tribunal, deterring potential informants from divulging useful information”.  Those three exhibits were kept confidential and not served upon the appellant.
  6. [6]
    On 2 and 3 July 2018 the appellant wrote to the tribunal and the first respondent respectively requesting statements of reasons for decisions relating to the appellant’s detention under the Mental Health Act.  The first respondent did not supply reasons for decisions attributed to it.  On 6 August 2018 the Attorney-General issued a certificate under s 36 of the Judicial Review Act certifying that the disclosure of information relating to the decision of the tribunal made on 14 June 2018 to issue an examination authority under the Mental Health Act in relation to the appellant would be contrary to the public interest.  On 10 August 2018 the president of the tribunal wrote to the appellant advising him of the issue of the Attorney-General’s certificate and stating that the reasons contained information of a confidential nature and in accordance with the Attorney-General’s certificate would not be provided to the appellant.
  7. [7]
    The appellant’s requests for statements of reasons were made pursuant to s 32 in part 4 of the Judicial Review Act.  Under that section, a person who is entitled to apply for a statutory order of review under s 20 of the same Act in relation to a “decision to which this part applies” may request the person who made the decision to provide a written statement.  Section 34 provides that the statement must contain the reasons for the decision.  Subject to provisions which are not relevant in this appeal, s 33 obliges a decision-maker to provide a statement of reasons for the decision to a person who made a request under s 32.  The expression in s 32 “a decision to which this part applies” is defined in s 31 to mean “a decision to which this Act applies”, subject to two exclusions.  The only exclusion submitted to be relevant is “a decision that includes, or is accompanied by a statement, giving the reasons for the decision”.  Section 20 entitles a person “who is aggrieved by a decision to which this Act applies” to apply for a statutory order of review.  Section 4 contains a definition of the expression “a decision to which this Act applies” used in ss 20 and 31.  For the purposes of this appeal the relevant part of the definition is “a decision of an administrative character made … under an enactment”.
  8. [8]
    The appellant’s application was made pursuant to s 38(1).  That provision empowers a person who made a request under s 32 to a decision-maker for a written statement in relation to a decision to apply to the court for an order under s 38 if the decision-maker does not either comply with the request or apply for an order declaring that the requestor was not entitled to make the request within 28 days after receiving it.  Section 38(2) empowers the court to order the decision-maker to give the statement within a specified period if the court considers the requestor was entitled to make the request.

Application for reasons for decisions the appellant attributed to the first respondent

  1. [9]
    The appellant’s application stated that it related “to the decision of the respondents that [he] be detained under the Mental Health Act”.  The appellant did not pursue a claim that either respondent made a decision in those terms.  An affidavit by the appellant more clearly identified the decisions he attributed to each respondent.  He attributed four decisions to the first respondent.
  2. [10]
    The first decision attributed to the first respondent in the appellant’s affidavit is a decision to apply to the tribunal for an examination authority for the appellant.  Section 502 of the Mental Health Act provides that an application for an examination authority may be made by the administrator of an authorised mental health service, a person authorised in writing by the administrator of an authorised mental health service to make such an application, or a person who has received advice from a doctor or authorised mental health practitioner about the clinical matters for the person who is the subject of the application.  It clearly appears upon the face of the application for the examination authority that the first respondent was not the applicant.  At the hearing before the primary judge the respondents relied upon an affidavit by Dr Kristy Richardson, the administrator of the first respondent, in which she swore that the first respondent had not made the application.  There is no evidence to the contrary.
  3. [11]
    Before the primary judge the appellant abandoned the contention that the first respondent made a decision to apply for the examination authority.  Instead he argued that the first respondent made a decision to support the application for an examination authority.  The primary judge held that it could not be concluded that the first respondent made any decision to apply for the examination authority which would be subject to review or an order to provide reasons under the Judicial Review Act.
  4. [12]
    Contrary to appeal ground (i), the primary judge did not hold that individual employees of a mental health service, rather than the administrator of the service, are the decision-makers for the purposes of judicial review.  I treat that ground as also encompassing the appellant’s challenges to findings by the primary judge[1] that decisions the appellant attributed to the first respondent were made by a doctor or authorised mental health practitioner rather than by the first respondent.
  5. [13]
    Section 502(2) of the Mental Health Act requires an application for an examination authority to include a statement by an authorised mental health practitioner or a doctor that the behaviour of the appellant, or other relevant factors, could reasonably be considered to satisfy the requirements under s 504(2) for making an examination authority for the appellant.  The reported symptoms and behaviours leading to that conclusion and information about “clinical matters” as defined in s 502(3) must be stated in the application.
  6. [14]
    Whilst the doctor or authorised mental health practitioner who made the statement in conformity with s 502(2) might in one sense be said to have “supported the application” there is no evidence that the first respondent made any decision to similar effect.  There is also no evidence that the mental health practitioner or doctor who made the statement in the application for an examination authority in conformity with s 502(2) was an employee of the first respondent.  Even if there were an employment relationship it would not follow that the statement s 502(2) requires to be made by an authorised health practitioner or a doctor would evidence a decision by the first respondent to support the application.
  7. [15]
    The appellant referred to ss 333 and 504(3)(b) of the Mental Health Act.  Section 333 describes the functions of an administrator of an authorised mental health service.  The functions include appointing authorised doctors and authorised mental health practitioners, notifying patients of the authorised mental health service and others of decisions as required under the Act, and taking reasonable steps to ensure patients of the authorised mental health service receive appropriate treatment and care.  None of the functions described in s 333 implies that a decision made under the Mental Health Act by an authorised doctor or mental health practitioner appointed by an authorised mental health service is to be treated as being or being supported by a decision of that authorised mental health service where it has not otherwise made any such decision.  Section 504(3)(b) requires that an examination authority state the authorised mental health service responsible for the examination of the person under the authority.  That provision is neutral in relation to the question whether the authorised mental health service had any role in bringing or supporting the application for the authority.
  8. [16]
    Under the statutory provisions described in [7] – [8] of these reasons a condition of the court’s power to make an order under s 38 is that the decision-maker against whom the order is sought has made a decision of an administrative character under an enactment.  As the primary judge observed, the meaning of the expression “a decision … made … under an enactment” was explained in two High Court cases.  In Australian Broadcasting Tribunal v Bond[2] (which concerned an indistinguishable provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth)) Mason CJ (Brennan and Deane JJ agreeing) held that “a reviewable ‘decision’ is one for which provision is made by or under a statute” and that “will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”.  More recently, in Griffith University v Tang[3] (which concerned the Judicial Review Act) Gummow, Callinan and Heydon JJ held that a decision will only be “made … under an enactment” if both of two criteria are met: “the decision must be expressly or impliedly required or authorised by the enactment; and … the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.”
  9. [17]
    The first decision the appellant attributed to the first respondent is not required, authorised or otherwise provided for by the Mental Health Act.  Nor would such a decision itself affect any legal rights or obligations.
  10. [18]
    The second decision attributed to the first respondent is a decision to request police assistance in order to execute the examination authority.  The primary judge referred to ss 32 and 34 of the Mental Health Act and held that any such decision was made by a doctor or authorised mental health practitioner, it was not a decision of the first respondent or the tribunal, and it was not a decision to which the Judicial Review Act applied.  Appeal ground (iii) contends that the primary judge erred in law in holding that a decision to request police assistance in order to execute an examination authority issued by the tribunal is not justiciable under the Judicial Review Act.
  11. [19]
    The issue of an examination authority enlivens various statutory powers under the Mental Health Act.  Section 31 empowers a doctor or authorised mental health practitioner to examine a person to decide whether to make a recommendation for assessment for the person, including if the person asks for or consents to the examination (s 31(2)(a)) or under an examination authority (s 31(2)(b)).  Section 32 empowers a doctor or authorised mental health practitioner to enter a place stated in the authority or another place in which the doctor or authorised mental health practitioner considers the person subject to the examination authority may be found and  examine the person without the person’s consent at the place at which the person is found or, if the doctor or authorised mental health practitioner considers it clinically appropriate, at an authorised mental health service or public sector health service facility.  Section 33 provides that a doctor or authorised mental health practitioner may exercise a power under s 32 with the help, and using the force, that is necessary and reasonable in the circumstances.  Section 32(2)(c) empowers a doctor or authorised mental health practitioner to detain the person at the place at which the person is examined for the period reasonably necessary for the examination.  If the place is an authorised mental health service or public sector health service facility, the period of detention may extend to six hours from when the person first attends the service or facility for the examination.  Otherwise the maximum period of detention is one hour starting from when the person is found at the place.  Section 34 provides that for performing a function or exercising a power under s 32 in relation to a person a doctor or authorised mental health practitioner is a public official for the Police Powers and Responsibilities Act 2000 (Qld).
  12. [20]
    The primary judge was correct in considering that upon the evidence any decision to request police assistance in order to execute the examination authority was made by a doctor or authorised mental health practitioner and not by the first respondent (or the tribunal).  In any event, any such decision by the first respondent would not be a decision “made … under an enactment”, at least because no such decision is required, authorised or otherwise provided for by the Mental Health Act and such a decision would not itself affect any legal rights or obligations.
  13. [21]
    The appellant argued that the police officers who assisted in forcing entry into his house must have done so at the request of employees of the first respondent.  There is no evidence that anyone present at that time was an employee of the first respondent or made any such request.  The appellant also argued that the examination authority must have been issued upon the basis that there was a need to remove him to an authorised mental health service with the assistance of armed police officers, and that this was unnecessary given his evidence that he was incapacitated due to an injury sustained in a motor vehicle accident, waiting to undergo neurosurgery, and asleep when the authority was issued.  To the extent that this argument challenges the merits of the decision to grant the examination authority it concerns matters that are necessarily beyond the scope of an appeal against the primary judge’s decision to refuse to order the respondents to give statements of reasons for decisions attributed to them.
  14. [22]
    The third decision attributed to the first respondent is a decision to make a recommendation for assessment for the appellant on 15 June 2018.  Pursuant to s 31 of the Mental Health Act, under an examination authority a doctor or authorised mental health practitioner may examine a person to decide whether to make a recommendation for assessment for the person.  Section 39 authorises a doctor or authorised mental health practitioner who has examined a person under s 31 to make a recommendation for assessment if satisfied that the “treatment criteria” may apply to the person and there appears to be no less restrictive way for the person to receive treatment and care for the person’s mental illness.  By s 41, a recommendation for assessment is in force for seven days.  The making of a recommendation for assessment enlivens powers to transport the person to be assessed to and detain the person in an authorised mental health service or public sector health service facility: ss 44 – 45.  (The maximum period of detention for assessment at the service or facility is 24 hours starting from when the recommendation for assessment was made.  The authorised doctor making the assessment may extend the period to a maximum of 72 hours after the start of the period: s 45(2).)
  15. [23]
    The primary judge accepted the submission for the first respondent that there was no evidence that the first respondent had made any recommendation for the assessment of the appellant and found that the decision made by the doctor or authorised mental health practitioner under s 39 was not a decision made by the first respondent.  The reasons I have given for holding that ground (i) fails in relation to the first decision attributed to the first respondent are applicable in relation to the third suggested decision.  The Mental Health Act does not require, authorise or attribute any legal effect to such a decision by the first respondent.
  16. [24]
    The fourth decision attributed to the first respondent is the decision to make a treatment authority for the appellant.  The primary judge considered that if the first respondent made such a decision it became “inoperative” or a “spent force” decision and concluded that the suggested decision was unreviewable for that reason.  Because I would hold that other considerations compel the same conclusion it is not necessary to discuss this point in relation to the fourth decision, but a similar argument in relation to the tribunal’s decision to issue the examination authority is discussed in [47] of these reasons.
  17. [25]
    The primary judge gave four other reasons for rejecting the appellant’s application in relation to the fourth decision: a decision to make a treatment authority is a decision by an authorised medical practitioner or authorised psychiatrist, rather than a decision of the first respondent; medical decisions are not decisions “of an administrative character”; s 31 of the Judicial Review Act excludes from part 4 any decision which includes reasons for the decision and such reasons were required by the Mental Health Act and in fact given; and an application for statutory review necessarily would be dismissed under s 13 of the Judicial Review Act because the applicant was entitled to seek and had successfully sought review of the same matter by the tribunal under s 56 of the Mental Health Act.
  18. [26]
    Treatment authorities are regulated by part 4 of the Mental Health Act.  Section 48 provides that part 4 applies if an authorised doctor making an assessment of a person under part 3 is satisfied that the “treatment criteria” apply to the person and there is “no less restrictive way for the person to receive treatment and care for the person’s mental illness”.  A treatment authority may be made only if there is a recommendation for assessment: see ss 43, 48 and 49.  Section 49 provides that the authorised doctor may make a treatment authority for the person.  Section 50 requires the treatment authority to be in the approved form and to include various statements, including a statement of the grounds on which the authorised doctor is satisfied the treatment criteria apply to the person and a statement identifying the authorised mental health service responsible for the person’s treatment and care under the treatment authority.  The treatment authority includes a declaration by a designated authorised doctor that the doctor had assessed the appellant and was satisfied that the treatment criteria applied to the appellant and there was no less restrictive way for the appellant to receive treatment and care for the mental illness.
  19. [27]
    Section 56 of the Mental Health Act requires an authorised psychiatrist to review a treatment authority if it was made by an authorised doctor who was not a psychiatrist.  By s 56(2) the authorised psychiatrist is to decide whether to confirm the treatment authority, with or without amendment, or to revoke it.  The treatment authority includes a statement by a designated authorised psychiatrist that the psychiatrist conducted an examination and the treatment authority was confirmed without amendment.  The first respondent is described in the form as the “treating” authorised mental health service.  At the end of the form there is an entry, “To: AMHS Administrator Mental Health Review Tribunal”.
  20. [28]
    The reasons I have given for holding that ground (i) fails in relation to the first decision attributed to the first respondent are applicable in relation to the fourth decision.  There is no evidence of a decision by the first respondent to make a treatment authority.  Any such decision would not be required, authorised, or otherwise provided for by or under the Mental Health Act.  I conclude that there was no error in the primary judge’s conclusion that a decision to make a treatment authority is a decision by an authorised medical practitioner or authorised psychiatrist, rather than a decision of the first respondent.
  21. [29]
    That conclusion requires rejection of the appellant’s appeal in relation to the fourth suggested decision.  It is not necessary to discuss the other three reasons given by the primary judge for reaching the same conclusion.

Application for reasons for the tribunal’s decision to issue an examination authority

  1. [30]
    On 14 June 2018, pursuant to s 504 of the Mental Health Act the tribunal issued an examination authority naming the appellant as the person to be examined under it.  (A copy of this document is exhibited to one of the appellant’s affidavits.)  It records that the tribunal considered that the appellant may have a mental illness, he may lack the capacity to consent to treatment of that illness, and there may be an imminent risk of serious harm to him or another or he may suffer serious mental or physical deterioration.  Upon the tribunal reaching those conclusions, s 504(2) empowered the tribunal to issue an examination authority.  Section 504(3)(b) required the examination authority to identify the authorised mental health service responsible for the examination of the appellant under the authority.  The examination authority duly identifies the first respondent.  Section 506 required the tribunal to give a copy of the examination authority to the administrator of that authorised mental health service.  That provision is reflected in a note on the form.
  2. [31]
    The decision of the tribunal to issue the examination authority is the only decision of the tribunal for which the appellant seeks reasons.  In this respect the appellant’s notice of appeal seeks an order that the tribunal provide the appellant with a statement of reasons for its decision to issue the examination authority and a declaration that the decision by the Attorney-General to issue a certificate under s 36 of the Judicial Review Act in relation to the appellant’s request for reasons is void ab initio for want of jurisdiction.
  3. [32]
    The primary judge considered that the tribunal should not be ordered to give reasons for its decision to issue the examination authority because the appellant was not a party or entitled to be heard in the proceeding in which the tribunal issued the examination authority.  Whilst it was a serious matter to deprive a citizen of his liberty, upon the construction of the Mental Health Act as a whole there was a clear legislative intent to exclude the person the subject of an application for an examination order from the hearing where the tribunal decides whether to issue an examination authority.  Appeal ground (vi) contends that the primary judge erred in law by holding that there is an implied legislative intent that a citizen who is the subject of the relevant proceeding under the Mental Health Act should not be accorded natural justice.  Ground (ii) contends that the primary judge erred in law by holding that a decision by the tribunal to issue an examination authority pursuant to the relevant part of the Mental Health Act is not justiciable under the Judicial Review Act.  Under this ground the appellant submitted that the Mental Health Act does not contain an express or implied intention that a decision by the tribunal to issue an examination authority is to be excluded from judicial review.
  4. [33]
    The appellant relies upon the proposition confirmed in Kioa v West[4] that there is a common law duty to accord procedural fairness in making administrative decisions which affect an individual’s rights, interests or legitimate expectations, unless a contrary intention is clearly manifested in the empowering statute.  In any event, s 733 of the Mental Health Act provides that the tribunal must act fairly and according to the substantial merits of the case in all proceedings and that in conducting a proceeding the tribunal “must observe the rules of natural justice”.
  5. [34]
    In Kioa v West Mason J observed that where the decision is provided for by statute, the content of natural justice “depends to a large extent on the construction of the statute” and the relevant circumstances to be taken into account including “the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting”.[5]  Mason J described the “critical question” in most cases as being not whether or not the principles of natural justice apply but “what does the duty to act fairly require in the circumstances of the particular case?”[6]  The same is true in this case, in which the obligation to afford natural justice is statutory.  Since the principles of natural justice ordinarily require that a person who will be adversely affected by a decision has a right to be notified and heard in opposition to such a decision being made, the real question upon this aspect of the case is whether that right has been excluded by the Mental Health Act.  That right is not expressly excluded in relation to the relevant decision.  The issue therefore is whether it is impliedly excluded.
  6. [35]
    That is the approach the primary judge adopted.  After referring to s 733, the primary judge examined relevant statutory provisions and found a clear legislative intent to exclude from the hearing of an application for an examination authority the person who would be the subject of that order.  The primary judge found such an implication in the scheme of the legislation, and particularly in provisions from which it clearly appears that only those persons entitled to be given notice of a hearing are regarded as parties who are entitled to attend the hearing.  The primary judge pointed out that many sections in the Act are headed “Notice of Hearing” and identify the person who must be given written notice of the hearing[7] and remarked that s 503 was unique in excluding the person the subject of the application from an entitlement to be given notice of the hearing.  Section 503(1) identifies the applicant as the only person who must be given written notice of the hearing of the application.  As the primary judge considered, that provision must be considered in the context that s 736(1) provides that a person who is entitled to be given notice of a hearing of a proceeding has a right to appear in person at the hearing and that s 703 defines “party” to a proceeding, for a proceeding under chapter 12 of the Act, as meaning a person who has a right to appear in person at the hearing of the proceeding.  It is also relevant, as the primary judge considered, that s 504 empowers the tribunal to issue an examination authority only if the tribunal considers that the party has or may have a mental illness and does not or may not have the capacity to consent to treatment for the mental illness.
  7. [36]
    Section 35(1) of the Mental Health Act is consistent with the primary judge’s conclusion.  That provision relates to the exercise of functions and powers under s 32 in relation to a person.  Section 35(1) provides that before performing such a function or exercising such a power, a doctor or authorised mental health practitioner “must do or make a reasonable attempt to do” various things, including “(b) tell the person an examination authority has been made”, “(c) explain to the person, in general terms, the nature and effect of the authority”, and “(d) give the person a copy of the authority, if requested”.  Section 35(2) provides that the doctor or authorised mental health practitioner need not comply with s 35(1) if the doctor or health practitioner believes on reasonable grounds that not complying with that subsection is required to ensure the execution of the authority is not frustrated.
  8. [37]
    Although the appellant did not raise this point, I should mention that ss 739(1) and (2) of the Mental Health Act confer rights of representation and support upon a person “who is the subject of a proceeding”.  According to the express terms of s 732, s 739 (and a related provision in s 740) apply “to any proceeding in the tribunal under this Act”.  In the context of the provisions which the primary judge discussed, however, the latter sections should be construed as applying only in relation to a person who is otherwise entitled to appear at the hearing.  It is not to be supposed that the legislative intent is to allow a person who has no right to appear at the hearing to have someone supporting or representing him or her at the hearing.
  9. [38]
    Accepting the primary judge’s conclusion that the appellant was not a party or entitled to be heard at the hearing of the application for the examination order, the question is whether it follows that the appellant is not entitled an order under s 38 of the Judicial Review Act requiring the tribunal to give him a statement of reasons for its decision to issue the examination authority.
  10. [39]
    The relevant requirements of the provisions of the Judicial Review Act (see [7] – [8] of these reasons) are that the decision to issue an examination authority was “a decision of an administrative character made … under an enactment” and the appellant was “aggrieved by” that decision.  The decision was of an administrative character.  It was also operative and determinative and derived from the Mental Health Act in the sense that such a decision was expressly authorised by that Act and it affected legal rights or obligations.
  11. [40]
    That is so because the appellant’s legal rights were reduced – indeed they were reduced in a very substantial way – by the issue of the examination authority in a way that corresponded with the enlargement of the legal rights of those who became entitled to exercise the powers in ss 31 – 33.  Obvious examples of the ways in which the examination authority itself reduced the appellant’s common law rights are found in the rights conferred by the Mental Health Act upon a doctor or authorised mental health practitioner to “enter a place stated in the authority or another place in which the doctor or authorised mental health practitioner considers the person may be found” (s 32(2)(a)), “examine the person, without the person’s consent, at … the place at which the person is found” (s 32(2)(b)(i)), “detain the person at the place at which the person is examined” (s 32(2)(c)), and “exercise a power under section 32 with the help, and using the force, that is necessary and reasonable in the circumstances” (s 33).  In short, upon the issue of an examination authority, a doctor or authorised mental health practitioner is empowered by the Act to engage in conduct which otherwise would amount to common law wrongs actionable by the person the subject of the authority and in some circumstances criminal offences.
  12. [41]
    For the same reason the person the subject of an examination authority has standing to apply for a statutory order of review as a “person aggrieved” by the decision to issue the examination authority, the quoted term being defined in s 7 of the Judicial Review Act to include a reference to a person whose interests are adversely affected by the decision.
  13. [42]
    Counsel for the tribunal referred the court to ss 755(1) and 756(1) of the Mental Health Act.  Section 755(1) obliges the tribunal to give notice of a decision in a proceeding within seven days of the decision to “each person who was entitled to be given notice of the hearing”.  Section 756(1) provides that the tribunal must, on request by a person mentioned in s 755(1), give the person written reasons for the decision.  Counsel for the tribunal did not submit that the provisions of the Mental Health Act to which he referred impliedly repeal the provisions of the Judicial Review Act that confer rights to apply for a statutory order of review and reasons for decisions to issue an examination authority under the Mental Health Act.  A later statute will impliedly repeal an earlier statute if they are inconsistent, but “[t]here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate”.[8]  The context in which the Mental Health Act falls to be interpreted includes the existence of the Judicial Review Act, the purposes of which include providing for rights to apply for review of administrative decisions and for reasons for such decisions where such remedies were not otherwise conferred by statutes under which the decisions were made.  It is possible to comply simultaneously with both statutes in issue, since it is only the Judicial Review Act which might require reasons to be given for a decision by the tribunal to issue an examination authority.  There are insufficient grounds to displace the general presumption that the legislature intended both sets of provisions to operate.
  14. [43]
    Otherwise, all that can be drawn from ss 755 and 756 is that the Mental Health Act did not confer upon the appellant a statutory right to be given written reasons for the decision to issue the examination authority.  That conclusion is not significant for present purposes.  It is not a condition of the right to request reasons under the Judicial Review Act that the person requesting reasons is entitled to reasons pursuant to the Act under which a decision was made.
  15. [44]
    The primary judge considered that the appellant was not entitled to request a statement of reasons for the tribunal’s decision to issue an examination authority for the further reason that the decision had been superseded by the issue of the treatment authority on 18 June 2018 and also by the decision of the tribunal on 16 July 2018 to revoke the treatment authority.  The primary judge considered that this conclusion found support in Perry v Director of Public Prosecutions[9] and Deloitte Touche Tohmatsu v Australian Securities Commission.[10]
  16. [45]
    The applicant in Perry was aggrieved by a decision of a magistrate authorising her extradition to another State.  Upon her application in the Supreme Court of South Australia the judge who reheard the matter varied in part and otherwise confirmed the magistrate’s decision.  Fisher J held that the magistrate’s decision was not a “decision” for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) because for practical purposes the judge’s decision had superseded the magistrate’s decision and become the “operative” decision.  The applicant in Deloitte Touche Tohmatsu applied for an order of review in respect of a decision by the Australian Securities Commission that it was in the public interest for a company to commence proceedings against Deloitte.  Subsequently the Commission resolved that such proceedings be commenced and carried on in the name of the company.  Lindgren J held that Deloitte was not “aggrieved” by the first decision as to the public interest because that “decision” was overtaken by the decision to litigate: “All affection of [Deloitte’s] interests is attributable to the latter decision.”[11]
  17. [46]
    Lindgren J referred to two decisions concerning applications for review under the Commonwealth Act.  In Akers v Minister for Immigration and Ethnic Affairs[12] Lee J observed that a decision to refuse a temporary entry permit based upon an assessment of the merits of granting a permanent entry permit might be seen to be “entirely subsumed” in a decision to refuse the permanent entry permit.  In Eskaya v Minister for Immigration, Local Government and Ethnic Affairs[13] Lee J held that a decision not to grant an entry permit rendered an earlier decision not to grant such a permit “inoperative”.  Lindgren J also regarded as relevant a principle “that a person is not entitled to challenge an administrative decision on natural justice or other grounds where there has been a comprehensive appeal or review which has ‘cured’ any defect touching the earlier decision”.[14]
  18. [47]
    The “spent” or “inoperative” decisions in those cases are not analogous with the decision to issue the examination authority in relation to the appellant.  The decision to issue the examination authority was the only decision which enlivened the powers in ss 31 – 33 of the Mental Health Act.  As the appellant submitted, no subsequent decision reviewed the decision to issue the examination authority.  The treatment authority, which was subsequently made by an authorised doctor and reviewed by an authorised psychiatrist, authorised the involuntary treatment of the appellant for a mental illness only after that treatment authority was made.  Those medical personnel were not authorised by the Mental Health Act to conduct a rehearing of the application for the examination authority or to review the tribunal’s decision to issue it.  The treatment authority did not purport to cure and could not cure any defect in or otherwise affect the earlier decision by the tribunal to issue the examination authority.  The subsequent revocation of the treatment authority could have no bearing upon the continuing validity of the examination authority.
  19. [48]
    The third reason for the primary judge’s refusal to order the tribunal to give the appellant reasons for the tribunal’s decision to issue an examination authority was that s 37(1)(b) of the Judicial Review Act relieved the tribunal from any obligation to do so.  Section 36 applies “to information relating to a matter” if the Attorney-General certifies by signed writing that disclosure of the information would be contrary to the public interest because it would involve the disclosure of deliberations or a decision of Cabinet or a Committee of Cabinet (s 36(1)(a)) or “for any other specified reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed” (s 36(1)(b)).  The consequences of s 36 applying specified in s 37(1) are:

“(1) If a person has been requested under section 32 to give a statement to a person –

  1. (a)
    the person to whom the request is made is not required to include in the statement any information in relation to which section 35 or 36 applies; and
  1. (b)
    if the statement would be false or misleading if it did not include the information – the person is not required to give the statement.”
  1. [49]
    Section 37(2) provides that if the consequence of s 37(1) is that information is not included in a statement given by a person, or a statement is not given by a person, the person must give written notice relating to the request to the person who made the request.  Section 37(3) requires the notice to state, if s 37(1)(a) applies, that the information is not included and the reason for not including the information, and, if s 37(1)(b) applies, that the statement will not be given and the reason for not giving the statement.  By s 37(4), the notice must be given, if s 37(1)(a) applies, at the time the statement is given or, if s 37(1)(b) applies, as soon as practicable and in any event within 28 days after receiving the request.
  2. [50]
    The primary judge examined the draft statement of reasons, with redactions identifying the information said to have been captured by the Attorney-General’s certificate, without allowing the appellant to view the draft statement of reasons or the certificate.  The primary judge referred in that context to the endorsement of similar procedures in relation to public interest immunity claims in R v Kashani-Malaki,[15] Younan v Crime Reference Committee; Hamdan v Crime Reference Committee[16] and Masters v Corrective Services.[17]
  3. [51]
    The primary judge referred to the rationale for keeping confidential a Justices Examination Order (“JEO”) under the Mental Health Act 2000 (Qld)[18] explained by Thomas J in Z’Quessah Bosch v Office of the Information Commissioner & Anor:[19]

“Healthcare agencies rely on information provided by third parties to assist patient care and treatment.  Those third parties may be deterred from providing this type of information in the future if they are aware that it could be disclosed to the patient.  This could prejudice the ability of healthcare providers to effectively treat patients by reducing the likelihood that they have access to all the relevant information about the patient.”

  1. [52]
    The primary judge found that “were the tribunal required to furnish a statement of reasons relating to the examination authority, that may prejudice the ability of the tribunal to effectively determine the issue by reducing the likelihood the tribunal would have access to all relevant information, and further, that requiring the [tribunal] to furnish a statement of reasons (excluding the details the subject of s 36 certificate) would render the reasons false and misleading.”[20]
  2. [53]
    Section 36(1)(b) of the Judicial Review Act provides for the issue of a certificate by the Attorney-General that the disclosure of information would be contrary to the public interest only if the “reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed” is “specified”.  The substance of the specified reason appears from the reasons of the primary judge mentioned in the two preceding paragraphs of these reasons.  When the question whether the certificate should be disclosed to the appellant was raised at the hearing of the appeal, counsel for the first respondent did not wish to make a submission and counsel for the tribunal disclaimed a submission that the appellant should not be given the certificate.  The order preventing disclosure of the copy of the certificate exhibited to Ms McMullen’s affidavit sworn 14 December 2018 should be varied.
  3. [54]
    In that certificate the Attorney-General certified that “the disclosure of information relating to the decision of the Mental Health Review Tribunal, made on 14 June 2018, to issue an examination authority under the Mental Health Act 2016 in relation to [the appellant] would be contrary to the public interest for the following reason … Disclosure of information provided to the Tribunal in confidence or without notice to the person the subject of an application for an examination authority would place the safety and welfare of the informant, the person the subject of the application and the community at large at risk, and would therefore disrupt or be likely to disrupt the continuing flow of helpful information from informants generally to the Tribunal.”
  4. [55]
    After referring to that certificate the primary judge observed that the respondents were persons who in terms of s 37(1)(a) had been requested to provide a statement of reasons pursuant to s 32, and concluded that the respondents were therefore not required to include in any statement any information which relates to the Attorney-General’s certificate.  The primary judge noted that pursuant to s 37(1)(b) the respondents were persons who were not required to give a statement if it could be reasonably concluded that the statement would be false or misleading if it did not include the information and  stated that more than one third of the statement of reasons would need to be redacted to exclude the confidential information and the redaction would render the statement of reasons at least misleading, if not false.
  5. [56]
    Ground (ix) contends that the primary judge erred in law by holding that the Attorney-General had the jurisdiction to issue a certificate of prohibition to the tribunal and the first respondent.  The appellant submitted that the effect of s 705 of the Mental Health Act is that the tribunal is not subject to the direction or control of any minister and the role of the Attorney-General under the Mental Health Act is confined by s 737 of that Act to representing the public interest in proceedings where a mentally ill person is in custody or the subject of criminal proceedings.  For the reasons which follow, this ground should be rejected and the Court should not make the declaration sought in the notice of appeal that the Attorney-General’s decision to issue a certificate under s 36 of the Judicial Review Act in relation to the appellant’s request for reasons is void ab initio for want of jurisdiction.
  6. [57]
    Section 737 of the Mental Health Act is not and does not purport to be a comprehensive statement of the role of the Attorney-General in relation to proceedings under the Mental Health Act to the exclusion of any other statutory provision.  Section 705(1) describes the jurisdiction of the tribunal and s 705(2) provides that in exercising that jurisdiction (which includes hearing applications for examination authorities) the tribunal “must act independently” and “is not subject to direction or control by any entity, including any Minister”.  Section 37(1) of the Judicial Review Act does not purport to subject the tribunal to direction or control by the Attorney-General or to prevent the tribunal from acting independently in the exercise of its jurisdiction.  The decision about what information to provide is left to the decision-maker, which is merely “not required” to include in the statement information in relation to which s 36 applies or to give the statement at all if it would be false or misleading if that information were omitted.  Section 37(1) does no more than qualify the general obligation (which is subject to some exceptions) in s 33(1) of the same Act that a decision-maker to whom a request is made under s 32 must provide the requested statement of reasons to the person who made the request.
  7. [58]
    Grounds (viii) and (x) contend that the primary judge erred in law by applying a criminal law procedure in a civil matter in order to admit and rely on evidence that was not available to the appellant and by holding that s 37(1)(b) of the Judicial Review Act applied to the application.  The appellant argues that the process of admitting the statement of reasons and the Attorney-General’s certificate into evidence without disclosing the statement of reasons to the appellant was not consistent with s 37(1)(b) of the Judicial Review Act and, if it was consistent, s 37(1)(b) is not a valid law.
  8. [59]
    The appellant developed the first limb of that argument by the submission that ss 36 and 37(1)(b) should be construed in a way that is consistent with the role of the Attorney-General in protecting the public interest in the efficient operation of high levels of executive government, for which confidentiality of high level executive communications has been found to be necessary: Conway v Rimmer.[21]  That argument is not consistent with the language of s 36(1), which contemplates a certificate by the Attorney-General under paragraph (b) that disclosure of information would be contrary to the public interest for a reason other than the reason in paragraph (a) that the information is in certain high level executive government communications (“deliberations or a decision of Cabinet or a Committee of Cabinet”).
  9. [60]
    The appellant argued that various High Court decisions established that there is a necessary separation of powers between the Parliament, the executive arm of government, and the judicial arm of government.  The argument did not explain how this doctrine is relevant to the validity of ss 36 and 37 of the Judicial Review Act, which concern only the extent of the obligation created by the same Act for a decision-maker to give reasons for decisions of an administrative character.  In a different section of the appellant’s argument the appellant submitted, with reference to Kirk v Industrial Court (NSW)[22] and Church of Scientology Inc v Woodward,[23] that it is beyond the power of the Parliament to restrict the Supreme Court’s jurisdiction to review executive decision making for jurisdictional errors of law.  Sections 36 and 37 do not purport to restrict or have any effect of restricting that jurisdiction.
  10. [61]
    Contrary to ground (x), s 37(1)(b) of the Judicial Review Act was capable of application in the present case.  The decisions cited by the primary judge support the procedure he adopted in relation to the application of ss 36 and 37 of the Judicial Review Act to the draft statement of reasons.  Ms McMullen’s statement about the basis for the claim in her affidavit served upon the appellant (without the confidential exhibits) gave the appellant sufficient notice of the specified reason that could form the basis for a claim in judicial proceedings that information in the tribunal’s reasons for the decision should not be disclosed (see [5] of these reasons).  The appellant submitted that he was not advised about the nature of the public interest immunity claim by the tribunal until four days before the hearing before the primary judge.  Upon the face of it, that was sufficient time for the appellant to prepare a submission and, as he acknowledges, he did make a submission at the hearing that public interest immunity afforded to informers under criminal law was distinguishable.
  11. [62]
    As the appellant argued, the cases cited by the primary judge about the appropriate procedure were not cases involving a ministerial certificate.  What was in issue in those cases was the result of the balancing process required to decide whether the evidence should be excluded on the ground that it was injurious to the public interest, with the result that a decision would be made on less than all of the available evidence.  Sections 36 and 37 do not authorise a balancing process.  Section 37 automatically applies in relation to a certificate under the directly relevant provision here, s 36(1)(b), upon the footing that the certificate specifies a reason “that could form the basis” for a public interest immunity “claim” in a court.  The common factor is that disclosure to a party of information claimed or certified to be injurious to the public interest for the purpose of allowing that party to formulate arguments in a proceeding would render the claim or certificate ineffective before any adjudication upon the arguments.  The procedure adopted by the primary judge was appropriate to avoid that result.
  12. [63]
    The appellant argued that the Judicial Review Act manifested an intention that a refusal of a decision-maker to comply with a request for reasons under s 32 of that Act on the basis of the exceptional grounds in s 36 and 37 is justiciable.  Adapting that submission to the statutory language, I accept that three questions may be litigated: whether there is a reason specified in a certificate under s 36(1)(b) that could form the basis for a claim in a judicial proceeding that the information should not be disclosed; whether particular information in a statement of reasons is information in relation to which s 36 applies in terms of s 37(1)(a); and whether the statement would be false or misleading if it did not include the information in terms of s 37(1)(b).  It is arguable that the first of those questions could be litigated only in a proceeding to which the Attorney-General is a party, but it is not necessary to decide that point.  The primary judge’s analysis (see [51] and [52] of these reasons) demonstrates that the reason specified in the Attorney-General’s certificate could form the basis for a claim in a judicial proceeding that the information should not be disclosed, in terms of s 36(1)(b).  Section 37 operated according to its terms.
  13. [64]
    Accordingly, by s 37(1)(a) the tribunal was not required to include in the statement any information provided to the tribunal in confidence or without notice to the appellant such as might identify a person who supplied such information.
  14. [65]
    Counsel for each respondent accepted that this Court should undertake the same exercise conducted by the primary judge for the purpose of deciding whether the primary judge was in error in considering that the redactions appropriately gave effect to the certificate and that under s 37(1)(b) the draft reasons would be false or misleading if they did not include the redacted information.  Both questions require evaluative decisions upon which reasonable minds might differ.  In relation to the first question my view differs from that of the primary judge only in limited respects.  Because an identification of the differences necessarily involves revealing information that I consider should be redacted, the following paragraph of these reasons will be made available only to the respondents.
  15. [66]
    [Redacted].
  16. [67]
    The remaining question about this topic is whether the absence of the redacted information from the statement of reasons would render it false or misleading with the result that the tribunal is not required to give the statement under s 37(1)(b).  The primary judge’s concern about the effect of the extent of the necessary redactions of the statement of reasons may be satisfied by making the redactions in a way which reveals their extent, as is commonly done in similar cases by black masking of the redacted text.  In my view the resulting statement of reasons will not give a false or misleading impression, in part for the very reason that any reader will appreciate that a substantial part of the reasoning is masked.

Other grounds of appeal

  1. [68]
    Grounds (iv) and (v) (which are potentially relevant only in relation to the first respondent) contend that the primary judge erred in law by holding that decisions made under chapter 2 of the Mental Health Act are not of an administrative character and that the reasons given in a treatment authority made under the Mental Health Act constitute a statement of reasons for the Judicial Review Act.  I do not find it necessary to discuss these grounds because I would hold that the appeal in relation to decisions attributed to the first respondent fails for other reasons.
  2. [69]
    Ground (vii) contends that the primary judge erred in law by dispensing with the attendance for cross-examination of a person who made an affidavit that was relied on at the hearing.  Before the hearing in the Trial Division the appellant gave a notice under the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) that he wished to cross-examine the deponent of an affidavit to be relied upon by the tribunal, Ms McMullen, the president of the tribunal.  Rule 439(1) of the UCPR provides that the Court may order a person making an affidavit to be relied upon at a hearing to be examined and cross-examined before the Court.  Rule 439(5) provides that the Court may dispense with the attendance for cross-examination of a person making an affidavit and direct that an affidavit be used without the person making it being cross-examined in relation to the affidavit.
  3. [70]
    At the hearing the primary judge asked the appellant to indicate the topics upon which he wished to cross-examine Ms McMullen.  The appellant indicated that he proposed to ask her questions about the reasons why the Attorney General’s certificate was issued.  The primary judge ruled that the person who could give evidence about the reason for the issue of the certificate was the Attorney-General, not Ms McMullen.  I would add that the certificate speaks for itself in any event.
  4. [71]
    The appellant also initially indicated to the primary judge that he wished to ask questions about whether the tribunal had listened to audio recordings because such recordings involved a criminal matter under the Invasion of Privacy Act 1971 (Qld) which could not be the subject of an immunity.  It appears that the appellant did not persist in that submission after the primary judge ruled that he would not allow the appellant to cross-examine Ms McMullen as to why the Attorney-General issued the certificate.  The proposed line of questioning would have no relevance to the issue whether the tribunal was obliged to provide reasons for its decision to issue an examination authority.  I note also that the only alleged offence suggested by the appellant’s submission is an offence against s 43(1) of the Invasion of Privacy Act, an element of which is the use by a person of a listening device to (relevantly) record a “private conversation”.  A requirement of that definition is that there be words spoken by one person to another person in certain circumstances.  The definition excludes words spoken by one person to another person where “either of those persons” ought reasonably to expect the words may be recorded by a person who does not have the consent “of either of those persons to do so”.  The evidence supplies no reason for thinking that any person might have recorded a “private conversation”.  The appellant has not demonstrated that there was any error in the discretionary decision by the primary judge to allow Ms McMullen’s affidavit to be relied upon without the appellant being permitted to cross-examine her.
  5. [72]
    The preceding paragraph explains why it would be inappropriate to make the order sought in the notice of appeal that evidence obtained in contravention of the Invasion of Privacy Act and/or the Information Privacy Act 2009 (Qld) and/or the Mental Health Act 2016 (Qld) was not admissible at the tribunal hearing on 14 June 2018 and must be disclosed to the appellant.
  6. [73]
    Ground (xii) contends that the legal relationship between the tribunal, the first respondent, the Crown Solicitor, and the Attorney-General has given rise to a potential and perceived conflict of interest.  The appellant developed an argument to the effect that the solicitor/client relationships between Crown Law and each of the Attorney-General and both respondents created a conflict between the interests and duty of each party in a way that engaged the equitable principle that a trustee must not place itself in a position where its duty and interest may conflict.  I accept the submissions by both respondents that ground (xii) does not raise an issue that is relevant to the decision of the primary judge.  There is no basis for making the declaration sought in the notice of appeal that the solicitor/client relationship between the respondents and their legal representatives has given rise to a potential conflict of interest between the respondents, Crown Law, and the executive government.

Disposition and orders

  1. [74]
    I would hold that the appeal succeeds only to the extent that the tribunal should be ordered to give reasons, redacted in the way I have indicated in [66] of these reasons, for its decision to issue an examination authority.  In addition to the orders already mentioned, the appellant sought an order that “The Mental Health Service” (presumably a reference to the first respondent) provide the appellant with the details of the information that has been provided to it by the private doctors who are treating the appellant for personal injuries sustained in a motor vehicle accident.  No basis in law for such an order was articulated and it should not be made.
  2. [75]
    The appellant applied for leave to adduce further evidence, namely (1) the form of application for an examination authority and (2) correspondence from the lawyers for the tribunal to the appellant which enclosed two affidavits by Ms McMullen (not including the exhibits which were made confidential).  The form does not add anything to the form of the application for the examination authority already in evidence and the affidavits of Ms McMullen are already in evidence, albeit that they were not included in the record book.  This application should be refused for the reason that it is not necessary to receive that evidence in order properly to consider the appellant’s arguments.
  3. [76]
    I would make the following orders:
    1. (a)
      Allow the appeal against the order dismissing the appellant’s application made on 8 February 2019 in so far as that order dismissed the application in relation to the decision of the second respondent to issue an examination authority relating to the appellant.
    2. (b)
      Order that within 14 days of the pronouncement of this order the second respondent provide to the applicant a written statement containing the reasons for the decision to issue an examination authority in relation to the applicant, except that the second respondent is not required to include in the statement information redacted as indicated in the draft statement of reasons in Exhibit “AM-3” to the affidavit of Ms Annette McMullen sworn on 14 December 2018 amended as described in [66] of the reasons for judgment of Fraser JA.
    3. (c)
      Refuse the appellant’s application filed on 15 July 2019 for leave to adduce further evidence.
    4. (d)
      Vary order number 1 in the orders made by Crow J on 21 December 2018 by adding at the end of that order the text “, except that the certificate of the Attorney-General attached to that affidavit and marked ‘AM-2’ is not to be kept in the sealed envelope but is to be placed on the Court’s file.”
  4. [77]
    McMURDO JA:  I agree with Fraser JA.
  5. [78]
    APPLEGARTH J:  I agree with the reasons of Fraser JA and the orders proposed by his Honour.

Footnotes

[1]  Reasons [32], [34], [40], and [41].

[2]  (1990) 170 CLR 321 at 337.

[3]  (2005) 221 CLR 99 at 130 [89].

[4]  (1985) 159 CLR 550 at 584.

[5]  159 CLR 550 at 584 – 585.

[6]  159 CLR 550 at 585.

[7]  The primary judge referred to ss 115, 418, 439, 460, 471, 487, 500, 508, 511, 516, 524, and 674.

[8] Saraswati v The Queen (1991) 172 CLR 1 at 17 (Gaudron J) quoted with approval in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [4] (Gleeson CJ) and at [18] (Gummow and Hayne JJ); and see Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276 – 277 (Fullagar J) and at 290 – 291 (Windeyer J).

[9]  (1985) 6 FCR 578.

[10]  (1995) 54 FCR 562.

[11]  54 FCR 562 at 576.

[12]  (1988) 20 FCR 363 at 371.

[13]  (1989) 18 ALD 217.

[14]  54 FCR 562 at 577.

[15]  [2010] QCA 222 at [53].

[16]  [2012] QSC 225 at [37].

[17]  (2001) 121 A Crim R 173.

[18]  A JEO was the predecessor of and equivalent in effect to an examination authority under the current legislation.

[19]  [2016] QCATA 191 at [57].

[20]  Reasons [100].

[21]  [1968] AC 910 at 952 and Sankey v Whitlam (1978) 142 CLR 1 at 97 – 98.

[22]  (2010) 239 CLR 531 at 581 [99].

[23]  (1982) 154 CLR 25 at 55, 56.

Close

Editorial Notes

  • Published Case Name:

    MDF v Central Queensland Network Authorised Mental Health Service & Anor

  • Shortened Case Name:

    MDF v Central Queensland Network Authorised Mental Health Service

  • MNC:

    [2020] QCA 108

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Applegarth J

  • Date:

    26 May 2020

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status