Queensland Newspapers Pty Ltd v Medical Board of Australia
[2015] QCAT 422
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- Unreported Judgment
- Queensland Newspapers Pty Ltd v Medical Board of Australia[2015] QCAT 422
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Queensland Newspapers Pty Ltd v Medical Board of Australia[2015] QCAT 422
Queensland Newspapers Pty Ltd v Medical Board of Australia[2015] QCAT 422
CITATION: | Queensland Newspapers Pty Ltd v Medical Board of Australia & Bird [2015] QCAT 422 |
PARTIES: | Queensland Newspapers Pty Ltd |
| v |
| Medical Board of Australia And |
APPLICATION NUMBER: | OCR117-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 7 November 2014 |
HEARD AT: | Brisbane |
DECISION OF: | His Honour Judge Horneman-Wren SC, Deputy President |
DELIVERED ON: | 9 October 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – OTHER MATTERS – where non-publication order made – where no order made as to filing redacted material as per practice direction – where media representative sought order for redacted material to be filed – whether the principle of open justice outweighs the burden on the parties to the proceedings in redacting material – whether patients health and safety endangered if orders made – where principle of open justice outweighs burden – where patients health and safety not endangered – where orders made to redact material and file redacted material Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66, s 230 Medical Board of Australia v Bird [2014] QCAT 411. Pearse v Medical Board of Australia [2013] QCAT 392. |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Ms L Mullins of Queensland Newspapers Pty Ltd |
RESPONDENT: | Ms K A McMillan QC instructed by Rodgers Barnes & Green |
RESPONDENT: | Ms K R Mellifont QC instructed by Moray & Agnew Lawyers |
REASONS FOR DECISION
- [1]On 22 August 2014 the Tribunal delivered its reasons for the making of a non-publication order in these proceedings, pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The order was made in the following terms:
- Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
- a)the contents of a document or other thing produced to the Tribunal; and
- b)evidence given before the Tribunal;
that could identify any patients, with the exception of Anthony Thomson, is prohibited, save as is necessary for the parties to engage in and progress these proceedings.
- Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
- a)the contents of a document or other thing produced to the Tribunal in the application for miscellaneous matters filed 18 June 2014; and
- b)evidence given before the Tribunal in the application for miscellaneous matters filed 18 June 2014;
that may enable any patients of Dr Bird to be identified is prohibited.
- [2]Subsequently, an Application for miscellaneous matters was filed by Queensland Newspapers Pty Limited. Queensland Newspapers is the publisher of The Courier Mail and www.couriermail.com.au and were granted leave for the purposes of hearing this Application.
- [3]The Application seeks the Tribunal direct that the Medical Board of Australia and Dr Phillip Bird file redacted versions of any document filed in, or other thing produced to, the Tribunal in these proceedings which removes any material which could identify any of Dr Bird’s patients except Anthony Thompson. The same direction is sought in relation to the material produced to the Tribunal in these proceedings that related to the application for miscellaneous matters filed 18 June 2014 upon which the non-publication order was made. The application seeks that the Tribunal then further direct the original filed material be sealed and marked “Not to be copied or inspected without order of the Tribunal”.
- [4]Queensland Newspapers seeks these particular orders so as to access the material on the registry file, as redacted, for the purposes of fair and accurate reporting of these proceedings.
- [5]It submits that such orders are consistent with Direction 11 of Practice Direction No. 6 of 2011, and which the Tribunal did not observe in its decision of 22 August 2014. Direction 11 of Practice Direction No. 6 of 2011, in the form which it took at the time the non-publication order was made, provided that:
Where the Tribunal makes a non-publication order it will make the further directions that:
The parties must file in the Tribunal a redacted version of any material they have filed in the proceedings, which removes any material which may not be published pursuant to the non-publication order made by the Tribunal;
The original version of the material filed in the tribunal will be sealed and noted “Not to be coped or inspected without order of the Tribunal”.
- [6]Ms Mullins for Queensland Newspapers advances the principal submission that the documents should be made available to the public and that any prevention of this goes beyond the power granted by virtue of section 66 of the QCAT Act. Ms Mullins relies on the principle of open justice, in that documents should be publicly available to show on what basis the Tribunal makes its decisions in matters such as these, referring to the tribunal’s decision in Pearse v Medical Board of Australia.[1]
- [7]She submits, correctly in my view, that it is not for Queensland Newspapers to establish that the public interest is served by open justice. Rather it is for those seeking a non-publication order to establish why it ought be made.
- [8]Ms Mullins proposes two possible courses of action the tribunal could take. The first is that the proposed direction be made as outlined in the application, that being further directions made in accordance with Direction 11 of Practice Direction No. 6 of 2011. The second is that there be no redacted material filed and the un-redacted file as is available to the public for inspection. Such public inspection, Ms Mullins submits, would be done by those of the public with the understanding that they are required to comply with the non-publication order made. That is, in essence, she submits that prohibition of publication under a non-publication order under s.66 of the QCAT Act does not extend to inspection of documents in the registry.
- [9]This latter submission can be dispensed with at the outset. It is based upon a construction of “publication” in s 66 being confined to some broad public dissemination of the material, as by a newspaper of on the internet, and not including publishing the material to a person inspecting the registry file. Such a construction is contrary to both the ordinary meaning of publication and s 230(4) of the QCAT Act.
- [10]Neither the Board not Dr Bird referred to the practice direction on the hearing of the application for a non-publication order. Each had sought such an order. Dr Bird has proposed an order broader than that which was made.
- [11]Both the Medical Board of Australia and Dr Bird oppose this application on the basis that, given the nature of these proceedings, the complexity of the issues, the volume of the material and the fact that Dr Bird practices within a particular sub-specialty in a fairly small geographical area, to properly comply with the proposed orders, if it is at all possible to comply, would be a significant undertaking that would impose a significant cost and time impost on the parties.
- [12]The Board proposed alternative orders to those sought by Queensland Newspapers, the effect of which would be that the parties would filed redacted versions of the referral and Form 36 response, respectively filed by each already, and that there be a broader, more general, non-publication order than that presently in place which would prohibit the publication of the contents of any document before the Tribunal, any evidence given before the tribunal, and any information that may enable the identification of a person who has appeared before the Tribunal. With some minor modification, Dr Bird agrees with the orders proposed by the Board.
- [13]Both the Board and Dr Bird put on affidavits by their respective solicitors as to the volume of material involved in the case and the difficulties associated with redacting it in a way which would comply with the current non-publication order.
- [14]Dr Bird’s solicitor deposes to the medical records relating to the 11 patients the subject of the current non-publication order running to approximately 16,000 pages, and to the medical reports obtained in respect of them running approximately 11,000 pages. She deposes to the process of redacting them being “exceedingly onerous –both in terms of cost and time –one which carries with it the risk that information might be retained which inadvertently reveals the identity of the patients”.
- [15]The Board’s Solicitor deposes to his expectation to receive instructions to seek agreement with Dr Bird on the documents to comprise a bundle of agreed documents to be filed in the proceedings, including the files of the 11 patients. He deposes to the records of those 11 patients comprising approximately 36 lever arch folders. There is, however, no evidence as to the extent to which the documents comprising those 36 folders may be relevant to the issues in these proceedings. The fact that they relate to the patients does not make them so; yet that seems to be the assumption underlying the evidence. All too often in proceedings such as these, vast numbers of documents comprising medical records of patients are filed as agreed documents only for their relevance never to be established and only for a fraction of the documents to be referred to, if they are referred to at all.
- [16]In a matter such as this, those representing the parties must exercise judgment in ensuring that only those documents truly relevant to the issues in contention are placed before the Tribunal.
- [17]The evidence of the solicitors for both the Board and Dr Bird proceeds from a false assumption; that all of the documents to which they refer will require the process of redaction to be undertaken. That is not so. Only those relevant to the contentious issues and which are necessary to advance the parties’ respective cases will need to go through the process of redaction.
- [18]To the extent that the process of identifying those documents which are relevant may be onerous, that is not a function of the non-publication order: it is a function of the ordinary requirement that legal advisors exercise their skill and judgment and, with a discerning eye, critically isolate those documents truly relevant to the issues. This is not a matter in the general review jurisdiction of the tribunal in respect of which s.21(2)(b) requires a decision maker to provide the tribunal with any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision. Different considerations may apply in such a case.
- [19]I accept that the redaction of relevant documents may involve more than the obliteration of names, addresses, dates of birth, occupations and the like to prevent the disclosure of the identity of the patients. I accept that some documents may be heavily, or even completely, redacted. I do not, however, accept, as the Board submits, that the public interest served through open justice loses utility if that occurs. That public interest would remain served, as best it can be, whilst also serving the protective needs identified in s 66(2) of the QCAT Act: in this case, avoiding endangering the physical or mental health or safety of persons, or avoiding the publication of confidential information which would be contrary to the public interest.
- [20]To accept the Board’s submission in that regard would be to prohibit publication for reasons other than those permitted under s 66(2). The Tribunal does not have power to do so.
- [21]Nor do I accept the Board’s submission that “There is nothing that prevents a media organisation knowing of the progress of the matters by looking at the orders your Honour makes”. Procedural orders would provide very little, if any, understanding of the issues in the proceedings. Whilst access to redacted versions of the pleadings will provide some understanding of the issues, open justice requires that the evidence canvassing those issues is also available to the public.
- [22]In the course of the hearing, some issues concerning patient safety which had been dealt with in the Tribunal’s earlier reasons were, to an extent, revisited. One such matter raised by the Tribunal was whether evidence relating to a patient which had been redacted in such a way as to prevent the identification of that person by anyone other than the patient himself or herself, if it were published, may nevertheless endanger the physical or mental health and safety of the person.
- [23]I am not satisfied that there is evidence, generally or in respect of any particular patient, which establishes that this is or may be so. As the earlier reasons of the tribunal noted, the patients themselves have an interest in the proceedings.
- [24]For these reasons, the further orders proposed by the Board prohibiting the contents of documents and things produced to the Tribunal, and any evidence given before it, in the future should be refused.
- [25]There is no basis, at least not at this stage of proceedings, to grant the further order proposed by the Board prohibiting the publication of information which may enable a person who has appeared before the Tribunal to be identified. Such an order would extend, for example, to expert witnesses who, it would seem, are likely to give evidence. There is no reason, at least not established at this time, which would occasion the publication of their identities to be suppressed. Issues may arise in respect of particular witnesses, but those are matters for the future.
- [26]In my view, the parties should be required to comply with Direction 11 of Practice Direction 6 of 2011 in the form in which it existed at the time of which the non-publication order was made. They should be required to file a redacted version of all documents which they have filed to date which removes any material which may not be published pursuant to the non-publication order made by the Tribunal on 22 August 2014.
- [27]In respect of any documents filed in the Tribunal in the future, including any affidavit evidence, the parties must file redacted versions which may not be published pursuant to the non-publication order made by the Tribunal on 22 August 2014.
- [28]The original versions of all material filed in the Tribunal will be sealed and noted “Not to be copied or inspected without order of the Tribunal”.
- [29]Queensland Newspapers also seek an order requiring the parties to file redacted copies of the material filed in relation to the earlier application for a non-publication order. The Tribunal made that order, as it is able to do under s 66(3), of its own initiative. It did so, as the earlier reasons state, because of the personal and sensitive nature of the evidence and submissions before the Tribunal on the occasion.
- [30]The information contained in that material is highly personal to certain patients and goes to their mental health and concerns Dr Bird has for their safety. It goes beyond the issues in dispute in the substantive proceedings.
- [31]I will order, generally, that redacted versions of all documents filed in respect of the non-publication order application be filed and the originals placed in a sealed envelope. However, I also specifically will order the full redaction of paragraphs 12 to 34 inclusive of the affidavit of Phillip David Bird filed on 11 July 2014, and the redaction of exhibits PB-4; PB-5 and PB-6 to that affidavit.
- [32]I will also specifically order the redaction of paragraphs 8 to 10 inclusive, including footnotes 4 to 8 inclusive, of the Board’s Submissions in Reply filed 18 July 2014.
Footnotes
[1] [2013] QCAT 392.