Marzini v Health Ombudsman[2018] QCAT 393

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant commenced proceedings seeking to review the decision of the respondent to take immediate action against the applicant pursuant to s 58 of the Health Ombudsman Act 2013 (Qld) (HO Act). 
2. [2]
   The immediate action decision, imposing conditions on the applicant limiting his scope of practice in relation to the injection of Ozone gas into any part of the body, was taken on 21 November 2017 following the receipt of a complaint on 30 October 2017.  The review proceedings were commenced by the applicant on 19 December 2017.
3. [3]
   The immediate action decision of the respondent was revoked by the respondent on 24 May 2018.
4. [4]
   The applicant has brought an application pursuant to s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) seeking that the Tribunal make an order requiring the respondent to pay his costs on an indemnity basis (the application for costs).  An order for costs can be made by the Tribunal if the Tribunal considers the interests of justice require the making of the order.  Such order can be to pay all or a stated part of the costs of another party. 
5. [5]
   The applicant further makes an application for leave to amend the application for costs to include an application for compensation from the State of Queensland pursuant to s 232 of the HO Act (the application for compensation). 
6. [6]
   As part of the application for costs, the applicant seeks the production by the respondent of the following documents:

Schedule of Required Documents not provided with the Bundle of Evidence and referred got [sic] in the Chronologies exhibited in the Affidavits of both witnesses

1. 9th Nov 2017.  Copies of all materials available to the Delegate, such as all documents, notes, records and transcripts of any interviews with Dr Schwindack or other witnesses which evidence what due diligent action was conducted before the decision was made.

2.  21 November 2017   copies of all material including notes and memos, correspondence between the Health Ombudsman and the staff of the OHO prior to making the decision of immediate registration action.

3. 30 January 2018 copy of all material and communications between the OHO and the TGA in relation to this matter.

4. 9th February 2018  copy of all material and communications between the OHO and  the Australian Border Force.

5. 20 and 27 February 2018  copies of all audio recordings and transcripts of the interviews of Christian Schwindack by the OHO.

6. 26 February2018  copy of all communication between South Coast Radiology and the OHO in regards to “OTHER  WITNESSES”.

7. 13th March 2018  all notes and statements in regards to the communication between Chelsea Rosetta and the OHO.

8. March – April 2018  a list of all the Experts the OHO contacted, all correspondence and notes regarding these communications

9. 10th April 2018 and 1st of May 2018 all correspondence, reports and notes to and from Dr Peter Dohrmann and Dr Wardle in regards to this case.

10.  17th and 21st of May 2018   copy of the request from the OHO and the response of Equifax and all notes and correspondence

11.  24th May  2018 copies of recording, transcrits [sic] and notes regarding the teleconference between Dr Wardle and the OHO on 24/5/18

12. All correspondence and notes between OHO and TGA and APHRA [sic] regarding the applicant.

These are collectively referred to by the parties as “the requested documents”. 

7. [7]
   In support of his application for costs (and the application for compensation if leave be granted), the applicant refers to the conduct of the Health Ombudsman in accepting the complaint and making the initial decision to take immediate action and to the conduct of the Health Ombudsman in conducting the investigation.  In support of his application, the applicant refers to and details matters said to fall within the various sub-paragraphs of s 102(3) of the QCAT Act.  
8. [8]
   The application for the production of the requested documents, as part of the respondent’s application for costs, is opposed by the respondent.  The respondent does not dispute that the Tribunal has power to make a direction requiring a party to a proceeding to produce documents.  The respondent says that power is discretionary and must only be exercised “if it is in the interests of justice to do so and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense”.^[1]
9. [9]
   The respondent says that, given the substantive issue has been resolved, the applicant has failed to identify how the requested documents, if they exist, are relevant to determine the matters in dispute. 
10. [10]
    The respondent acknowledges that the requested documents are based on the chronology exhibited to the affidavit of Steven Martin dated 25 September 2018.  It is accepted that some of the requested documents have already been provided in compliance with the respondent’s obligations under s 21 of the QCAT Act.  The respondent says the request essentially “seeks the balance of the respondent’s entire investigation file and more specifically, the file as it relates to the decision and the gathering of information from witnesses, doctors and organisations”.^[2] 
11. [11]
    The respondent submits those documents do not assist the Tribunal in deciding an application under s 102 of the QCAT Act and further that the request is a fishing expedition and oppressive.  The respondent says that preliminary searches indicate that approximately 470 individual documents respond to the request and that would equate to in excess of 1,500 individual pages. 

Discussion

12. [12]
    Pursuant to s 62(3) of the QCAT Act, the tribunal may give a direction requiring a party to a proceeding to produce a document.  A party must comply with a direction to produce a document within the time stated in the direction unless there is a valid claim to privilege from disclosure.^[3]
13. [13]
    The power of the tribunal is discretionary and it is well established that the documents must be sufficiently particularised, relate to the issues in dispute and the application must not be used to engage in a fishing expedition.^[4]
14. [14]
    It is clear from the submissions on behalf of the respondent that the request is sufficiently clear to enable the documents to be identified. 
15. [15]
    In determining the application for costs, by reference to the submissions already filed, it is clear that the applicant is challenging whether the Health Ombudsman, at the time of making its original decision, formed a reasonable belief as required by s 58 of the HO Act.  Further, it is clear that the applicant wishes to challenge the manner in which the Health Ombudsman conducted the investigation that followed, including whether the Health Ombudsman should have revoked the immediate action decision at an earlier point in time.
16. [16]
    Having regard to the documents requested, it is clear the documents are relevant to a determination of those issues and a direction should be made for their production. 
17. [17]
    However, given the obligations of the tribunal, there are relevant considerations as to the costs of producing them.  The Health Ombudsman should not be required to create a list of the documents to be produced but merely to produce the bundle of documents in sealed envelopes to the tribunal registry so as to enable the applicant to attend at the tribunal registry to inspect the documents. 
18. [18]
    In complying with the direction for production, the Health Ombudsman is not required to produce any documents already provided to the applicant in compliance with its obligations under s 21 of the QCAT Act.
19. [19]
    In producing any documents, if the Health Ombudsman maintains there are any issues of confidentiality or privilege, then the Health Ombudsman must bring an application in respect of any such documents.
20. [20]
    Following the inspection of the documents, the applicant will be required to identify any documents in respect of which copies are required and must pay the costs to the tribunal of the copying of any such documents.

Orders

21. [21]
    Accordingly, the Tribunal orders that:

1. The respondent is to produce to the tribunal registry, in sealed envelopes, any documents in its possession answering the description of the documents referred to in paragraph 6 of the tribunal’s reasons by 4.00 pm on Monday, 3 December 2018.
2. The documents produced in accordance with order 1 of these orders may be inspected by the applicant at a time to be agreed with the tribunal registry at any time after 9.00 am on Tuesday, 4 December 2018.
3. The applicant is to clearly identify any document/s which he requires to be copied.
4. The applicant must pay the tribunal’s reasonable costs of copying any such document/s.