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CITE

Unreported Judgment

Health Ombudsman v Gascard (No.2)[2022] QCAT 300Judge Dann and Deputy President
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Health Ombudsman v Gascard (No.2)[2022] QCAT 300

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v Gascard (No.2) [2022] QCAT 300
PARTIES:	director of proceedings on behalf of the health ombudsman (applicant) v lauren michelle gascard (respondent)
APPLICATION NO/S:	OCR226-19
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	29 August 2022
HEARING DATE:	29 August 2022
HEARD AT:	Brisbane
DECISION OF:	Judge Dann, Deputy President
ORDERS:	The application is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the matter was finalised and reasons published previously – where the respondent made an application for a non-publication order two years later – where the applicant opposes the application – where the respondent must show grounds to re-open the proceedings – where the respondent is out of time to re-open the proceedings – whether there is sufficient grounds to re-open the proceedings ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent has applied for a non-publication order after the matter was finalised – where the applicant opposes the non-publication order – whether a non-publication order should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 61, 66, 125, 133, 135, 138 Queensland Civil and Administrative Tribunal Rules (2009)(Rules) r 92 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 Health Ombudsman v Shermer (No 2) [2019] QCAT 54 John Fairfax Group Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Legal Services Commissioner v CBD [2011] QCAT 401 LSC v XBV [2018] QCAT 332 Medical Board of Queensland v Mallon [2010] QCAT 311 NCK v A (Qld) Pty Ltd and Ors [2013] QCAT 111
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

[1]
The respondent has applied for a non-publication order for “documents – Queensland Judgements Application Number OCR226-19.” This application is opposed by the Director of Proceedings on behalf of the Health Ombudsman.

Background

[2]
This matter commenced before the Tribunal as a disciplinary proceeding against the respondent practitioner in relation to practice as an enrolled nurse. It was originally listed for a Tribunal Hearing before a Judicial Member of the Tribunal on 25 March 2020.
[3]
A review of the Tribunals file shows: on 24 March 2020, the applicant wrote to the Tribunal advising that:
1. (a)
  the applicant was prepared to proceed with the hearing on 25 March 2020 and the respondent would not be attending the hearing either by phone or in person.
2. (b)
  the applicant filed an affidavit in the Tribunal that same day, annexing the correspondence from the respondent dated 19 March 2020 confirming many aspects of the matter addressed in her submissions and that she saw no gain or loss in continuing to engage in the process; and
3. (c)
  consequent upon the Tribunal considering the contents of the affidavit, parties were advised on 24 March 2020 that the matter was then listed for determination on the papers.
[4]
The Tribunal’s decision was dated 25 March 2020 and provided to parties via email later that afternoon. The reasons for that decision were provided to parties on 29 July 2020 and published on the Supreme and District Court library on 30 July 2020. The Tribunal ordered in the following terms:
1. The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct, in that she engaged in conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
2. The Tribunal reprimands the respondent.
3. The parties bear their own costs of the proceedings.
[5]
More than two years after the finalisation of the matter, on 27 April 2022, the Tribunal received an application by the respondent for a non-publication order in relation to the decision of 25 March 2020. The basis of the application was that:
1. (a)
  the decision is detrimental and harmful to her professional and personal life;
2. (b)
  public availability of the decision which contains details of her sexual history is detrimental to her work as a volunteer sports coach;
3. (c)
  the decision is damaging to her business and professional image as a personal trainer;
4. (d)
  details of her sexual history are damaging to her reputation; and
5. (e)
  publication of these details may impact her financial position and ability to earn an income.
[6]
The Tribunal may publish its decisions, so far as they do not contain any information the subject of a non-publication order^[1] and it is usual practice for decisions of this nature to be published.

Issues for the Tribunal’s determination

[7]
The application raises two issues for determination:
1. (a)
  whether the Tribunal has power to grant an application for a non-publication order after the finalisation of the matter; and
2. (b)
  whether the respondent has shown the non-publication order is necessary.

The legislative scheme

[8]
Section 66(1) of the QCAT Act confers power on the Tribunal to make an order prohibiting the publication, other than in the way and to the persons stated in the order, of:
1. (a)
  the contents of a document or other things produced to the Tribunal;
2. (b)
  evidence given before the Tribunal;
3. (c)
  information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.
[9]
Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so:
1. (a)
  to avoid interfering with the proper administration of justice; or
2. (b)
  to avoid endangering the physical or mental health or safety of a person; or
3. (c)
  to avoid offending public decency or morality; or
4. (d)
  to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
5. (e)
  for any other reason in the interests of justice.
[10]
This provision gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.^[2] Having said that, the exercise of the discretion pursuant to s 66(1) of the QCAT Act is informed by the paramount principle of open justice.^[3]
[11]
The party seeking the non-publication order must satisfy the Tribunal it is necessary.^[4]
[12]
The Tribunal’s power to make a non-publication order falls within Part 6 Division 1 of the QCAT Act which is entitled “Other Provisions about a Proceeding – Procedural Powers”
[13]
Section 66(3) of the QCAT Act provides that

The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.

[14]
Schedule 3 of the Act defines a “proceeding” relevantly as:

(a) generally—means a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal; or

…

[15]
A “final decision” of the Tribunal in a proceeding by definition is one that finally decides the matters the subject of the proceeding:^[5] It is clear that the decision provided to parties and the reasons for which the decision was made is a “final decision” under the QCAT Act as it finally decided the matters the subject of the original application.
[16]
It therefore follows that the respondent is no longer a party to the proceeding as there is no proceeding before the Tribunal. Consequently, the respondent cannot apply for a non-publication order under s 66 of the Act.
[17]
Where a final decision has been made the Tribunal may:
1. (a)
  renew the decision;^[6]
2. (b)
  correct the decision;^[7] or
3. (c)
  re-open the proceeding.^[8]
[18]
The issues raised in by the respondent in seeking the non-publication order provide no basis for the Tribunal to act to renew the decision or correct the decision. The respondent does not complain of any error in the decision. Therefore, the respondent must satisfy the Tribunal it should re-open the proceeding.

Power to Re-open Proceedings

[19]
The current application for a non-publication order was made by a form 40 application for miscellaneous matters. An application for reopening, correction, renewal or amendment can be made under a form 43 application.
[20]
Although the respondent has not filed a form 43 application, she has filed further submission on 3 June 2022 titled “New Evidence and Grounds for Re Opening or Proceedings (sic).”
[21]
The Queensland Civil and Administrative Tribunal Rules (2009)(Rules) provide that any application under s 138 of the QCAT Act to reopen, must be made in the approved form (form 43) and within 28 days of the relevant day.^[9] The relevant day is 29 July 2020, the day on which parties were provided with the reasons,^[10] unless the Tribunal provides relief from the procedural requirement to file within that time.^[11]
[22]
Thus, the respondent could only proceed with an application for a non-publication order by way of a ‘re-opening’ if the Tribunal determined it should act to extend time.
[23]
Whether the Tribunal should extend the time limit to re-open is a redundant consideration if the order itself is not necessary.
[24]
I therefore will consider that aspect of the application.

Whether a Non-Publication order is necessary

Respondent’s Submissions

[25]
As outlined above the respondent made initial submissions in support of the application the substance of which were that the public accessibility of the decision is detrimental and harmful to her personally and financially and is damaging to her reputation. She did not put any material before the tribunal in support of these submissions.
[26]
In further submissions received on 3 June 2022 and 8 June 2022 the respondent advised:
1. (a)
  her former sister-in-law:
  1. shares the same name of “Lauren Gascard” with her, however each has a different middle name and different middle initial;
  2. is a registered nurse working and living in the same area as the respondent;
  3. is concerned that the decision may mistakenly be attributed to her and not the respondent in this matter;
  4. is concerned the decision may affect her employment or employability in the future based on perception of her as a practitioner;
2. (b)
  in relation to her own reasons:
  1. the Office of the Health Ombudsman informed her they did not believe she needed to engage a lawyer;
  2. she self-represented and did not understand her responsibilities to engage with QCAT; and
  3. her daughter had just received cancer treatment and impacted her financially.
[27]
The respondent provided the Tribunal with an undated letter apparently under the hand of Lauren Alicia Gascard, her former sister-in-law. This letter sets out the concern that the issues the subject of the decision will be incorrectly attributed to her and not the respondent in this matter and further that she would like the case removed “from all google searches” in order to protect her career and reputation from slander.
[28]
The issues relating to the respondent’s former sister in law could only be considered relevant to any other reason in the interests of justice pursuant to section 66(2)(e). The matters contained in the letter do not speak to actual harm rather they speak to a concern of the prospect of harm.
[29]
The respondent also provided a document titled “New Evidence and Grounds for Re Opening or Proceedings”. In it:
1. (a)
  She states that her employer at the time was aware of the allegation and engaged in a conversation she considered blackmail. She states she was advised that, if she declined to keep working at the centre she would be reported to Aphra, however if she stayed it would not be mentioned any further;
2. (b)
  She states she was pressured into finding potential ailments with patients in order for them to need to return and to boost appointments and claims through Medicare. She also states her supervisor was aware of the above conversation and encouraged her to continue working at the centre; and
3. (c)
  She submits that because of these issues she resigned and self-reported to Aphra as she felt the centre was toxic and unethical.
[30]
The Tribunal observes that these matters do not relate to the conduct the subject of the disciplinary referral, which was the respondent entering into a sexual relationship with the patient. As the respondent expresses them, these matters also post-date the respondent’s conduct the subject of the original application.

Applicant’s Submissions

[31]
In the applicant’s initial submissions filed 16 May the applicant contended that the issues raised by the respondent do not constitute ‘significant new evidence’ and that even if the material had been before the Tribunal when the original decision was made, no non-publication order would have been made because claims of reputational damage are issues producing embarrassment or unfortunate financial effects, which is generally not sufficient to prohibit publication.^[12]
[32]
Further submissions addressing the issues raised in relation to the respondent’s sister-in-law and ‘further evidence’ were filed on 25 July 2022.
[33]
The crux of these submissions is that although the applicant may sympathise with Ms Lauren Alicia Gascard, the issues addressed in her letter are insufficient to warrant a non-publication order as there are various points of distinction that can be identified between her registration on the Aphra website and the previous decision of the Tribunal in relation to the respondent, namely:
1. (a)
  the practitioners’ full names (both of which appear in each information source) are different;
2. (b)
  that one practitioner in a registered nurse while the other was an enrolled nurse;
3. (c)
  the difference in their qualifications; and
4. (d)
  that the decision of the Tribunal noted the respondent was no longer registered.

I would add to this list the fact that the Tribunal made an order the respondent be reprimanded, and no such reprimand is present on the registration of Mrs Lauren Alicia Gascard.^[13]

Analysis

[34]
In relation to the issue of the respondent’s sister-in-law the Tribunal is satisfied that the differing information about each person provides significant points of distinction between the respondent and her former sister-in-law. Brief inquiries by an employer or potential employer would establish that the decision was not about Mrs Lauren Alicia Gascard. Thus the Tribunal is satisfied an order is not necessary for ‘any other reason’ in the interests of justice.
[35]
Turning to the issues raised by the respondent herself the Tribunal is not satisfied it is necessary to make a non-publication order. In coming to that conclusion I have had regard to the following points:
1. (a)
  the respondent did not engage with the Tribunal proceeding and did not make any submissions when the Tribunal was dealing with the original referral;^[14]
2. (b)
  the respondent did not make an application for a non-publication order at the time of the original referral;
3. (c)
  the respondent elected to advise the Health Ombudsman that she would not appear at the oral hearing to make any submissions, or indeed ask any questions about concerns she may have had;
4. (d)
  the decision of the Judicial Member notes:
  1. the respondent self-notified to the applicant;
  2. she admitted culpability and expressed her remorse, which lead the Tribunal to conclude she expressed proper insight. This conclusion informed the Tribunal’s consideration of sanction beneficially to the respondent;
  3. she expressed the belief stress led to her poor judgement;
  4. she was not registered at the time of the decision and had not been practicing for some time; and
5. (e)
  the matters which the respondent now raises were all matters which she was aware of at the time of the original proceeding and which she did not put before the Tribunal.
[36]
Where concerns are raised in relation to a practitioner’s mental health, the Tribunal may consider whether a non-publication order is necessary for the protection of that practitioner. However, such a submission is usually supported by medical evidence.^[15] There is no evidence of this kind before the Tribunal on this application.
[37]
I accept that the matters the respondent now raises would have been relevant if they had been put before the Tribunal on the original application. In my assessment, it is unlikely, balancing them with other considerations in the overall interests of justice, that the Tribunal then would have made a non-publication order such as the respondent now seeks.
[38]
In Medical Board of Queensland v Mallon,^[16] the Tribunal refused to make a non-publication order protecting the identity of the practitioner. In that matter the practitioner admitted engaging in a personal and sexual relationship with a patient however the patient did not make a complaint and the acts were not predatory. The Tribunal considered the importance of general deterrence as a relevant aspect in upholding professional standards.^[17] This was one of the purposes of disciplinary proceedings relevant to the interests of justice. The Tribunal expressly noted that publication was not necessary to prevent any further transgressions by the practitioner, from which I infer that personal deterrence was not considered a relevant factor in that proceeding. Similar considerations arise in this case.
[39]
Further, the Tribunal has accepted as a matter of general principle the proposition that the mere fact that publication may produce embarrassment or unfortunate financial effects is generally not grounds for non-publication, especially if names have already been published.^[18] Here, the respondent’s name has been published for more than two years.
[40]
I am not satisfied on the evidence before the Tribunal that there is any real risk the respondent may suffer psychological harm,^[19] or that any of the other grounds specified in s 66(2) of the QCAT Act is made out.
[41]
As the respondent has not satisfied me that a non-publication order is necessary, and I have determined that that application would not be successful, the Tribunal will not act on its own initiative under s 66(3) of the QCAT Act. Further, it will not consider any further whether the Tribunal should act to extend the time for filing the application or whether relief from the procedural requirements of filing an application in accordance with the form 43 should be granted.

Order

[42]
The application is dismissed.

Footnotes

[1] Section 125 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

[2] LSC v XBV [2018] QCAT 332 at [26] per P Lyons QC.

[3] Health Ombudsman v Shermer (No 2) [2019] QCAT 54 at [6] per Allen DCJ and the authorities cited therein.

[4] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [9].

[5] Sch 3 def “final proceeding” QCAT Act.

[6] S 133 QCAT Act.

[7] S 135 QCAT Act.

[8] S 138 QCAT Act.

[9] QCAT Rules r 92.

[10] QCAT Rules, schedule, definition of ‘relevant day’.

[11] Section 61 QCAT Act.

[12] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89.

[13] Annexure 1 to the applicant’s supplementary submissions dated 22 July 2022.

[14] Health Ombudsman v Gascard [2020] QCAT 264 at [2].

[15] See eg NCK v A(Qld) Pty Ltd and Ors [2013] QCAT 111; Legal Services Commissioner v CBD [2011] QCAT 401.

[16] [2010] QCAT 311.

[17] At [13] – [14].

[18] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [10] per President Justice Wilson

[19] John Fairfax Group Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 140 per Kirby P.

Editorial Notes

Published Case Name:
Health Ombudsman v Gascard (No.2)
Shortened Case Name:
Health Ombudsman v Gascard (No.2)
MNC:
[2022] QCAT 300
Court:
QCAT
Judge(s):
Judge Dann, Deputy President
Date:
29 Aug 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Cutbush v Team Maree Property Service (No 3)	[2010] QCATA 89	4 citations Jump To Cite 1 - [2010] QCATA 89 Cite 2 - [2010] QCATA 89 Cite 3 - [2010] QCATA 89 Cite 4 - [2010] QCATA 89
Health Ombudsman v Gascard	[2020] QCAT 264	1 citation Jump To Cite 1 - [2020] QCAT 264
Health Ombudsman v Shemer (No 2)	[2019] QCAT 54	2 citations Jump To Cite 1 - [2019] QCAT 54 Cite 2 - [2019] QCAT 54
John Fairfax Group Pty Ltd v Local Court (N.S.W.)	View on:NSWLR(1991) 26 NSWLR 131	2 citations Jump To Cite 1 - (1991) 26 NSWLR 131 Cite 2 - (1991) 26 NSWLR 131
Legal Services Commissioner v Clair	[2011] QCAT 401	2 citations Jump To Cite 1 - [2011] QCAT 401 Cite 2 - [2011] QCAT 401
LSC v XBV	[2018] QCAT 332	2 citations Jump To Cite 1 - [2018] QCAT 332 Cite 2 - [2018] QCAT 332
Medical Board of Queensland v Mallon	[2010] QCAT 311	2 citations Jump To Cite 1 - [2010] QCAT 311 Cite 2 - [2010] QCAT 311
NCK v A (Qld) Pty Ltd & Ors	[2013] QCAT 111	2 citations Jump To Cite 1 - [2013] QCAT 111 Cite 2 - [2013] QCAT 111

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Lal v Australian Health Practitioner Regulation Agency	[2023] QCAT 431	2 citations

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Health Ombudsman v Gascard (No.2)[2022] QCAT 300