Podiatry Board of Australia v AB
[2025] QCAT 43
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- Unreported Judgment
- Podiatry Board of Australia v AB[2025] QCAT 43
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Podiatry Board of Australia v AB[2025] QCAT 43
Podiatry Board of Australia v AB[2025] QCAT 43
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Podiatry Board of Australia v AB [2025] QCAT 43 |
PARTIES: | podiatry board of australia (applicant) v AB (respondent) |
APPLICATION NO/S: | OCR008-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 20 February 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Dick SC Assisted by: Ms A Downey-Smith Ms K McEntegart Mr M Halliday |
ORDERS: | THE TRIBUNAL ORDERS THAT:
is prohibited to the extent that it could identify or lead to the identification of the respondent save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant applies for a non-publication order – where the respondent does not oppose the non-publication order – where the application is made in respect of the mental health of a family member – whether it is necessary to exercise the discretion to grant a non-publication order Human Rights Act 2019 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) LSC v XBV [2018] QCAT 332 Health Ombudsman v Shermer (No 2) [2019] QCAT 54 IMM v Department of Housing and Public Works [2020] QCATA 73 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 NCK v A(Qld) Pty Ltd and Ors [2013] QCAT 111 Legal Services Commissioner v CBD [2011] QCAT 401 Pharmacy Board of Australia v Registrant [2012] QCAT 515 Health Ombudsman v Brown [2020] QCAT 220 |
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
Background
- [1]The respondent brings an application for a non-publication order.
- [2]The application is brought pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) on the basis that the evidence filed in support of it engages ss 66(2)(b) of the QCAT Act.
- [3]The Podiatry Board of Australia (‘Board’) adopts a neutral position in respect of the granting of a non-publication order and is content for the Tribunal to determine the application as it sees fit.[1]
- [4]The underlying proceeding is a referral filed on 8 January 2025 by the Board. The allegations pressed can be briefly summarised as that the respondent failed to maintain adequate and appropriate professional indemnity insurance, provided Ahpra false or misleading information and breached s 130 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
The legislative scheme
- [5]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:
- the contents of a document or other things produced to the Tribunal;
- evidence given before the Tribunal; and/or
- information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.
- [6]Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so:
- to avoid interfering with the proper administration of justice; or
- to avoid endangering the physical or mental health or safety of a person; or
- to avoid offending public decency or morality; or
- to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- for any other reason in the interests of justice.
- [7]It has been observed that 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) is informed by the paramount principle of open justice.[3]
- [8]
- [9]The respondent’s application is made on the basis of s 66(2)(b): that the publication of certain documents, evidence or information would endanger the mental health of a person, namely, the respondent’s wife (‘Mrs AB’).
- [10]The respondent has filed evidence in support of the application. Mrs AB’s general practitioner (‘GP’) is of the opinion that:
[the publication of] her husband’s name… could have a catastrophic effect on [her] mental health to the extent that it could be life threatening.
- [11]Mrs AB’s GP noted the wife has an acute flare of depression with moderate to severe symptoms, with a background of depression which has been moderate to severe across the course of her adolescence and young adult life.
- [12]Mrs AB’s GP expressed her concerns at the deterioration of Mrs AB’s mental health and has referred her to a psychologist and psychiatrist. As of 3 April 2024, Mrs AB was receiving pharmacological treatment for depression.
- [13]Relying on this evidence, the respondent submits that the order should be made because, in light of Mrs AB’s current mental health issues, the publication of the respondent’s name could be catastrophic.
- [14]The evidence before the Tribunal supports the respondent’s submission that publication of his identity in connection with the proceeding, at this time, may well endanger Mrs AB’s mental health or safety. Having reached this decision, no relevant considerations arise under the HR Act as no human right is, relevantly, limited by this decision.
- [15]The respondent has not referred authorities to the Tribunal in support of its application. In circumstances where the order is sought to deidentify the respondent for the purpose of protecting his wife’s mental health and there is sufficient cogent evidence (i.e., a letter from the Mrs AB’s GP) to support the order, the Tribunal is satisfied that it is necessary in these circumstances to make a non-publication order as sought by the respondent.
- [16]The application is granted.
Footnotes
[1] Email from the Board to the associate to the Deputy President dated 2 August 2024.
[2] LSC v XBV [2018] QCAT 332 [26] (P Lyons QC).
[3] See Health Ombudsman v Shermer (No 2) [2019] QCAT 54 [6] (Allen DCJ) and the authorities cited therein; IMM v Department of Housing and Public Works [2020] QCATA 73 [23] (Judge Allen QC).
[4] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 [8]-[9].