FEDERAL COURT OF AUSTRALIA Sevdalis v Director of Professional Services Review [2016] FCA 32 File number: VID 309 of 2015 Judge: MORTIMER J Date of judgment: 2 February 2016 Catchwords: PRACTICE AND PROCEDURE – application to restrict access to, or publication of, documents from disciplinary procedures under professional review scheme – legislative prohibition on disclosure to a 'person' – whether disclosure to Court falls within prohibition Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Federal Court Rules 2011 (Cth) r 2.32 Health Insurance Act 1973 (Cth) ss 82, 93, 106Q, 106U, 106ZPR, 106ZR Cases cited: Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 Kizon v Palmer (1997) 72 FCR 409 Date of hearing: 28 January 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: Mr Winneke SC with Mr B Jellis Solicitor for the Applicant: Perry Maddocks and Trollope Lawyers Counsel for the Respondents: Mr R Knowles Solicitor for the Respondents: Clayton Utz Lawyers ORDERS VID 309 of 2015 BETWEEN: NICHOLAS SEVDALIS Applicant AND: DIRECTOR OF PROFESSIONAL SERVICES REVIEW (AS APPOINTED UNDER S 83 OF THE HEALTH INSURANCE ACT 1973 (CTH)) First Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE NO 885 Second Respondent DETERMINING AUTHORITY (AS ESTABLISHED UNDER S 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)) Third Respondent JUDGE: MORTIMER J DATE OF ORDER: 2 February 2016 THE COURT ORDERS THAT: 1. For the purposes of s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), to prevent any prejudice to the proper administration of justice, the documents identified in paragraph 2 below be treated as confidential to the parties in this proceeding and until further order: (a) may be used only for the purposes of this proceeding; (b) may be disclosed only to the parties to this proceeding and their legal representatives; and (c) will not be open to public inspection. 2. For the purposes of paragraph 1 above, the following documents are identified: (a) annexures NS-1, NS-4, NS-5 and NS-6 to the affidavit of Nicholas Sevdalis sworn 4 September 2015; (b) the Statement of Concerns of Professional Services Review Committee No 855, being a part of annexure NS-8 to the affidavit of Nicholas Sevdalis sworn 4 September 2015; (c) annexures BNT-9 to BNT-24 and BNT-26 to the affidavit of Bruce Neville Topperwien affirmed 15 October 2015; and (d) annexures BNT-1 to BNT-4 to the affidavit of Bruce Neville Topperwien affirmed 20 November 2015. 3. Nothing in this order shall prevent the contents of the above documents being disclosed in open court or in reasons published by this Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MORTIMER J: 1 The first respondent has applied for orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), restricting access to, and publication of, certain documents annexed to three affidavits in this proceeding. The applicant does not oppose the making of such orders. 2 The proceeding concerns an application for judicial review by Dr Sevdalis, a medical practitioner, in respect of a report by the second respondent, a Professional Services Review Committee constituted under s 93 of the Health Insurance Act 1973 (Cth) which found the applicant had engaged in "inappropriate practice" within the meaning of s 82 of the Act; and a decision by the third respondent, the Determining Authority established under s 106Q of the Act, to impose sanctions on the applicant under s 106U of the Act. 3 The documents in respect of which it is submitted orders should be made under s 37AF are: Final Report of the Professional Services Review Committee No 855 regarding Dr Nicholas Sevdalis dated 18 December 2014, annexure NS-1 to the affidavit of Nicholas Sevdalis sworn 4 September 2015 and annexure BNT-26 to the affidavit of Bruce Neville Topperwien affirmed 15 October 2015. Transcript of the hearing before the Professional Services Review Committee No 855, annexure NS-4 to the affidavit of Nicholas Sevdalis sworn 4 September 2015. Draft Report of the Professional Services Review Committee No 855 regarding Dr Nicholas Sevdalis, annexure NS-5 to the affidavit of Nicholas Sevdalis sworn 4 September 2015. Dr Nicholas Sevdalis' submissions to the Professional Services Review Committee No 855 in response to the Draft Report, annexure NS-6 to the affidavit of Nicholas Sevdalis sworn 4 September 2015. The Statement of Concerns of Professional Services Review Committee No 855, being part of annexure NS-8 to the affidavit of Nicholas Sevdalis sworn 4 September 2015. Documents containing information or evidence given to Professional Services Review Committee No 855 in the course of its deliberations, being annexures BNT-9 to BNT-24 to the affidavit of Bruce Neville Topperwien affirmed 15 October 2015 and annexures BNT-1 to BNT-4 to the affidavit of Bruce Neville Topperwien affirmed 20 November 2015. 4 It will be seen that some of the documents have been adduced on behalf of the applicant, and some on behalf of the respondents. 5 Sections 37AF and 37AG of the Federal Court Act provide: 37AF Power to make orders (1) The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or (b) information that relates to a proceeding before the Court and is: (i) information that comprises evidence or information about evidence; or (ii) information obtained by the process of discovery; or (iii) information produced under a subpoena; or (iv) information lodged with or filed in the Court. (2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1). 37AG Grounds for making an order (1) The Court may make a suppression order or non‑publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice; (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; (c) the order is necessary to protect the safety of any person; (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency). (2) A suppression order or non‑publication order must specify the ground or grounds on which the order is made. 6 The basis for the first respondent's application is the operation of s 106ZR of the Health Insurance Act, which relevantly provides: (1) A person must not disclose to another person: (a) any of the deliberations or findings of a Committee; or (b) any information or evidence given to the Committee in the course of its deliberations; unless the disclosure is required or permitted under this Act or the Dental Benefits Act 2008 or is necessary in connection with the performance of the first-mentioned person's functions or duties under this Act or the Dental Benefits Act 2008. 7 The first respondent submits the order is necessary to ensure there is no contravention of the prohibition in s 106ZR due to the conduct of these proceedings and, in turn, to ensure that the underlying purpose of the prohibition in s 106ZR is not frustrated by the conduct of these proceedings. 8 I accept that the purpose of the prohibition in s 106ZR is to protect the privacy and confidentiality of patients whose records, clinical attendances and other details may be revealed and discussed during the investigation and decision-making process undertaken by a Professional Services Review Committee and the Determining Authority under Part VAA of the Health Insurance Act. It seems to me that the provision is also designed to ensure that personal matters relating to the practitioner under investigation are not the subject of dissemination or publication, although the Director of Professional Services Review may cause the findings of a Committee and the directions given by the Determining Authority to be published: s 106ZPR(1). In many Part VAA investigations and decisions, not only may there be great detail about the clinical treatment of individual patients, but the personal circumstances of the medical practitioner concerned are likely also to be the subject of evidence, discussion and findings. That was indeed the case in the report and decision concerning Dr Sevdalis. While the Health Insurance Act reveals a legislative intention that the public interest in knowing of contraventions of the Act by medical practitioners be served by the publication to which I have referred, a provision such as s 106ZR indicates that the details which gave rise to the contraventions are not intended to be available for public review. 9 There is authority for the proposition that in provisions similar to s 106ZR the word "person" should not be construed as including a Court: see Kizon v Palmer (1997) 72 FCR 409 at 430-431 (Lindgren J, with whom Jenkinson and Kiefel JJ agreed). I accept that approach is applicable to s 106ZR. Accordingly, disclosure of the documents in paragraph 3 above to the Court, for the purposes of advancing, and responding to, the judicial review application does not contravene s 106ZR. 10 There is also authority, in a different statutory context, for the proposition that an exception of the kind found in s 106ZR(1) ("or is necessary in connection…" etc) should receive a very wide interpretation, such as to encompass the production of necessary documents in judicial proceedings where the officer's or body's decision is under review: see Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 261-262. I accept that is also a construction which should be applied to s 106ZR. 11 For both those reasons, to the point of reliance by the parties on the documents in paragraph 3 above for the purposes of advancing or defending the judicial review application, there has been no contravention of s 106ZR. 12 Although the affidavits and their annexures are not available for inspection by non-parties without leave (see r 2.32 of the Federal Court Rules 2011 (Cth)) leave would ordinarily be granted once an affidavit and its annexures are read in open court, thus forming part of the evidence in a trial. These orders will preclude inspection of the kind for which leave may be sought under r 2.32 and will also govern the use to which the parties and their legal representatives may put the documents. I am satisfied the orders would result in additional caution regarding the treatment of these documents and that is appropriate given the terms of s 106ZR and its underlying purpose. 13 I am satisfied that any further disclosure, inspection or dissemination of these documents would be contrary to the underlying purpose of s 106ZR, and indeed would frustrate that purpose. The documents do not need to be available for any member of the public to understand the nature of this proceeding, and to follow its course. This is a proceeding concerned with legal error and the arguments by the parties about legal error will appear sufficiently from their submissions and the other publicly available documents. 14 Accordingly, in my opinion, orders under s 37AF of the Federal Court Act should be made. 15 The construction of s 106ZR as not including a court will mean that there is no inhibition in the Court referring to the documents in paragraph 3 in its reasons for judgment. Obviously, to preserve the intended protection given by s 106ZR, and to avoid the consequence which has prompted the making of the s 37AF orders, it will be necessary for the Court's reasons to avoid disclosure of any parts of the documents in paragraph 3 which could identify patients and their medical conditions, the details of their clinical treatment, and any personal details relating to Dr Sevdalis which were put before the Committee. Restraint of that kind will not in my opinion affect the intelligibility of the Court's reasons to the public, or to the parties. Nor will it affect in any material way the manner in which the process and outcome of this proceeding can be publicly reported. 16 Pending my decision on the interlocutory application, a note was placed on the Court's electronic file (ECF) requiring that no inspection or disclosure of the documents in the ECF was to occur without my leave. That note will now be removed and the ECF will be amended to note the making of orders under s 37AF over those documents. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate: Dated: 2 February 2016