Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mooney [2022] NSWCATOD 43 Hearing dates: 1 April 2022 Date of orders: 21 April 2022 Decision date: 21 April 2022 Jurisdiction: Occupational Division Before: Balla ADCJ, Principal Member Decision: 1 The Application is refused. 2 No order as to the costs of the Application. Catchwords: OCCUPATIONS – Medical practitioners – Misconduct and discipline – Protective Orders – Non-Publication Order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s64 Cases Cited: DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 McCarthy v HCCC [2019] NSWCATOD 142 Metleg v Commissioner of Police [2021] NSWCATAD 358 State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69 Texts Cited: None cited Category: Procedural rulings Parties: Ms Kate McClymont (Applicant on the Application) Health Care Complaints Commission (Applicant in the proceedings) Dr William Mooney (Respondent in the proceedings) Representation: Counsel: P Aitken (Applicant) C Jackson (Respondent) Solicitors: L Alick,(in house counsel, Nine) (Applicant on the Application) B Chisholm (Director of Proceedings HCCC) (Applicant) Avant Mutual (Respondent) File Number(s): 2019/00294814; 2019/00400872 Publication restriction: 2019/00294814 (1) Pursuant to s 64(1)(a) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW): (a) The publication by any person or entity of the name of the patients set out in the Schedule to the Complaint is prohibited. (b) The disclosure of the contents of any document lodged with the Tribunal in relation to the patients set out in the Schedule to the Complaint is restricted to the parties to the proceedings. 2019/00400872 (2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication by any person or entity of the name of the patients set out in the Schedule to the Complaint is prohibited. In both matters (3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the Application filed on 5 November 2021, the affidavit of Ms McClymont affirmed on 11 January 2022, all submissions made in respect of the Application and any transcript of the hearing of the Application on 29 March 2022 are not to be published or released to the public. (4) Pursuant to s 64(1)(b)of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these Reasons marked "[NOT FOR PUBLICATION]" are not to be published except to Ms McClymont, the parties and their legal representatives REASONS FOR DECISION 1. In the substantive proceedings the Health Care Complaints Commission (HCCC) filed two Applications for Orders against Dr Mooney. Those applications arise out of, in part, Dr Mooney's involvement with patients A, B and C. They have been prosecuted in two separate proceedings filed by the HCCC in this Tribunal. 2. At the commencement of the Stage 1 hearing, I made Orders in each of the two matters pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), the effect of which was to prohibit publication of information which would identify patients A, B and C. 3. This decision deals with an Application made by Ms McClymont, a journalist with The Sydney Morning Herald newspaper, to vary those non-publication Orders pursuant to subsection 64(3) of the Act, so that the names of patients A and B could be published, but the prohibition of the publication of the name of patient C would continue. Ms McClymont's Application is opposed by the HCCC and Dr Mooney. 4. Ms McClymont's Application dated 5 November 2021 was only filed in proceedings number 2019/00294814. On Ms McClymont's application, which was not opposed, I dispense with compliance with the requirement to file a second Application in proceedings number 2019/00400872 and I will treat her Application as though it had been filed in both proceedings. 5. I propose to refuse both Applications, for the Reasons I will now give. Unfortunately a full explanation of these Reasons would have the consequence of disclosing information which would identify patients A and B. Accordingly, those parts of my Reasons that are not to be published are identified at the start of each relevant heading or paragraph with the words "[NOT FOR PUBLICATION]" pursuant to s 64(1)(b) of the Act. Legal principles 1. I am satisfied that the following principles apply to my determination of the Application. 2. The Orders were made pursuant to s 64 (1) of the Act: (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders-- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), 1. Section 64 (3) provides: The Tribunal may from time to time vary or revoke an order made under subsection (1). 1. I accept that these are the principles to be utilised in respect of the public interest in open justice: 38 "… In making orders under CAT Act, s 64(1) the Tribunal is required to deliberate on whether and to what extent any restriction on disclosure concerning its proceedings is desirable, having regard to the factors set out in the provisions and the basic common-law precept of open justice and matters relevant to each particular case; State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], [50] – [53] and [81] – [82]; Grant at [19]. 39 The word "desirable" necessarily has prominence in guiding the Tribunal on the use of these restrictions. The principle of open justice is of course key; Dezfouli at [61], Bellamy v Bellamy [2018] NSWCA 534 at [30] though that principle is not the sole consideration; Dezfouli at [81] and the Tribunal's powers to make suppression orders are less constrained than a court considering similar matters at common law; CYL v YZA [2017] NSWCATAP 105 at [102]". (Metleg v Commissioner of Police [2021] NSWCATAD 358) 1. And: "61 Quite apart from these two considerations, it is unthinkable that the word 'desirable' in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is 'desirable' under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting. (State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69)" 1. In relation to the relevant considerations in determining whether the Orders are desirable, counsel for the HCCC submitted that there is a recognised need for anonymisation of patients to encourage the public to feel comfortable to make a complaint to the regulator without fear of publicity and loss of privacy and for the health regulator to be able to confidently inform complainants and patients that they will not be identified in future disciplinary proceedings. In McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142 the Tribunal held: "47. Without such an order, it may well be that the patients whose information has been made available to the Tribunal, would not have been prepared to assist the HCCC in its investigations. In Shoebridge v Commissioner of Police, NSW Police Force [2017] NSWCATAD 334 the Tribunal made comment concerning the effect of an order under Rule 42. The Tribunal said at [8]: "There are some potential restraints on providing third parties with access to material lodged by a party, even if that party does not object. These include where the Tribunal makes orders restricting the disclosure information or material: NCAT Act, s 64." … 51. The information which has been provided to the HCCC in the performance of its statutory functions of pursuing its primary objective contained in s 3A of the National Law, namely the health and protection of the public, is sufficient to justify the making of a non-disclosure order to protect the patients' information and identities. There are overwhelming competing considerations against making the identity of the patients involved known to any other person. If such constraint were not applied, it may well be that the HCCC would never be able to guarantee confidentiality to potential witnesses. They in turn may be deterred from assisting the HCCC in its investigations in pursuance of its statutory objective." 1. I accept this submission. 2. Next, there is the issue of the views of the families of patients A and B. I am satisfied that Ms McClymont has led no direct evidence of their families wishing to have the Orders varied. Ms McClymont said in her affidavit that she is not aware of the families of patients A and B expressing any concerns about their privacy. 3. In relation to patient A, Ms McClymont said she had spoken to someone she understood was a friend of the extended family of patient A, who had acted as a spokesperson for the friends and family of patient A. She said he told her "we do not want patient A's name to be suppressed". 4. There is no direct evidence from that friend, there is no evidence of whom he was speaking on behalf of when he said "we", and there is no evidence from anyone in the extended family. I give the statement made by Ms McClymont little weight. 5. In relation to patient B, Ms McClymont inferred what she believes would be the wishes of the widow of patient B by reference to other events which have occurred. 6. However the HCCC asked the widow of patient B. Her solicitor informed the HCCC that she wishes to have the suppression Order remain in place as she wants to protect her privacy and prevent further damage to herself and others which may be caused by media attention. 7. I take into account in my consideration that there is no evidence from the family of patient A in relation to Ms McClymont's application, and the immediate family of patient B opposes it. 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] 10. [NOT FOR PUBLICATION] 11. [NOT FOR PUBLICATION] 12. [NOT FOR PUBLICATION] 13. Next, Ms McClymont submitted that there is a public interest in publishing the names of the patients to maintain public confidence in the authorities' ability to investigate wrongdoing for the protection of the public, to maintain public confidence in the judicial system including this Tribunal, and to enable the families and friends of the patients to feel vindicated. I do not accept this submission. Our reasons fully canvas the relevant issues and I do not accept that there is any additional benefit to the public in being informed of the names of the patients who are not parties to these proceedings. 14. Ms McClymont also submitted that the Orders would prevent family members and friends of patients A and B from giving media interviews, issuing public statements or making posts on social media in which they include the names of patients A and B. I note however that no such person has made such an Application for a variation of the Orders which have been made to permit such activity. Consideration 1. Taking all of these matters into account I am satisfied that the Orders were and still are desirable. 2. I refuse the Application. 3. There was no application by the applicant on the Application nor either party for an Order for costs. Orders 1. The Application is refused. 2. No order as to the costs of the Application. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the Application filed on 5 November 2021, the affidavit of Ms McClymont affirmed on 11 January 2022, all submissions made in respect of the Application and any transcript of the hearing of the Application on 29 March 2022 are not to be published or released to the public. 4. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these Reasons marked "[NOT FOR PUBLICATION]" are not to be published except to the parties and their legal representatives. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2022