McCarthy v Health Care Complaints Commission (No 2) [2020] NSWCATOD 24

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCarthy v Health Care Complaints Commission (No 2) [2020] NSWCATOD 24 Hearing dates: Conducted on the papers Date of orders: 18 March 2020 Decision date: 18 March 2020 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Decision: (1) That the application made by the applicant for access to the Tribunal's records in respect of the disciplinary proceedings between the Health Care Complaints Commission and Peter Petros be dismissed. (2) Any application for costs is to be made within 21 days of the date of the publication of this decision. Catchwords: PROFESSIONS AND TRADES – health practitioners – application by third party journalist for access to evidence admitted in disciplinary proceedings against former practitioner – non-disclosure order and non-publication order made to protect privacy of patients' statements and for clinical records – statements provided by patients subject to guarantee of confidentiality – application by third party journalist to enable access to records admitted during hearing of disciplinary hearing – patients' names included throughout records – impractical to redact patients names – whether non-disclosure order should be varied – whether access should be granted to inspect unredacted records Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Health Care Complaints Act 1993 (NSW) Supreme Court (General Civil Procedure) Rules 2015 (VIC), r 28.05 Cases Cited: Attorney General for New South Wales v Gatsby [2018] NSWCA 254 McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142 Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099 Shoebridge v Commissioner of Police, NSW Police Force [2017] NSWCATAD 334 Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Texts Cited: The Chief Justice, the Honourable T F Bathurst AC, Practice Note SC Gen 2 – Access to Court Files, 4 October 2019 S Rodrick, "Open Justice, the Media and Avenues of Access to Documents on the Court Record" (2006) 29(3) University of New South Wales Law Journal 90 Category: Principal judgment Parties: Joanne McCarthy (Applicant on application for ancillary order) Health Care Complaints Commission (First Respondent) Peter Petros (Second Respondent) Representation: Solicitors: Applicant (Self-represented) Health Care Complaints Commission (First Respondent) No appearance by Peter Petros File Number(s): 2018/00117097 Publication restriction: Publication of the names of any patient which might be ascertainable from this decision or the principal decision is prohibited pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW).