Appellant v Respondent

Supreme Court of Victoria|2005-06-29|Before: GILLARD, J.

Complaints against Medical Practitioners - Investigation by Medical Practitioners Board - Search warrant to seize hospital and medical records - Objection to production of documents seized - Relied on grounds of privilege under s.28(2) Evidence Act 1958, a right to refuse under s.141(2) Health Services Act 1988 and public interest immunity based on class of documents - Section 28(2) Evidence Act only applies to curial proceedings and investigation under Accident Compensation Act - No basis for refusal under - Immunity does not apply - Public interest immunity of proper investigation on all evidence outweighs public interest in hospital maintaining confidential relationship.

1 This is an appeal from orders made by a Magistrate that documents which had been seized pursuant to a search warrant be handed to the entity which had obtained the search warrant. The learned Magistrate in reaching the decision and making the orders held that there was no basis for refusing the request to examine the documents.

2 The appellant, Royal Women's Hospital ("the Hospital") is a body corporate operating a public health service within the meaning of the Health Services Act 1988.[1] It operates a public hospital in Carlton, specialising in maternity cases and health of women. It enjoys a reputation as a centre of excellence in the health care of women.

3 The respondent, the Medical Practitioners Board of Victoria ("the Board") was established by the Medical Practice Act 1994 ("the Act"), is a body corporate and has, inter alia, functions of regulating the standards of medical practice in the public interest and investigating the professional conduct, performance and ability to practise of registered medical practitioners.[2]

4 In addition to the named parties, there are other persons who were involved in the circumstances which led to the application before the Magistrates' Court. Senator Julian McGauran is a Senator for the State of Victoria who in May 2001 made a complaint to the Board.

5 Mrs X is a person who underwent a termination of a 32 week old foetus at the Hospital in February 2000. There are a number of registered medical practitioners who were on the staff of the Hospital at the relevant time and whose conduct is the subject of the complaint made to the Board. On 8 December 2004 Master Wheeler made an order pursuant to s.18 of the Supreme Court Act 1986 suppressing the publication of the names of Mrs X and any treating medical practitioners involved in the complaint to the Board made by Senator McGauran. By reason of the order made I will refer to the patient as Mrs X, the doctors the subject of the complaint collectively as "the doctors", and any non-medical staff as "staff of the hospital".

6 In late January 2000, Mrs X attended the hospital emergency department requesting the termination of her pregnancy. She had been informed as a result of a recent ultrasound that her foetus, which was approximately 32 weeks old, may have skeletal dysplasia, commonly known as dwarfism. She was referred for counselling. A further ultrasound taken some days later confirmed the skeletal dysplasia. Mrs X became hysterical and suicidal and demanded that her pregnancy be terminated. She was referred to a psychiatrist for counselling and assessment and it appears that the psychiatrist some days later recommended termination of the pregnancy to preserve the psychiatric health and life of Mrs X. Various medical practitioners within the hospital were consulted and after consultation they concurred with the recommendation and in early February 2000 a foetal reduction procedure was undertaken and Mrs X delivered a female by stillbirth.

7 On or about 8 May 2001, Senator McGauran made a complaint concerning the termination. On 13 March 2002, Senator McGauran delivered a speech to the Senate in which he raised questions of the propriety of the termination. In the course of that speech, the Senator said:

"There was a misdiagnosis of the child's disability of dwarfism. The baby did not have dwarfism but was found to be normal on delivery."

8 In April 2002 the Board determined to conduct a preliminary investigation into the matters and delegated its power to conduct a preliminary investigation to a sub-committee. It was made clear by Mrs X and her solicitors that she did not wish to have any involvement in the investigation and she declined to waive her right to refuse access to her medical records.

9 The sub-committee carried out a preliminary investigation but was hampered by the lack of medical records concerning the treatment provided to Mrs X. On 26 June 2003 the Board obtained from the Magistrates' Court a search warrant which was executed and the documents seized from the Hospital were lodged with the Court. The Hospital made an application seeking an order that the documents seized be returned and on 31 July 2003 an order was made by consent that the documents be returned.

10 On 28 October 2003 the Board applied for a further search warrant which was declined but eventually on 13 November 2003 the Magistrates' Court issued a search warrant which was executed on 18 November 2003. The documents seized by the Board were lodged with the Court to be "dealt with according to law".[3]

11 On 18 November 2003 the Hospital made application to the Court seeking an order that the documents seized be returned to the Hospital. Thereafter orders were made for directions and the application eventually came on for hearing before a Magistrate on 15 March 2004. The matter was heard, concluding on 19 March 2004. Senior and junior counsel appeared for the Hospital and the Board before the learned Magistrate. A number of issues were raised by the hospital, including issues relating to the validity of the search warrant. In a reserved judgment delivered on 8 October 2004, the Magistrate published her reasons, dealt with the issues raised concerning the search warrant and its execution, and considered and determined the issues raised by the Hospital relating to privilege and public interest immunity. The learned Magistrate found against the Hospital in respect to all issues raised and ordered that the Hospital's application be refused and that the documents seized pursuant to the search warrant issued on 13 November 2003, with the exception of those which attracted legal-professional privilege, be released to the Board. The Hospital was ordered to pay the Board's costs of the application. A stay of 30 days was granted.

12 In light of the grounds relied on in this appeal, it is unnecessary to consider the reasons of the learned Magistrate in relation to all issues decided by her. It is necessary to consider the three grounds relied upon by the Hospital for an order excluding the production of the documents to the Board.

13 The Hospital submitted that the documents should not be delivered to the Board because -

(i) s.28(2) of the Evidence Act 1958 precluded the divulging of any information acquired by a medical practitioner in attending the patient without the consent of the patient;

(ii) the provisions of s.141(2) of the Health Services Act 1988 precluded the handing over of any information concerning a patient except in certain circumstances, and the exceptions did not apply to the documents seized pursuant to the warrant;

(iii) the handing over of the documents would be contrary to the public interest and a public interest immunity existed in relation to the records and documents held by the Hospital in relation to Mrs X and accordingly they were immune from production.

14 The learned Magistrate held that the grounds relied upon by the Hospital were not established and made the orders referred to above.

15 On 4 November 2004 the Hospital filed an application to appeal to this Court pursuant to s.109 of the Magistrates' Court Act 1989. The appeal was instituted pursuant to Rule 58.07 of the Rules of Court by filing a notice of appeal. The notice of appeal raised the following questions of law, namely:

(i) whether the documents the subject of the search warrant were subject to the protection of s.28(2) of the Evidence Act 1958;

(ii) whether the documents the subject of the search warrant were subject to the protection of s.141(2) of the Health Services Act 1988; and

(iii) whether the principle of public interest immunity applied to the documents the subject of the search warrant as a class of documents, resulting in those documents not being required to be produced.

16 The grounds of appeal were that the learned Magistrate was in error in failing to determine that the documents were subject to the protection of s.28(2) of the Evidence Act and s.141(2) of the Health Services Act 1988 and was also in error in failing to find that the documents were excluded from production by the principle of public interest immunity.

17 The documents seized comprised the hospital file which contained a variety of documents relating to Mrs X, prepared and/or endorsed by members of the medical profession and also nurses who attended Mrs X. In addition, there were documents relating to an investigation carried out internally by the Hospital in relation to the treatment of Mrs X.

18 An appeal under s.109 of the Magistrates' Court Act is an appeal on a question of law. It follows that in order to succeed in the appeal the appellant must establish an error of law by the Magistrate and persuade this Court that if the error of law had not occurred the appellant would have been successful in the proceeding in the Magistrates' Court.

19 There are a number of well established principles of law concerning the doctor-patient relationship. They are the background to the enactment in 1857 by the Parliament of the Colony of Victoria of a statutory privilege applying in certain circumstances where there was a doctor-patient relationship.

At common law there is no privilege attaching to information ascertained in a doctor-patient relationship which precludes its disclosure to others. This has been the law for many years.[4]

The relationship of doctor-patient is a confidential one and equity precludes a party to the relationship from disclosing any information without the consent of the other party. This is the general rule and courts may grant an injunction to restrain the disclosure of the information.

The law has recognised a need to break a confidence in a doctor-patient relationship in the interests of the public and accordingly the general rule applies "save in very exceptional circumstances".[5]

20 The confidential relationship however will not withstand the law compelling disclosure such as the obligation to give evidence as a witness, the production of documents pursuant to discovery or subpoena or the reach of a search warrant.[6] The confidential relationship must give way to compulsion imposed by law to give evidence or to provide documents.

21 It follows that at common law a doctor could not refuse to answer questions in court because of any obligation of confidentiality. Equally a doctor could not refuse to comply with the demands of a search warrant to produce documents on the ground of confidentiality.

22 In 1857, the legislature of the Colony of Victoria passed an Act which gave a measure of protection to a patient, restricting a medical practitioner from divulging any information obtained for the purposes of treatment in a "civil suit action or proceeding". The enactment has been amended and re-enacted from time to time. Today it is found in s.28(2) of the Evidence Act 1958. It provides:

"(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient."

23 The Hospital relies upon s.28(2) and submits that the protection given to the patient pursuant to that sub-section precludes the handing over of the hospital records to the Board's Investigating Committee. It submits that the Court must give effect to each word in s.28(2) and that the phrase "civil suit action or proceeding" is not confined to court proceedings but is wider; that the word "proceeding" is sufficiently wide to cover an investigation which is inextricably bound up with the hearing of a complaint against a medical practitioner by the Board.

24 It is necessary at this stage to briefly outline the Board's jurisdiction, powers and obligations under the Act. The Board was created by the Act and accordingly its jurisdiction, powers, authority and obligations are to be found within the four corners of the Act which created it. In addition to the express powers set out in the Act, there would be implied powers such as the implied power to do all things necessary to give effect to the exercise of its jurisdiction or authority under the Act.

25 The following summarises the Board's jurisdiction, authority and obligations under the Act with particular reference to it investigating, considering and determining a complaint against a medical practitioner:

• The Board is a body corporate created by the Act.[7]

It has a number of functions including a function to regulate the standards of medical practise in the public interest.[8]

It has power to investigate the professional conduct of registered medical practitioners, to hold hearings into a complaint and to impose a punishment where appropriate.[9]

The Board must investigate a complaint if it concerns the professional conduct of a registered medical practitioner, provided the complaint has not been dealt with by the Health Services Commission and the Board has not determined the complaint to be frivolous or vexatious.[10] It is pursuant to this authority and obligation that the Board has commenced the investigation in the present matter.

The Board must conduct a preliminary examination into the complaint in order to determine whether or not to conduct a hearing into the complaint.[11] The Board does in fact have power of its own motion to conduct a hearing without conducting a preliminary investigation.[12] The Board has commenced an investigation in the present matter.

The Board may delegate its power to conduct a preliminary examination.[13] It has done so in the present matter and has appointed a sub-committee of the Board comprising three members of the Board to carry out the preliminary investigation.[14]

There are no express provisions in the Act dealing with the preliminary investigation into a complaint of unprofessional conduct. However, the purpose of the preliminary investigation is to consider the complaint and decide whether to make a recommendation to the Board under s.38K. By way of example, that the complaint not be investigated further or that a hearing be held into the complaint.

On completion of the investigation, the body conducting it is authorised to make one of four recommendations.[15] The Board must then determine whether or not to act on the recommendation.[16]

The Board having made a determination under s.38K(2) that a hearing take place, if it is an informal hearing the Board must appoint a panel to hold the hearing, give notice to the practitioner and the complainant and fix a time and place for the hearing.[17]

The Act does not expressly define the difference between the requirement to have an informal or a formal hearing but it can be gathered from Division 3A of Part 3 that an informal hearing is one where the alleged unprofessional conduct is not of a serious nature.[18]

However an informal hearing may be converted into a formal hearing if before the end of it, the practitioner fails to attend or he or she requests that a formal hearing be held or the panel is of the opinion that a formal hearing should be held. In those circumstances the matter is then referred to a formal hearing.[19]

Divisions 3A and B of Part 3 deal with the establishment and conduct of formal and informal hearings.

A formal hearing which takes place in relation to a serious charge of unprofessional conduct is to be open to the public unless the panel determines it should be closed.[20]

The range of penalties in relation to the outcome of an informal hearing are significantly less severe[21] than the range of penalties open to the panel where an adverse finding is made against the registered medical practitioner.[22]

26 The complaint made in the present proceeding is the subject of a preliminary investigation. The Act empowers the Board through a person appointed for the purpose, to apply to a Magistrate for the issue of a search warrant.[23] One of the bases for applying for the issue of a search warrant is that it is necessary for the purpose of investigating a complaint made under the Act, "which, if substantiated, may provide grounds for the suspension or cancellation of registration of a medical practitioner".[24] The section gives jurisdiction to a Magistrate to issue a search warrant.[25] A search warrant was issued on 13 November 2003 and it was executed on 18 November 2003 on the Hospital. The search warrant must be issued in accordance with the Magistrates' Court Act 1989 and the rules with respect to search warrants stated in that Act extend and apply to warrants under the Medical Practice Act 1994. The warrants when issued require the person who seized anything named or described in the warrant to bring the thing before the court "so that the matter may be dealt with according to law".[26] This occurred, the Hospital objected to the documents seized being handed over to the Board, and the learned Magistrate ordered that the documents be released to the Board.

Interpretation of s.28(2) of the Evidence Act 1958

27 It was submitted by the Hospital, that s.28(2) of the Evidence Act precluded the Hospital handing over the documents without the consent of the patient, Mrs X. She had declined to give her permission. It was submitted that on a proper construction of the sub-section, the phrase "any civil suit action or proceeding" covered an investigation under the Act. Alternatively, the phrase covered any hearing that may result from an investigation and since the investigation was inextricably bound up with the hearing, it must have been the intention of Parliament that the privilege should extend to the investigation. It was submitted that the natural and ordinary meaning of the words in the phrase must be given effect to, and that a court in construing a statutory provision must give effect to each and every word used. It was submitted that the sub-section was not confined to a hearing or proceeding in a court. The Board submitted that when the provision was first enacted in 1857, it was clear that the phrase "any civil suit action or proceeding" referred to a court proceeding, that the courts had so construed the provision, and when it was re-enacted in 1890, 1915, 1928 and 1958, Parliament re-enacted the provision with the knowledge that the phrase had been confined to court-type proceedings. The Board further submitted that an amendment to the provision in 1987 which added the words "or an investigation by a Complaints Investigator under the Accident Compensation Act 1985" is cogent evidence that Parliament had proceeded on the understanding which was in accordance with the authorities that the sub-section only applied to court proceedings.

28 Section 28(2) was first enacted in 1857 by Act No. VIII called an Act to consolidate and amend the Law of Evidence known as the Law of Evidence Consolidation Act. Before considering the provision, it is necessary to briefly state the historical setting. The English Parliament in 1850 passed an Act called an Act for the Better Government of Her Majesty's Australian Colonies which received the royal assent on 5 August 1850. It reached the colony on 11 January 1851, was proclaimed on 13 January, and in accordance with s.37 it came into operation. The Act created a new colony of Victoria and provided for constitutional government and the administration of justice. On 13 January 1851 the Colony of Victoria became a self-governing body. The existing Legislative Council continued in office and was obliged to prepare a new constitution. Up until January 1851, the statutory laws that applied in the Colony of Port Phillip were those enacted by the Imperial Parliament and the Legislature of the Colony of New South Wales. A number of laws had been passed concerning evidence and they are conveniently identified in the first schedule to the Law of Evidence Consolidation Act of 1857. The Imperial Act of 1850 contemplated the establishment of the Supreme Court of Victoria by letters patent. However, things moved quickly in the colony and by a local Act No. 10 of 1852, the Supreme Court of Victoria was established.[27]

29 The new Constitution for the Colony of Victoria was duly proclaimed on 21 May 1855. It established the Legislative Assembly. The Law of Evidence Consolidation Act of 1857 was passed by the Legislative Council and the Assembly.

"XVIII No clergyman of any church or religious denomination shall without the consent of the person making the confession divulge in any suit action or proceeding whether civil or criminal any confession made to him in his professional character according to the usage of the church or religious denomination to which he belongs and no physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding unless the sanity of the patient be the matter in dispute any information which he may have acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient."

31 There is no argument that "physician or surgeon" covers any medical practitioner and is not confined to a specialist. In a modern setting, it may be argued with some substance, that the word "proceeding" has a wider meaning than a proceeding in a court. But in my opinion that was not the position in 1857.

32 In construing an Act of Parliament, the cardinal rule is that the words must be construed to give effect to the intention of the Parliament which passed the Act. The primary source of the intention of Parliament is the words themselves, to be construed in their ordinary and natural meaning taking into account the context, the Act as a whole and the evident purpose of the legislation. The words declare the intention of Parliament.

33 In construing the language used by the Parliament in its natural and ordinary sense, it is necessary to consider the sense in which the words were used at the time when the statute was passed. The rule as to contemporaneous exposition was first stated by Lord Coke in Inst ed. Thomas, p.2.n.(1), as follows when speaking of the Magna Charta:

"This and the like were the forms of ancient Acts and grants and the ancient Acts and grants must be construed and taken as the law was holden at the time when they were made."

"It has often been held and not unwisely or improperly, that the construction of very ancient statutes may be elucidated by what in the language of the courts is called contemporanea exposito; that is, seeing how they were understood at the time they were passed."[28]

35 It is well settled that the rule only applies to statutes which have been passed many years ago. Lord Watson, speaking in 1883, said:

"Such usages as has in this case been termed contemporanea exposito is of no value in construing a British statute of the year 1858. When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions throughout a long course of years, by the unanimous consent of all persons interested, as evidencing what must presumably have been the intention of the legislature at that remote period."[29]

36 The application of the contemporaneous exposition principle to the construction of an Act must be used with care because the general approach is to construe an Act in accordance with its current meaning, especially when the provision has been re-enacted. The courts have in the past construed provisions in Acts of Parliament which could not have literally applied to the circumstances at the time of the passing of the enactment because the present circumstances could never have been contemplated at the time. Nevertheless the courts have moved with the times and held, for example, that a radio broadcast could breach the Copyright Act 1912 even though radio had not been invented at the time the Act was passed.[30] The reason is that if matters which were not known at the time when the Act was passed on a fair construction of it falls within the words then the Act does apply to the new situation.

37 But that is not the position in the present matter. In my view the contemporaneous exposition rule applies to the construction of language found in an old statute. [31]

38 Whilst it is noted that caution must be exercised in applying the rule, and that as a general rule the principles should only be applied to ancient statutes where there is some doubt as to the meaning of the words used, in my opinion it is a useful principle where the Court by reference to contemporaneous knowledge is able to conclude that the words in question had a settled meaning.

39 In the Campbell College, Belfast case[32] Lord Upjohn said:

"As to contemporanea expositio, this doctrine is I believe truly confined to the construction of ambiguous language used in very old statutes where indeed the language itself may have had a rather different meaning in those days. As Martin B said in Morgan v Crawshay, in delivering the opinion of the judges to your Lordships' House: 'In construing old statutes it has been usual to pay great regard to the construction put on them by the judges who lived at or soon after the time when they were made because they were best able to judge of the intention of the makers at the time.' He was referring to the original poor law statute 43 Eliz. 1, c.2. In such circumstances the construction put on ambiguous expressions throughout a long course of years by the unanimous consent of all parties interested may be evidence of what must presumably have been the intention of the legislature at that remote period. See per Lord Watson in Clyde Navigation Trustee v Laird."

40 In Babaniaris v Lutony Fashions Pty Ltd[33] Wilson and Dawson JJ said:

"The reluctance of courts to depart from long-standing decisions of lower courts appears to be derived in part from the principle of contemporaneous exposition. The principle - contemporanea expositio est optima et fortissima in lege - has a use confined to the construction of ambiguous language in statutes which are sufficiently old for the words to have had a previous different meaning: Campbell College, Belfast (Governors) v Northern Ireland Valuation Commissioner per Lord Upjohn. This origin of the wider doctrine serves to demonstrates its limits. Some ambiguity or doubt must attend the construction of the statute before the doctrine can have any application."

41 Brennan J in Corporate Affairs Commission (NSW) v Yuill[34] did not confine the application of the principle in a restrictive way. His Honour said:[35]

"The alteration of the law which Baker v Campbell prescribes evokes an application of the rule contemporanea expositio est optima et fortissama in lege - the best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up: Broom's Legal Maxims, 10th ed. (1939) p.463. And so, the answer to our first question is that the Code should be construed in the light of the law as it stood when the Code came into force - that is, the law as it stood before Baker v Campbell was decided - unless there be something in the Code which is inconsistent with the operation that would thus be attributed to the Code."

42 His Honour referred with approval to what Lord Simon of Glaisdale said in Black-Clawson Ltd v Papierwerke A.G.[36] where his Lordship said:

"... if the draftsman uses the tools of his trade correctly, the meaning of his words should actually represent what the promulgator meant to say. And the court of construction, retracing the same path in the opposite direction, should arrive, via the meaning of what was said, and what the promulgator meant to say ... In order to understand the meaning of the words which the draftsman has used to convey what Parliament meant to say, the Court must so far retrace the path of the draftsman as actually to put itself in his position and that of Parliament. The expositio must be both contemporanea and eodem loco."

43 I respectfully agree. It is the tracing process which may provide cogent evidence of what the intention of Parliament was at the relevant time, namely, the true meaning of the words used.

44 In my opinion, a consideration of provisions of various Acts passed at the beginning of the Victorian Legislature leads to the conclusion that the Parliament intended the words to refer to a proceeding in a court of law and not otherwise.

45 The starting point is the Act which established the Supreme Court of Victoria.

46 As earlier stated, the Supreme Court of Victoria was established by an Act to make provision for the better Administration of Justice in the Colony of Victoria which was assented to on 6 January 1852. It was Act No. X of 1852. It was enacted by Lieutenant Governor La Trobe with the advice and consent of the Legislative Council of the Colony. It must be remembered that the law was administered in various divisions within the Court and this was the position in England at the time. That Act established a jurisdiction at common law,[37] a criminal jurisdiction,[38] an equitable jurisdiction,[39] and an ecclesiastical jurisdiction.[40]

"That from and after the commencement of this Act a Court shall be holden in and for the Colony of Victoria and its dependencies which shall be styled 'The Supreme Court of the Colony of Victoria' Provided however it be enacted that no Action Suit or other proceeding at Law or in Equity or any matter or thing whether civil or criminal or relating to affairs Ecclesiastical or of any other description whatsoever which shall then be depending in the several departments of the Supreme Court of New South Wales for the District of Port Phillip shall abate ... ".

48 It is clear from the context that the phrase "no Action Suit or other proceeding at Law or in Equity" concerned any process then pending in "the several departments of the Supreme Court of New South Wales for the District of Port Phillip". The phrase in my opinion was intended to embrace all process in the Court. It was a phrase used to cover the process in the various jurisdictions.

49 Going further back in time, it is clear that the phrase "any Suit Action or proceeding" was a phrase used by the Legislature of the Colony of New South Wales to cover any process or proceeding in a court. In an Act for improving the Law of Evidence, 26 June 1844 - 8 Vic No. 1, s.I provided:

"That no person offered as a witness, shall hereafter be excluded by reason of incapacity ... from giving evidence, either in person or by deposition, according to the practice of the Court, on the trial of any issue joined or of any matter or question, or on any enquiry arising in any suit, action or proceeding, civil or criminal, in any court or before any judge jury sheriff coroner Magistrate officer or person having by law or by the consent of the parties authority to hear, receive and examine evidence in the Colony of New South Wales ... ".

50 It is noted that the Legislature expressly extended the operation of the provision to proceedings other than in a court but nevertheless used the phrase to cover all proceedings in the court.

51 The same observations may be made with respect to an Act to amend the Law of Evidence 17.9.1852 - 16 Victoria No. 9, an Act passed by the Legislative bodies of the Colony of Victoria where it is noted in s.I the following:

"Whenever any action suit or legal proceeding shall henceforth be pending in any Court in the said Colony, such Court ... ".

52 I refer also to the use of the phrase by the Victorian Legislature in an Act to amend further the Law of Evidence 14.3.1854 - 17 Victoria No.11 - s.II. This dealt with the competence and compellability of witnesses and the section applied "in any action suit or other proceeding in any court of justice or before any person having by law or by consent of the parties authority to hear receive and examine evidence the parties thereto and the persons in whose behalf ... ".

53 The Legislature has used the phrase to cover the process in a Court.

54 In 1857 the Legislature in the Colony of Victoria, which by this time comprised the Legislative Council and the Legislative Assembly, passed the Law of Evidence Consolidation Act. This brought together the statutory law of evidence in the Colony and various previous acts relating to evidence were repealed. Section III commenced:

"On the trial of any issue joined or of any matter or question or on an enquiry arising in any suit action or proceeding in any court or before any person having by law or by consent of the parties authority to hear receive and examine evidence any person who may happen to be present and who by virtue of this act is competent to give evidence ... may be called and required to give evidence."

55 In my opinion, the historical survey shows that the Legislatures of New South Wales and Victoria at the time used the phrase "suit action or proceeding" to cover any process in a court of law. Where the Legislature intended that the particular provision should have application beyond a court of law, it expressly stated so.

56 It was by s.XVIII that the privilege now under consideration was first enacted. I have set it out above.[41]

57 When it was enacted in 1857, the section covered both confessions to clergymen and medical practitioners. It was divided into two parts in the 1890 consolidation and more recently has been divided into two sub-sections. In construing a statute, it is necessary to consider the provisions in context and taking into account the statute as a whole. In its original form, it is clear in the first part of the section that the phrase "any suit action or proceeding" relates to court proceedings by reason of the words that followed the phrase, namely, "whether civil or criminal". The section follows on from the first part of the section and the phrase in context relates to proceedings in a court. However, it is noted that the phrase is "civil suit action or proceeding" which confines it to a civil proceeding and does not preclude the divulging of the information in a criminal proceeding. In my opinion, the wording of s.XVIII makes that clear. This conclusion is reinforced by the earlier legislation to which I have referred where it is clear that "any civil suit action or proceeding" was a composite phrase to cover any proceeding or process in a court of law. Where the Legislature intended to cover a proceeding before a person having by law or by consent authority to hear and examine any evidence then the Legislature made that clear.[42] If the Legislature intended that the prohibition on disclosure of the information was to extend to a proceeding other than in a court of law, it could easily have done so. In my opinion, when enacted it was the intention of the Legislature to confine the doctor-patient privilege to a process or proceeding in a court of law.

58 The 1857 Act was repealed and re-enacted in the Evidence Act of 1864. Section XVIII was re-enacted in exactly the same form in s.47. The 1864 Act was repealed by the Evidence Act of 1890 and again the same words were used in the new Act concerning confessions to clergymen and disclosures to medical men. Now the section was divided into two parts. See s.55. The Evidence Act of 1890 was repealed and re-enacted by the Evidence Act 1915. Section 28 is in exactly the same terms as s.55 of the 1890 Act. The 1915 Act was repealed and re-enacted in the Evidence Act 1928 and s.28 is in exactly the same terms as the same section in the 1915 Act. The 1928 Act was repealed and re-enacted in 1958. Section 28 is in the same terms save that it was amended by the Evidence Act 1946 where the words "or testamentary capacity" were inserted after the word "sanity" in s.28.

59 The question arises that when the Parliament re-enacted the Evidence Act in 1958 was it the intention of Parliament that the phrase in s.28, which was enacted in separate parts to cover confessions to clergymen and disclosures to medical practitioners, provided a protection against production in a proceeding in a court of law only? Going back in time, s.43 of the Evidence Act 1864 was concerned with parties and the issue of husbands and wives being competent and compellable witnesses "in any suit action or proceeding in any court". The section went on to provide that the provision applied in any proceeding "before any person having by law or by consent of parties authority to hear receive and examine evidence." This provision has been re-enacted in every Evidence Act since and is now found in s.24 of the Evidence Act 1958. Counsel for the Hospital have drawn attention to the words "in any court" which follow the phrase, and submit that this is in stark contrast to the wording of s.28(2). It was submitted that the absence of the words "in any court" in s.28(2) meant that it was not confined to a court proceeding. I do not accept this submission. It is clear why it was phrased in that way as early as 1864, because the provision was intended to extend beyond a court proceeding and to cover any proceeding before a person having by law or consent of the parties authority to hear, receive and examine evidence. Rather than counter the submission that the phrase is confined to a court proceeding, in my view it reinforces that conclusion because the Legislature expressly provided for a situation other than a court of law. It did not do so in the original provision, and the amendment of 1987 inserting the words "or an investigation by a complaints investigator under the Accident Compensation Act 1985" is cogent evidence that the Parliament proceeded on the basis that s.28(2) was confined to a court proceeding.

60 This conclusion is reinforced by a consideration of the cases which have discussed the construction of s.28(2). These cases have decided or proceeded on the assumption that the phrase is confined to a court proceeding. There is controversy concerning the rule relating to the construction of a provision in a statute after it has been re-enacted following a judicial decision as to its meaning. The most frequently cited statement of the rule is the dicta of James LJ in Ex parte Campbell[43] which was approved by the House of Lords in Barras v Aberdeen Steam Trawling and Fishing Co Ltd.[44] His Lordship said:

"Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given them."

61 That principle has been quoted with approval and applied in a number of Australian cases. The seven members of the High Court in Re Alcan Australia Ltd & Ors; ex parte Federation of Industrial, Manufacturing and Engineering Employees[45] said:

"There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to (them)', although the validity of that proposition has been questioned. But the presumption is considerably strengthened in the present case by the legislative history of the Act."

62 The questioning of the rule has emerged where the provisions have been re-enacted in consolidating acts. Doubts have been cast upon the value of the rule. See Salvation Army (Vic) Property Trust v Ferntree Gully Corp[46] and more recently Flaherty v Girgis.[47] Although doubts about the rule have been expressed, and in my opinion it is clear that if a court came to the view that previous interpretations were wrong, the rule should not apply, the fact is that the rule has force when one considers the history of the legislation and the decisions considering the interpretation of the provision.

63 Cases in the past have construed the provision as relating only to curial proceedings, that is, proceedings in a court of law.

64 Whether the rule should apply will depend upon the particular circumstances, and the history of the provision in this case leads very strongly to the conclusion that the principle does apply to s.28(2).

65 In Warnecke v The Equitable Life Assurance Society of the United States[48] the Full Court held that the word "information" in the provision included not only communications made by the patient but knowledge acquired by the medico in the course of his professional relationship with the patient. This decision was approved by the High Court in National Mutual Life Association of Australasia Limited v Godrich.[49] In neither case was the issue of the provision's application to a court of law or any other body considered. Nevertheless there are observations made by judges in the High Court which support the conclusion that the provision only applies to proceedings in a court of law. Isaacs J[50] said:

"The purpose of the legislature is manifest on the face of the enactment. It was to prevent, within certain limits, any public tribunal being made the instrument to violate the confidence which a patient has reposed in a physician or surgeon as his medical adviser. Parliament has not thought fit to enact a general prohibition of disclosure of professional secrets. Outside the walls of the Court a medical man is left to the dictates of his honour, the ethics or rules of his profession, or the force of any compact he may have made with the person who confided in him. And even within the Court itself, where crime is charged, the interests of the public at large are still for obvious reasons thought sufficient to outweigh considerations of medical confidence. But, where individual rights only are in controversy, unless the patient's sanity is the matter in dispute, the State, setting private obligation against private obligation, refuses to be a participant in the breach of a personal trust, probably the result of physical suffering or the fear of death. So much is clear; the evil to be cured is unmistakable, and within the limitations which the legislature has itself marked out, the remedy should be advanced: Heydon's case.

The enactment works no abridgement of any substantive right, no invasion of liberty or property, nothing but a regulation of curial procedure to effect the desired reform in the law of evidence for the maintenance of good faith."

66 The word "curial" means pertaining to a court.[51] What his Honour said of course was not essential to his decision because the issue in the case did arise out of a court proceeding. However, what his Honour said accords with the historical consideration of the section. One thing is clear, the Legislature intended to provide a privilege but the privilege was to be confined in accordance with the provisions of the section. It did not apply in all circumstances. The privilege was not intended to cover all situations.

67 In Andasteel Constructions Pty Ltd v Taylor,[52] Gillard J considered the section where a proceeding was brought by an employer to recover money under the Workers Compensation Act from the negligent defendant, such money having being paid to the deceased worker's widow. The employer called the doctor who examined the employee after the accident. Objection was taken by the defendant that the doctor was precluded from giving evidence of statements made by the deceased during his examination. Gillard J held that the medical evidence was inadmissible. The question did arise as to who could waive the privilege. Since the employee was deceased, there was nobody in the proceeding to waive the privilege. In reaching his conclusion, the learned judge referred to three matters and the second was expressed in this way:

"(b) Secondly, the privilege is a curial one only to be exercised in a court, and having no analogy to a propriety right existing at large against the world."

68 What his Honour said concerning the privilege being a curial one only to be exercised in a court was not necessary for his decision. His Honour was dealing with a matter in the Court and the only question was who could give the consent after the death of the patient. Nevertheless other judges have accepted the observation and applied it.

69 Reference has been made to the Andasteel case by a number of judges of this Court without criticism. In Carusi v Housing Commission[53] Lush J referred to the decision without any criticism. He noted that Gillard J had "stressed that the privilege or exemption conferred by s.28(2) was a curial matter exercised in court and that the consent referred to must be consent to the giving of evidence in court." The proceeding before Lush J was a proceeding in court. He held that although consent had been given by the deceased in a document to disclose information, s.28(2) precluded it from being given in a court.

70 In Harey v Riley and anor,[54] Norris J was concerned with a claim for privilege where a widow sued a medical practitioner for negligently causing the death of her husband. The cause of action concerned treatment for mental instability and the question arose whether the defendant could object to producing certain documents by reason of the privilege in s.28(2) of the Evidence Act. His Honour referred to what Gillard J said in Andasteel. However, his Honour did not have to consider the issue. No criticism was made of what Gillard J had said.

71 In Elbourne v Troon Pty Ltd,[55] Jenkinson J was concerned with the objections taken by medical practitioners to production of documents. They had been sued by an employer seeking contribution in a proceeding brought by a plaintiff for damages for personal injuries suffered in his employment. His Honour said:[56]

"I accept, with respect, the characterisation by Gillard J of the privilege conferred by s.28(2) as 'a curial one only to be exercised in a court, and having no analogy to a proprietary right existing at large against the world'."

72 The conclusion that the provision is confined to a Court proceeding is further reinforced by a consideration of the amendments made to s.28(2) since it was re-enacted in 1958.

73 The judgment in the Andasteel Constructions case was delivered on 23 September 1963. His Honour considered what Sholl J had held in Pacyna v Grima.[57] His Honour distinguished that case. Sholl J had held in the previous year that consent under the provision to divulge the information could be given by the personal representative of a deceased patient in an action brought by the personal representative under s.17 of the Wrongs Act 1958 for the benefit of the relatives of the deceased or under s.29 of the Administration and Probate Act 1958 for the benefit of the estate. Gillard J held in Andasteel that the consent could not be given by the personal representative if such personal representative was not a party to the litigation. These two decisions raised some interesting questions about who could consent to waiving the privilege and in early 1966 the Parliament of Victoria passed the Evidence (Medical Evidence) Act 1966. It added the following provision to s.28:

"(3) Sub-section (2) shall cease to have any application in -

(a) an action brought under Part III of the Wrongs Act 1958 to recover damages for the death of a patient; or

(b) proceedings brought under the Workers Compensation Act 1958 to recover compensation for the death of a patient -

if the person bringing or continuing the action or proceedings calls as a witness any physician or surgeon who has attended the patient."

74 In Pacyna v Grima,[58] Sholl J had raised but not answered the question whether, in an action brought under s.18 of the Wrongs Act where there was no personal representative, consent could be given. The amendment, in my opinion, put at rest the query raised by Scholl J and reversed the effect of the Andasteel Constructions case. What is pertinent is that no attempt was made by the Parliament to alter the reach of the privilege to something other than a curial proceeding. Further amendments were made in the Evidence (Amendment) Act 1984. Sub-section (3) was repealed and the following was substituted:

"(3) Where a patient has died, no physician or surgeon shall without the consent of the legal personal representative or spouse of the deceased patient or a child of the deceased patient divulge in any civil suit action or proceeding any information which the physician or surgeon has acquired in attending the patient and which was necessary to enable the physician or surgeon to prescribe or act for the patient."

"(4) Sub-section (3) shall cease to have any application to or in relation to any civil suit action or proceeding at and from the time at which there is no legal personal representative spouse or child of a deceased patient."

76 A new sub-section (5) excluded the application of sub-ss.(2) and (3) to any action brought under Part 3 of the Wrongs Act 1958, to proceedings brought under the Workers Compensation Act or in civil suit action or proceeding in which the sanity or testamentary capacity of a patient is the matter in dispute.

77 No attempt was made by the Legislature to amend the provision to extend its application to a non-curial proceeding. Further, the Legislature repeated the phrase "in any civil suit action or proceeding" which had been accepted in the cases as referring to curial proceedings only and in a context where the phrase was referring to a court proceeding.

78 Finally, there was a further amendment made to s.28(2) by the Accident Compensation (Amendment) Act 1987. After the word "proceeding" the amendment added the words, "or an investigation by a complaints investigator under the Accident Compensation Act 1985". This amendment provides support for the view that Parliament accepted that the provision did not apply to anything other than a curial proceeding. The amendment also provides some support for the opinion that Parliament accepted that the original provision passed in 1857 referred to curial proceedings only and that was the meaning today.

79 In my opinion, s.28(2) of the Evidence Act 1958 confines the privilege to a curial proceeding, that is, a proceeding pertaining to a court and by reason of the recent amendment an investigation by a complaints investigator under the Accident Compensation Act 1985. In my opinion it does not apply to an investigation under the Medical Practice Act 1994, nor in my opinion would it apply to a hearing conducted by the Board or a panel of it, in respect of a complaint made against a registered medical practitioner. The history of the legislation supports those conclusions, as does the context of the provision when read with other provisions in the Evidence Act, the statement of Gillard J in Andasteel which has not been the subject of any criticism and finally, the amendments since 1958. Parliament has in the past where appropriate extended the operation of a provision to a proceeding outside the courts. It has expressly so provided after using the phrase and qualifying it by adding the words "in any court". In using the qualifying words it was seeking to distinguish between a court proceeding and another proceeding. It has not done so in s.28(2) save for the recent amendment to cover an investigation under the Accident Compensation Act 1985. If Parliament intended the provision to cover other proceedings it has had a number of opportunities to extend its operation and has not.

80 The only decision which seems to be against my conclusion is the decision of Hampel J in Wartski v Medical Practitioners Board and ors.[59] His Honour was concerned with a judicial review where it was assumed by the parties that s.28(2) applied to the formal hearing before the Board and that objection could be taken to production of documents. In my opinion, the case is no authority for the proposition that s.28(2) did or did not apply to a proceeding before the Medical Practitioners Board.

81 I requested counsel to ascertain whether there were any cases dealing with the New Zealand legislation which had some degree of similarity to s.28(2). Reference was made to Lucena v The National Mutual Life Association of Australasia;[60] In Re the St Helen's Hospital;[61] and Pallin v Department of Social Welfare.[62] I have not been assisted by these authorities. The relevant legislation qualified the word "proceeding" by the word "civil". In addition, in the earlier Act of 1908, the term "proceeding" was in fact defined. These cases and in particular In Re the St Helen's Hospital discussed the type of proceedings, but it is clear that the courts were dealing with different legislation. Those cases do not provide any assistance on the issue raised in this appeal.

82 In my opinion, the Hospital cannot object to the production of the documents to the Board for the purposes of the investigation relying upon s.28(2) of the Evidence Act 1958. The learned Magistrate's conclusion was correct.

83 It was the contention of counsel for the Hospital that s.141 of the Health Services Act 1988 precluded the production of the documents to the Board. Section 141 deals with confidentiality. Sub-section (2) provides:

"(2) A relevant person must not, except to the extent necessary -

(a) to carry out functions under this or any other Act; or

(b) to exercise powers under this or any other Act in relation to a relevant health service; or

(c) to give any information he or she is expressly authorised, permitted or required to give under this or any other Act -

give to any other person, whether directly or indirectly, any information acquired by reason of being a relevant person if a person who is or has been a patient in, or has received health services from a relevant health service, could be identified from that information.

84 "Relevant person" is defined by s.141(1) and means, inter alia, "a relevant health service or the board of a relevant health service". "Relevant health service" means according to the sub-section "a public hospital or denominational hospital". There is no doubt that the Hospital is a relevant person being a public hospital. Initially it was argued that the sub-section could not apply because the documents were to be given to "any other person" and the Board was not a person. However by reason of s.38 of the Interpretation of Legislation Act 1984, the word "person" in any legislation includes "a body politic or corporate as well as an individual".

85 Counsel on behalf of the Board put a number of submissions. First of all it was submitted that the exception in (c) applied, namely, that they were required to give the information by reason of the issue and execution of the search warrant under s.93A of the Medical Practice Act 1994 and hence it was necessary to give the information. The second submission was that the requirement to hand over the documents pursuant to a search warrant does not amount to a breach of the sub-section because the Hospital was not "giving to any other person" whether directly or indirectly any information because the Hospital was required as a matter of law to hand over the documents. Reference was made to the decision of Royal Melbourne Hospital v Mathews[63] where Beach J held that the giving of information pursuant to a search warrant is "not giving information to the police officer within the meaning of sub-s.(2c) of s.141 of the Act". I agree with Beach J's decision. The production of documents under compulsion of law could hardly be described as giving to a person information.

86 In any event, in my opinion s.141(2)(c) provides an exception to the prohibition because the Hospital was bound under an Act to deliver up the documents. The search warrant was validly issued and executed under an Act of Parliament and required the production of the documents.

87 Section 141(2) is a provision of the law which makes it a criminal offence to give the information to another person, but if the information was given under compulsion of law, I cannot see how the person giving the information would be guilty of an offence. It could hardly be said that the actus reus of the offence was a voluntary act on the part of the person giving the information.

88 In my opinion s.141(2) does not preclude the handing over of the documents which have been validly seized under the search warrant. The Magistrate's conclusion was correct.

89 The Hospital submits that the doctrine of public interest immunity applies and as a result the Board is prevented from obtaining access to the records seized under the search warrant. Where public interest immunity is claimed, it is essential for the party or body claiming the immunity to identify with a degree of precision the class of documents which it would not be in the interests of the public to produce. It is apparent from the learned Magistrate's reasons that some difficulty was experienced by counsel on behalf of the Hospital defining the class of documents. The learned Magistrate said in her reasons:

"During the course of the hearing, and in particular in referring to the documents for which he argued for public interest immunity to be attached, counsel for the applicant described them variously as 'hospital records', 'medical records' and 'hospital and medical records'. It was only on the last day of the hearing that the description of the 'class' for which the applicant claimed public interest immunity was clarified as being 'all medical records of public hospitals should be immune from production'.

In the circumstances I have taken that that statement accurately reflects the applicant's claim."

90 It is clear that the Hospital claimed that there was a "class" of documents which were protected by the public interest immunity and the class was defined. However on this appeal counsel for the Hospital re-defined the "class". Counsel identified the class of documents as the medical records of "women patients in public hospitals seeking advice and treatment concerning reproductive matters including obstetrics and gynaecological care". It is noted that this is a more restricted definition of the class.

91 Counsel for the Board opposed the re-formulation of the class. It was submitted that this was an appeal from a Magistrate on a question of law. As the appeal, like all appeals, is a creature of statute, it was necessary for the Hospital as the appellant, to establish an error of law by the Magistrate. It was submitted that it could not be said that the learned Magistrate had made an error of law if she had not considered the submission that was now being put to this Court.

92 Counsel for the Hospital sought to counter this submission by relying upon a principle that it was open for an appellate court to consider a matter that was not considered below if it did not involve any consideration of a factual matter, was confined to a question of law and justice dictated that the appellant should be permitted to argue the question on appeal. That principle is well established.

93 However, I am concerned with a statutory appellate jurisdiction which requires an appellant to establish to the satisfaction of this Court on appeal that the learned Magistrate reaching the decision made an error of law and the error of law was involved in the final order.

94 The nature of an appeal under s.109 was considered by the Court of Appeal in Constant Tsai Shi Wong v C. Carter and ors.[64] Tadgell JA with whom the other members of the Court agreed said:[65]

"Section 109(1) of the Magistrates' Court Act 1989 confers on a party to a civil proceeding in the Magistrates' Court a right of appeal to the Supreme Court, on a question of law, from a final order of the Magistrates' Court in that proceeding. The nature of an appeal of that character was considered in Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197 at 199. The Full Court there decided that the right of appeal conferred by s.52 of the Administrative Appeals Tribunal Act 1984 (now repealed) 'on a question of law, from a decision of' the Administrative Appeals Tribunal was to be construed as granting a right of appeal 'on a question of law which is involved in' the decision. The appeal authorized by s.109 of the Magistrates' Court Act (and by s.92 in criminal cases) is to be similarly construed. ... An appeal to the Supreme Court is not authorised by the Magistrates' Court Act unless it is brought on a question of law which is involved in the final order from which the appeal is brought. The existence of a question of law is not only a precondition to the right of appeal but also the subject of the appeal itself; and it follows that the appeal does not operate as a re-hearing of the whole dispute or matter."

95 Whether there is a question of law involved in the final order will depend upon the particular circumstances of each appeal. In some cases where an appellant seeks to argue a matter not argued below there may not be a question of law involved in the final order. However, in this appeal the Hospital wishes to re-define the class attracting the public interest immunity. The Hospital has submitted that the learned Magistrate misdirected herself on the law and erred in her consideration of the issues. It was submitted that this error was manifest and the attack upon her decision did not involve the definition of the class of documents. It was submitted that if the Court was satisfied that the learned Magistrate did err in her consideration of the issue of public interest immunity which did not depend on the definition of the class of documents, an error of law was established, and the decision should be set aside. In my opinion that is correct. Nevertheless, the parties did inform the Court that if the Court came to that conclusion, the parties wished the Court to consider the question in accordance with the law. It would be at that point that the re-classification would be relevant. In those circumstances, because it is a question of law and there is no suggestion that further evidence should be placed before the Court on the question, in my opinion justice would be served in the interests of both parties if the Court did consider the new definition of the class at that point. In reaching that point, the Court would have concluded that there was a question of law involved in the final order and that error had been demonstrated.

96 It is necessary at the outset to identify the documents which are said to be protected from production.

97 The documents are identified as the patient Ms X's medical records, together with any documents in respect of an internal review of the case by the Hospital and any other documents relating to the termination of the pregnancy.

98 Mr Lacava SC who appeared with Dr S. McNicol on behalf of the Hospital submitted that the Magistrate misdirected herself on the law resulting in failing to consider the issue in accordance with the law. Hence her decision was vitiated by error. Of course if the Magistrate did err in her approach, it is still open to the Board as a successful party to demonstrate that in the result her decision was correct. Mr Lacava referred to the Magistrate's decision in which she quoted what Spigelman CJ said in R v Young.[66] His Honour discussed various principles under the heading "Public interest immunity".[67] His Honour discussed further principles[68] under the heading "Privilege". It was submitted that the Magistrate relied upon statements made by the Chief Justice which concerned the question of the creation of a new head of privilege. This was not an issue before the Magistrate.

99 Although public interest immunity was formerly known as Crown privilege it does in fact differ from the categories of privilege recognised by law. Public interest immunity applies for the benefit of the public interest and does not operate for any particular private relationship or private interest. It differs from what I might call pure privilege because the privilege is claimed in the interests of the public, it cannot be waived, nor can copies of documents protected by the public interest immunity be disclosed. In his judgment in R v Young, Spigelman CJ considered whether the public interest immunity precluded the production of statements to a person accused of sexual offences made by the victim of the sexual assaults. The majority of the Court which included the learned Chief Justice was of the opinion that the common law public interest immunity did not apply. However, it was argued on behalf of the respondents to the appeal that the Court should recognise a new category of privilege. This involved the application of principles which were separate and distinct from the common law public interest immunity. A close reading of what his Honour said makes it clear that all that followed after the heading "Privilege" was concerned with this very question. It was in that context where his Honour made observations criticising the paucity of material presented to the Court and that a court would need to be satisfied that there was evidence which established the need for a new category of privilege.[69] His Honour said:[70]

"However, before the Court establishes a new category of privilege it needs to be satisfied that some form of systematic attempt to marshal relevant evidence has occurred. Nothing of that character was done in the present case."

100 The learned Magistrate's reasoning can be summarised as follows:

• That public interest immunity arises in order to safeguard the proper functioning of the executive arm of government and of the public service and that in the circumstances she was satisfied that there was a link between government and public health and this satisfied the first criterion of the public interest immunity.

• That in order to recognise what the learned Magistrate described as a new category of privilege it was necessary to have evidence of a review of expert literature or a review of an expert body of opinion and in this regard the Magistrate relied upon what Spigelman CJ said at paragraph 115 of his judgment.

"Unless it is clear that there are distinctive features which lift such documents into an identifiable, recognisable class, I believe that I am bound to exercise constraint in developing the common law by 'creating' a new 'class' of documents which would attract public interest immunity.

Without the requisite body of evidence or the clearly discernible features of the documents (e.g. the mental health records of a prisoner in a particular coercive set of circumstances as in Clifford's case), I find that the applicant has failed to discharge its burden of establishing that the medical records of a public hospital, or of the Royal Women's Hospital, form a recognisable and distinctive class of documents of such public interest that all documents in such a class should be immune from production.

In light of that finding, it is not necessary for me to consider the nature and extent of the public interest in the production of the seized documents to the Board or to engage in a balancing of the competing public interest."

101 In my opinion, the learned Magistrate's approach was wrong. The reference to what Spigelman CJ said at paragraph 114 was in relation to the creation of a new category of privilege. The common law over the years has created new categories of privilege. If a court was to consider such an issue, it would be necessary, as Spigelman CJ said, to have extensive evidence as to the necessity of the recognition of a new category of privilege. His Honour's comments were not concerned with the question of public interest immunity. In addition, the Magistrate was wrong in failing to perform the balancing exercise. The balancing exercise requires the Court to weigh the harm to public interest that would be done by the production of documents as against the public interest which is vital to the proper investigation of a complaint against a medical practitioner, pursuant to a statutory obligation. The Court must perform the balancing exercise and decide which public interest must predominate.

102 I am satisfied that the learned Magistrate erred in her approach and accordingly her decision is vitiated because of the error. However, that is not the end of the exercise. Counsel for the Board submitted that the decision reached by the Magistrate was correct in that on a proper application of the principles the Hospital had failed to establish public interest immunity. That is, that on a proper balancing of the interests, the interests of the public in a proper investigation predominated over any public interest alleged by the Hospital.

103 It is necessary at this stage to briefly state the principles of the law concerning public interest immunity. This form of privilege grew out of the well established and longstanding principles exempting the obligation to disclose documents known as Crown privilege. But as has been stated, it is misleading to describe it as a privilege. In R v Lewes,JJ ex p. Home Secretary[71] Lord Reid said:

"The ground put forward has been said to be Crown privilege. I think that that expression is wrong and may be misleading. There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of the litigant that he shall be able to lay before a court of justice all relevant evidence."

104 That case was concerned with criminal libel. An application had been made for a certificate to conduct a bingo club. The application was refused. The Gaming Board sought and received information from a chief constable of the county. Two witness summonses were directed to the chief constable and the secretary of the Board to give evidence and produce certain letters. The House of Lords held that the public interest required that the letters should not be produced since if the information given to the Board was liable to be disclosed, it might be withheld and the Board would thereby be hampered in the discharge of the duty imposed on it by statute to identify and exclude persons of dubious character and reputation from the privilege of obtaining a licence to conduct a bingo club.

105 "A plea of public interest immunity is a plea to be exempted from an obligation to discover or produce documents or to have admissible evidence excluded in curial proceedings." - per Brennan J in Jacobsen v Rogers.[72]

106 The principles were stated by Gibbs ACJ in Sankey v Whitlam.[73] His Honour said:

"The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer as follows:

'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies."

107 As his Honour went on to observe, however there may be cases where the nature of the injury to the nation or the public service is so obvious that the court does not have to go through the balancing process but declines an order for production.[74]

108 Where the claim to public interest immunity concerns the production of documents, the documents may be divided into two separate categories. First, there are those documents which are identified as a class of documents such as government papers, Cabinet submissions and Cabinet papers. The other category concerns the contents of particular documents which are damaging to the interests of the public. An example of the first category of documents can be seen in the cases of Sankey v Whitlam[75] and Commonwealth v Northern Land Council.[76] Examples of the second category are found in Conway v Rimmer[77] and Australian National Airlines Commission v Commonwealth.[78] The distinction was emphasised by what Gibbs ACJ said in the Sankey case when he said:[79]

"An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document."

109 But in relation to both categories the Court is required to perform the balancing exercise. The Magistrate did not carry out the exercise. It is the contention of the Hospital that the documents belong to a class of documents. Gibbs ACJ went on to state how the court should approach such an objection when he said:[80]

"Speaking generally, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes that there is a class of documents which in the public interest should be immune from disclosure."

110 His Honour then went on to identify documents which included Cabinet minutes, discussions between heads of departments and any documents relating to government policy at a high level.

111 It is accepted that the categories of public interest are not closed.[81] Further, the immunity is not tied to government information and government documents. The public interest immunity is wider. In D v National Society for the Prevention of Cruelty to Children,[82] Lord Diplock said:

"I see no reason and I know of no authority for confining public interest as a ground for non-disclosure of documents or information to the effective functioning of departments or organs of central government. In Conway v Rimmer [1968] UKHL 2; [1968] AC 910 the public interest to be protected was the effective functioning of a county police force; in Re D (Infants) [1970] 1 WLR 599 the interest to be protected was the effective functioning of a local authority in relation to the welfare of boarded-out children. In the instant case the public interest to be protected is the effective functioning of an organisation authorised under an Act of Parliament to bring legal proceedings for the welfare of children."

112 The courts have been slow however to recognise public interest immunity with respect to documents in cases other than involving departments or organs of central government. Where the courts have extended the public interest immunity they have done so by analogy with an established public interest category. Hence in D v NSPCC[83] the Court was prepared to establish a new category of immunity in a case where information about child abuse was provided by persons to an organisation concerned with the protection of children and it was held that this category was a proper extension of the immunity already given to police informers. The immunity is not confined to government matters. The immunity was discussed in cases involving confidential reports given by referees to prospective employers. See Bell v University of Auckland[84] and the House of Lords decision of Science Research Council v Masse.[85] In the latter case Lord Salmon quoted with approval what Browne LJ said in the Court of Appeal in that case:

"I am most impressed by the disadvantages of the disclosure of such confidential information ... but I have come to the conclusion that I cannot hold that the disclosure of this information is prohibited by 'public interest privilege'. It is now established that this 'privilege' is not confined to government departments or other organs of the central government, but it has so far been confined to bodies exercising statutory duties or functions. Further it has so far been confined to cases analogous to the 'police informer' immunity: ... if it extends to the present cases, it would mean that an employer who wishes to rely on some such confidential report (presumably with the consent of the author) would not be able to do so."[86]

113 It is trite to observe that the court is bound to balance the competing elements of the public interest and this will depend upon the facts in each case. Where the person or body objecting is seeking to establish a claim of immunity from production in circumstances where the claim has not been recognised before, the affidavit in support of the claim should state the ground or grounds relied upon so that the court may evaluate the competing interests.[87] The burden resting upon the party seeking the immunity is a heavy one where the immunity is not based upon central government or public service issues and does not fall into a category that has been recognised in the past. In those circumstances the party seeking protection would have to establish by analogy with a recognised category, the requirement of protection.

114 The High Court in the Commonwealth of Australia v Northern Land Council and anor[88] stated the principles which the court applies when considering the issue of public interest immunity.

• The classification of claims for public interest immunity into "class" claims and "contents" claims serves to differentiate between those documents the discovery of which would be injurious to the public interest whatever be the contents from those which ought not to be discovered because of particular content.

• Some classes of documents have in the past been classified as falling within a class of documents which are immune from production - e.g. the deliberations of Cabinet.

• The fact that the class of documents is a category recognised as being immune from production is not an absolute or inflexible classification. It could be described as a prima facie rule which recognises immunity for documents falling within that class.

• The court must weigh the prima facie rule of non-production against the competing public interest consideration which in most cases is the proper administration of justice, namely, the fundamental importance in a court proceeding that the parties have access to all relevant and other admissible evidence - this is the balancing process.

• If necessary the court may consider a document and inspect it, if necessary, to determine whether in fact it falls within a class which attracts immunity.

• Documents which have been recognised as a class which attracts the immunity results in an acceptance that the documents must not be produced for inspection and the court "will lean initially against ordering disclosure".[89] The weight to be attached to this prima facie rule depends to a large extent upon the nature of the class. For example, Cabinet documents.

Despite the prima facie rule the court must perform the balancing process. "The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations."[90]

115 As the High Court pointed out in respect of records of Cabinet deliberations which remain current or controversial, the Court doubted whether disclosure would ever be warranted in civil proceedings. But clearly as it is so often said, each case must depend upon its own particular circumstances. There are classes of documents and there are classes of documents. It is now clear that the class of documents is not confined to documents or information concerning the functioning of departments or organs of the central government. However, the immunity grew out of a privilege from production concerning such documents or information and where documents do relate to government departments or organs of the central government, it is most likely that the prima facie rule would apply. In other words, there would be a prima facie rule against production and it would take weighty matters of public interest to overcome the pre-disposition to refuse production.

116 It follows that the court is obliged to consider the question in a step by step process as follows:

• Is the claim of immunity based on a class of documents or the contents of particular documents?

• Identify the documents to be protected - their nature and likely content.

• What is the public interest claim for non-production? This of course will depend upon evidence but as the High Court has made clear, a mere assertion by a servant of the Crown does not preclude the court from fully considering the question.

• What is the competing public interest for their production?

• If necessary the court may examine the documents to determine their nature and importance with particular reference to whether they deal with any present or controversial topic.

• Do the protected documents fall within a class which has been accepted by the authorities and on principle as warranting protection from production?

• If the documents do fall within a recognised class of documents immune from production, what weight should in the circumstances be attached to the pre-disposition not to produce the documents, in the balancing process?

At a glance

Court

Decision date

Before

Source

Judgment (230 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (13)