Bova v Pharmacy Council of NSW

Introduction 4This is an application for interlocutory orders. The practitioner seeks access to the email communications exchanged between members of the Council that constituted the meeting. The production of the email communications are sought as a class of documents set out in a Summons directed to the Council for production of documents issued by the practitioner's solicitors. The Council resists access to the email communications on a number of bases details of which are set out later in these reasons. 5The practitioner is a pharmacist. On 20 December 2013 the Council imposed the first conditions on the practitioner's registration under s 150 of the National Law. The implementation of those conditions was stayed pursuant to an order of the Supreme Court. On 16 January 2014 the Council, pursuant to s 150 (b) of the National Law, varied the conditions on the practitioner's registration and imposed the January conditions. 6Following the meeting, which was conducted by an exchange of emails between council members, the February conditions were imposed on the practitioner's registration. The February conditions were placed on the practitioner's registration effective from 4 February 2014. No written or oral reasons were provided by the Council for the imposition of the February conditions. 7The practitioner has filed an appeal under s 159 of the National Law against the decision of the Council to impose the February conditions. Subsequent to the filing of the appeal, the practitioner sought a stay of the conditions pending determination of the appeal. The stay application was heard by Principal Member Dwyer on 21 February 2014 and his decision was reserved on that day. Oral reasons were given by the Principal Member on 28 February 2014 in respect of the stay, and a new Condition 3 was imposed on the practitioner in lieu of an earlier Condition 3 in the February conditions. 8To date, no complaint has been brought by the HCCC against the practitioner.

Matters in issue 9The gravamen of the practitioner's application is his assertion that the email communications are essential to the proper conduct of his appeal. This, it is submitted, is because of the wording of the relevant appeal provision in the National Law (s 159). The practitioner's counsel, Mr Sleight, in his oral submissions, asserts the language in the statute, properly interpreted, does not suggest the appeal is an appeal de novo in the strict sense of such an appeal. In summary, Mr Sleight submits to enable the Tribunal to engage in a "reconsideration" of the matter that it must have, not only the material before the Council at the time it made its decision, but access to the deliberations of the Council members in order to understand what they "considered" in reaching their decision to impose the February conditions. 10Mr Sleight submits that, as the Council opposes access to the email communications, it bears the onus of proving access should be denied. That proposition is not disputed by Mr Ginters, counsel for the Council. 11The Council submit that: (1)the nature of the appeal is an appeal de novo. Thus, because the Tribunal will hear the matter afresh, the email communications are irrelevant to that exercise; (2)the practitioner has not established a legitimate forensic purpose to have access to the email communications; (3)the email communications fall within the provisions of s 129 of the Evidence Act and are not discoverable. This section is asserted to apply because the Council members are acting as "Judges" as defined in the Evidence Act and the email communications attract the protections in s 129; (4)for public policy reasons access should not be granted to the documents because if such access is routinely granted it will undermine the Council's work when imposing conditions, if appropriate to do so, in the interests of the health and safety of the public; (5)s 130 of the Evidence Act applies to exclude access to the documents; and (6)the documents are subject to legal profession privilege and attract the protections in Part 3.10 of the Evidence Act (which applies by reason of s 68 of the NCAT Act).

Documents relied on in the application 12When the Council resisted producing the email communications to the practitioner's solicitors, the present application was brought to the Tribunal and argued before me at a time when notice had been given to the Tribunal that the practitioner sought orders to extend the time for the filing of documents for the appeal. The application was heard by me, on an urgent basis, in the absence overseas of Principal Member Dwyer. 13At the hearing before me, in accordance with well-established practice when production of documents is resisted on the grounds of privilege, I was provided with copies of the disputed documents as well as copies of correspondence passing between the practitioner's solicitors and the Council. Mr Sleight provided a helpful written outline of submissions on behalf of the practitioner. During submissions before me Mr Ginters provided copies of relevant legislation, and reference to a number of authorities on which he relied in support of his submissions.

Relevant provisions of the National Law and the NCAT Act 14It is convenient to address the dispute between the parties by reference to each of the bases submitted by Mr Ginters as relevant to resist disclosure of the email communications. Before doing so, however, it is useful to refer to the provisions of the National Law and the NCAT Act dealing with the rules of evidence and admission of documents. 15Schedule 5D Cl 2 of the National Law provides: Proceedings generally [NSW] In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit. 16By contrast, s 38 of the NCAT Act, which is found in Part 4 - Practice and Procedure (and the notes which do not form part of the Act, but are for guidance) provides as follows: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. 17Section 67 of the NCAT Act was also relied on in these proceedings. It provides as follows: 67 Privileged documents (1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995: (a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence, (b) section 10 (Parliamentary privilege preserved), (c) Part 3.10 (Privileges) of Chapter 3. (2) In this section:"disclosure" of a document includes the following: (a) the provision of copies of the document, (b) the granting of access to the document, (c) the disclosure of the contents of the document. "document" includes a part of a document."NSW court" has the same meaning as in the Evidence Act 1995. 18But s 38 and s 67 of the NCAT Act, which are each found in Part 4, are subject to s 35 of that Act. Section 35 (together with the explanatory notes) provides as follows: 35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules. The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17 (3). Section 4 (4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules. Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods within which applications or appeals under that legislation are to be made. 19Schedule 5 of the NCAT Act, insofar as it relates to the Health Practitioner Division List, makes it clear that the objects of the NCAT Act do not override the objects and principles in the National Law found in s 3 and s 3A of that law. The Schedule does not otherwise override or limit the operation of s 67 of the NCAT Act. I therefore accept that provision is relevant to this application.

Is an appeal under s 159 an appeal de novo 20I first consider whether an appeal under s 159 is an appeal de novo. This is because Mr Ginters' primary argument is that, because an appeal under s 159 is an appeal de novo, the Tribunal will be considering "afresh" or "anew" the evidence relevant whether there is a risk to the health and safety of the public associated with the practitioner's ongoing practice as a Pharmacist. He submits that, as the Tribunal will be considering whether or not under s 150 of the National Law it is appropriate to impose conditions for the health and safety of the public, it is irrelevant what discussions are revealed by the email communications between the Council members. Rather, he submits, what is relevant is the material that was before the Council including the report, and any fresh or further material adduced at the hearing of the appeal. 21By contrast, Mr Sleight places his emphasis on the word "reconsideration" in s 159. He submits in his written submissions the language of the statute "leans towards the appeal being a hearing de novo" and goes on to refer to an unreported decision of Young J (as his Honour then was) in Modern Woodcraft Pty. Ltd v Nott NSWSC (unreported) 7 March 1997 and to the decision of Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 at [17]. In his oral submissions, Mr Sleight submitted "reconsideration" denotes an obligation on the Tribunal to consider the reasoning of the Council members in the email communication because the Council did not publish reasons for its decision.

Discussion and Findings - appeal de novo 22I note the proper construction of s 159 is not subject of appellate authority in NSW. However, the wording and the effect of the NSW and other State appeal provisions have been considered in several first instance Tribunal decisions under the National Law, and by the Victorian Court of Appeal. 23Section 159 of the National Law provides as follows: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession- ... (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council;.... An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given. 24In Perceval v Nursing and Midwifery Council of NSW [2011 NSWNT20 (July 2011) at [7] the Tribunal said: In conducting an appeal against a decision of the Council and exercising its powers under section 159C of the Law, the Tribunal considers the background to the Council's decision and the material it considered before coming to its decision. The Tribunal also considers the Council's reasons for its decision that have been recorded. Should any evidence about matters occurring before the Council's decision that was not available to the Council but becomes available subsequently and is relevant to the Tribunal's consideration of the appeal, the Tribunal will consider that evidence. Similarly, it will also consider any relevant evidence that comes into existence after the Council has made its decision. Having considered the evidence available to it, the Tribunal then decides whether to make an order terminating, varying or confirming the period of suspension. 25A later Tribunal considered this provision in some detail (see Camacho v Psychology Tribunal of NSW [2011 NSWPT 1] (September 2011)). That Tribunal annexed to its reasons written submissions on the topic received from counsel instructed by the Crown Solicitors Office. The Tribunal summarised its findings by reference to those submissions and said: This matter was the first occasion on which the nature of an Appeal under section 159 of the National Law (NSW) was considered by the Psychology Tribunal of New South Wales. Prior to the commencement of the Inquiry submissions were sought from the parties as to the nature of the Appeal. The Appellant was not represented and indicated he was content to rely upon the submissions made on behalf of the Respondent and the decision of the Tribunal. The submissions made by the Respondent came in to the evidence as exhibit 43 and is reproduced at annexure B hereto. In summary, the Tribunal accepts the submissions made by the Respondent and has proceeded by way of a hearing de novo. The Tribunal makes the following observations on this matter. There is nothing in the National Law (NSW) to indicate that Parliament intended for the Tribunal to have a role in identifying errors in the processes of the Council (previously the Board). The Tribunal does not play a 'supervisory' role with respect to the Council. The Tribunal accepts the submission that the nature of an appeal ultimately depends on the terms of the statute conferring the right of appeal (see paragraph 6 of the submission). The terms of section 148E require the Tribunal to make orders as it thinks proper which indicates that the Tribunal not be constrained by the need to identify error on the part of the Council/Board but rather is obliged to give its own decision on the evidence before it (see paragraph 8 of the submission). At this point the Tribunal notes some features of the nature of a Board (now Council) Inquiry. There is no requirement for recording of the proceedings or for there to be a legal member sitting, it is not open to the public and there may not be a contradictor. When looking at the entirety of the scheme created by the National Law (NSW) there is a clear legislative intent that decisions should be based on a person's current fitness to practise. It cannot be supposed that Parliament intended to confine the nature of an appeal - this conclusion is reinforced by a consideration of the severe consequences that flow from the outcome of such an appeal (see paragraph 12 of the submissions). Giving appropriate regard to fairness considerations an appeal could not be conveniently or readily undertaken unless it proceeded by way of a hearing de novo. This is particularly so given the administrative nature of the Board/Council Inquiry as opposed to the quasi-judicial procedure of the Tribunal, noting the power of the Tribunal to compel witnesses to attend and obtain documents (see paragraphs 14, 15 and 16 of the submissions). The Tribunal adopts the submissions made at paragraphs 17 to 23 as an accurate representation of the legislation. As to the factors set out in paragraphs 25 to 40 of the submission that suggest that the appeal is not de novo the Tribunal makes the following observations: The Tribunal would not necessarily have the benefit of a transcript of the proceedings of the Board/Council Inquiry to conduct an appeal in any fashion (other than de novo) as it is not a requirement to keep a transcript. This would not be satisfactory given the seriousness of the subject matter of the appeal. The Medical Tribunal decisions referred to indicate an inconsistent approach to the nature of the appeal and in any case they are not binding precedents on this Tribunal. Further the Tribunal accepts the distinction made between the decision in Woolcock v Medical Board [2009] NSWMT 3 and the other Medical Tribunal decisions made at paragraph 33 of the submissions. The Tribunal accepts the submission of the Respondent that the Tribunal is to substitute its own view on a consideration de novo of the evidence before it rather than limit its role to detection of error in the decision of the Council. A hearing de novo will also accommodate changes in circumstances that may significantly impact upon the outcome of a matter, ensuring that the decision is contemporaneously appropriate. This may involve the consideration of steps taken by the practitioner to remediate deficits their conduct identified or of additional complaints that have been made. In either case the consideration of such matters contribute to the efficient consideration of the matter. 26The language employed in the various appeal provisions in the National Law was discussed by the Nursing and Midwifery Tribunal in its decision in McMahon v NSWNMT [2013] NSWNMT4. Although not directly in that decision considering s 159, the Tribunal said by way of observation at [66]-[67]: The nature of an appeal de novo is discussed by Mason CJ and Deane J in Harris & Caladine (1991) 172 CLR 8. Their Honours explain the jurisdiction exercised on such an appeal is "a jurisdiction to consider afresh not the propriety of making a ...... order but the proper order on the ..........original application". They further explain the order, the subject of the appeal is, unless set aside, a valid order. This explanation gives weight to the Tribunal's decision in Comacho that the appeal under s 159 is a de novo appeal because the legislation provides on a reconsideration for a tribunal to make the "proper" order that should have been made in the matter. It is also appropriate to note at this point the similarity of the language in s 175C and that in s 32 (3) of the now repealed Nurses & Midwives Act 1991 (NSW) ("the repealed Act") dealing with powers of a Tribunal on determining an appeal. However, unlike s 175, s 32 (3) referred to the appeal being "by way of rehearing" and with power to admit fresh evidence or evidence in addition to or in substitution for the evidence before the Board. Further s32 (4) preserved the operation of the Board's determination until the appeal was determined. Such an appeal was considered to be an appeal de novo (see Richardson v Nurses and Midwives Board [2009] NSWNMT 9). In summary, if the appeal is an appeal de novo, then a tribunal hearing an appeal under s 175: must apply the law in force at the date of the hearing of the appeal, not the date of the NSW Board's decision; is required to conduct the proceedings by determining the appellant's application for registration afresh. ... take into account the evidence adduced by the respondent; take into account facts which must be established by the appellant, who bears the onus of proof, to the requisite civil standard at the date of the hearing of the appeal, and apply those facts to the relevant provisions of the National Law; take into account all relevant considerations, and exercise any discretion as if hearing the original application; and bear in mind that, should for any reason the appeal be withdrawn, the original decision of the NSW Board will remain the relevant decision. 27On this topic, Mr Gingers referred to the decision of the Victorian Court of Appeal in Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 and a decision of the South Australian Health Practitioner Tribunal in I v Medical Board of Australia [2011] SAHPT 18. Each of these decisions discuss s 199 of the National Law in force in those respective States. That section is materially different to s 159 (a New South Wales provision). That is because s 199 simply refers to a practitioner, who has had conditions placed on his/her registration, having a right to appeal to the appropriate Tribunal. The provision does not describe the nature of such an appeal, what the Tribunal is to do on hearing the appeal, and does not include a provision for the adducing of fresh or further evidence. The decision in Kozanoglu however is instructive. The Court of Appeal, having referred to the three clearly defined categories of appeal (stricto sensu, an appeal by way of rehearing with the right to admit fresh evidence, and when error in the court below must be found, and an appeal de novo), then say: In Dwyer v Calco Timbers Pty Ltd, a unanimous decision of the High Court, the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said of this passage: But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeal is concerned, may use the term "appeal" to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh J pointed out in Eastman v The Queen: Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be. In short, it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature. An appeal from a decision to take immediate action by the IAC to the responsible tribunal, under the National Law, is clearly not an appeal stricto sensu. VCAT is not a court, and would not be the type of body expected to consider legal error, still less jurisdictional error, although, of course, it is not precluded from doing so. 28The word "reconsider" is defined in the Macquarie Dictionary as follows: To construct again; To consider again with view to change of decision or action. 29I accept the majority of decisions to date on the interpretation of the NSW appeal provisions of the National Law regard the appeal rights as ones which provide for an appeal de novo. However, none of the NSW decisions discussed had the benefit of the observations of the Court of Appeal in Kozanoglu, albeit that discussion took place in the context of a different type of appeal under s 199 of the National Law as in force in Victoria, but not applicable in NSW. 30It may be that an appeal under s 159 is not an appeal de novo in the strict sense of the definition of such an appeal (I note Osborn Concise Legal Dictionary defines "de novo" as "Anew") but a statutory hybrid or variant as described by the High Court in Dwyer. But two things are clear: the statute mandates the Tribunal engage in a "reconsideration of the matter", and in that deliberative process, it may receive fresh evidence, or evidence in addition to or substitution for the evidence which was before the Council when it considered the matter. 31Carefully considering the language in s 159 (3) it appears to me that the reconsideration of the matter by the Tribunal does not require the deliberations of the Council in forming an opinion to impose conditions to be before it, or for the practitioner to have access to the email communications to properly conduct his appeal. Nor do I find that the absence of reasons requires those deliberations in the email communications to be before the Tribunal hearing the appeal. 32I note the National Law does not require a Council in the circumstances which occurred to give written reasons for its decision. The Council, as I will shortly explain, is not, in my view a judicial or quasi judicial body. It is an administrative body. It is not bound by the general obligation on a court or Tribunal to give reasons (see Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 422 per Meagher JA; Petitt v Dunkley [1971] 1 NSWLR 376 at 387). 33The language in s 159 (3) makes it plain that a Tribunal may reconsider the matter on entirely different material to that which was before the Council. In those circumstances a "reconsideration" of the deliberations of the Council on the material that was before it would be otiose. But more relevantly in my view what the statute requires is a reconsideration of the matter, that is, is the Tribunal satisfied at the date it hears the appeal that it is appropriate to suspend the practitioner's registration or place conditions on his registration for the protection of the health and safety of the public. 34In summary, whether the appeal is an appeal de novo in the classic definition of such an appeal, or a variation or hybrid of that type of appeal, I am not satisfied that it is relevant for the Tribunal, or the practitioner, to have available the deliberations contained in the email communication. However, on the basis I may be wrong in that conclusion, I also consider the other matters advanced on behalf of the Council in resisting production of the email communications.

A legitimate forensic purpose for access to the email communications 35Mr Sleight submits "the documents sought are, by their description, sufficiently relevant so as to establish they are sought for a legitimate forensic purpose. This is an adjectival not substantive test". In support of this proposition he refers to the decision of Beaumont J in Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 and Dorajay Pty Ltd v Aristocrat Lesure Limited Unrep FCA 13 May 2005 per Stone J at [17]. 36In the Arnotts' case Beaumont J explained: 42. The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose (see Botany Bay Instrumentation and Control Pty. Ltd. v. Stewart (1984) 3 NSWLR 98 at pp 1OO-1). But, as Deane and Gaudron JJ. observed in Hamilton v. Oades [1989] HCA 21; (1989) 85 ALR 1 (at p 11); the Court's general powers in this area have a dual aspect: "The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice...(This) power...is not restricted to defined and closed categories...In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously and unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustifed trouble and harassment': Oceanic Sun Line Special Shipping Co Inc v. Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411; [1988] HCA 32; 79 ALR 9 at 45." 43. In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly. 44. Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts . (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly. 45.... 46. The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established. (2) Unfair prejudice to Mattingly? A subpoena to produce documents must specify with reasonable particularity the documents which are required to be produced (see Lucas Industries Ltd. v. Hewitt (1978) 45 FLR 174 at p 188; R. v. Barton (1981) 2 NSWLR 414 at p 428; Lane v. Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981) 35 ALR 322 at p 332). But no such point is taken here. What is said by Mattingly to be the vice of this part of the subpoena is that it seeks, on its face, to call for documents which, if complied with, would require the compulsory surrender of a privilege, viz. the privilege against self-incrimination (cf. Federal Commissioner of Taxation v. Citibank Limited 89 ATC 4268 at pp 4277, 4293). [original emphasis]. 37Mr Sleight's argument on this topic again centres on the word "reconsideration" in s 159. He submits, at paragraph 16 of his submissions, "[t]he Tribunal is charged with reconsidering the matter. That carries with it the obligation of considering all matter that was before the Council, not just the resolution of the decision". 38Mr Ginters submits, correctly, that the onus is on the applicant, in this case the practitioner, to satisfy the Tribunal, of a legitimate forensic purpose to support access to the email communications. He relies on two decisions of the former Administrative Decisions Tribunal (QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54 and v QQ Commissioner of Police, NSW Police Force (No 2) [2011] NSWADT 79 and the authorities quoted in those decisions. In particular, he relies on Beazley JA's (as her Honour then was) exposition of the law on this topic in Attorney General for NSW v Chidgey [2008] NSWCCA 65 at [58]-[59]. Thus, he submits, the practitioner must establish "concrete grounds", or that it is "on the cards" that the documents, to which access is sought, will materially assist his case. 39I accept that Mr Sleight is correct when he states the obligation under the section is to consider "all the matter that was before the Council". Using the description of adjectival relevance expounded by Beaumont J, I am required to consider whether the email communications have apparent relevance to the issues to be resolved at the appeal. I must also consider whether the practitioner has demonstrated it is "on the cards", or that there are "concrete grounds", that access to the email communications will materially assist his appeal. 40The Council's deliberations, which could have been oral, were in this case, for convenience to obtain a speedy decision, contained in the email communications. Those deliberations, contained in the email communications, were not matters before the Council. Access to the material on which the Council reached its decision to impose conditions under s 150, save and except, the legal advice provided to the Council, is not, as far as I am aware, disputed. If it has not already been provided to the practitioner's solicitors it is material in respect of which he can demonstrate a legitimate forensic purpose, particularly if those documents, including the report, are relied on by the Council on the reconsideration of the matter by the Tribunal. But the email communications do not appear to me to satisfy the test of adjectival relevance to the issues to be determined at the appeal. 41In reaching my decision on this issue I also have regard to any prejudice to the Council if access to the email communications is granted. 42Mr Ginters, in my view, cogently, points out that if documents, such as the documents now sought, are to become readily available to an appellant, it will necessarily constrain the proper decision making of other councils, particularly a council faced, on an urgent basis, with a consideration of whether or not it is appropriate for the health and safety of the public to suspend a practitioner's registration, or to impose conditions on his or her registration. He submits, and I agree, the production of deliberations, as distinct from the matters before the Council, would be oppressive. It is likely the availability of such deliberations could undermine full and frank exchanges between council members before a proper decision is reached. Such a constraint may undermine the objective and principle of the National Law set out in s 3A. 43The Council's task under s 150 may, from time to time, require it to make a speedy decision on limited information. A review of the Council's action may be made under s 150A of the National Law. Further s 159 permits, if appropriate, an avenue for a more fulsome consideration of any risk to the health and safety of the public. As noted by the Court of Appeal in Kozanoglu: The IAC will generally be required to make quick decisions on the basis of limited information. When full information is later obtained, a belief which, on the limited information was reasonably based, may be shown to have been in error. Accordingly, the IAC and the Board must always be conscious of the possibility of error. The consequences of that error may be serious. Two safeguards against such consequences should therefore be kept to the forefront. The first is the importance of a timely referral to a panel, or to VCAT. The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance. 44Rather, I find here is an element of "fishing" in seeking access to the deliberative processes of the Council in the email communications rather than a legitimate forensic purpose. 45Although Mr Ginters referred me to s 41N (b) of the National Law I do not find that provision directly relevant to the issues to be determined in this application.

Does s 129 of the Evidence Act apply to the Council 46Mr Ginters submitted that the email communications reflect a determination or judgment, and they are subject to the protections provided in s 129 of the Evidence Act. In support of this proposition he relied on a number of statutory provisions and definitions in both the Evidenced Act and the Interpretation Act. 47Section 129 (1) (2) and (3) of the Evidence Act provides as follows: (1) Evidence of the reasons for a decision made by a person who is: (a) a judge in an Australian or overseas proceeding, or (b) an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration, or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person. (2) Such evidence must not be given by tendering as evidence a document prepared by such a person. (3) This section does not prevent the admission or use, in a proceeding, of published reasons for a decision. ... 48To link or establish that this provision applies to a Council member, Mr Ginters relied on the definition of "Judge" in the Dictionary in the Evidence Act. Judge is defined as "in relation to a proceeding, means the judge magistrate or other person before whom the proceeding is being held". Mr Ginters then relies on the definition of "person" in the Interpretation Act. That definition is " 'person' includes an individual, a corporation and a body corporate or politic". 49In the context of this argument it is also necessary to consider the definition of an "Australian Court" and "Australian or overseas proceeding". The definitions of each are found in the Dictionary in the Evidence Act. Australian court means: the High Court, or a court exercising federal jurisdiction; or a court of a State or Territory; or a judge, justice or arbitrator under an Australian law; or a person or body that, in exercising a function under an Australian law, is required to apply the rules of evidence. Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court. 50Mr Ginters readily conceded that Council members do not have the benefit of immunity provisions similar to those extended to Tribunal members (see s 165E of the National Law). But he submitted their role could be considered akin to that of an arbitrator or a person referred to in the definition of Judge, and the email communications thus attract the protection afforded by s 129. 51The Council's powers under consideration are found in Sub-division 7 of Division 3 of Part 8 of the National Law. The heading of the sub-division (which forms part of the law) is headed "Powers of a Council for the Protection of the Public". Membership of Councils is dealt with in s 41E of the National Law. Part 3 of Schedule 5 C of the National Law Cl 18 provides "the procedure for the calling of meetings of a Council and for conduct of business at those meetings is, subject to this Law, as decided by the Council". Cl 22 provides "A Council must cause full and accurate minutes to be kept of the proceedings of each meeting of the Council". Section 150 does not require a Council, after considering a matter before it, to give written reasons for its action to impose conditions, but to give written notice of action taken under the section to the relevant practitioner. 52In Ryan & Anor v Watkins & Anor [2005] NSWCA 426 Campbell AJA (as his Honour then was), although deciding an appeal where the single issue was whether the provisions of s 130 of the Evidence Act applied to certain documents created by a medical assessor under the Motor Accident Compensation Act 1999 (NSW), referred to the definition of Judge within the provisions of the Evidence Act. His Honour's reasoning is apposite to this matter. As his Honour noted at [120] "it would take very clear words indeed to indicate that the Parliament had intended that "an Australian court" could include a person or body that was not independent of executive or administrative oversight in decision-making and was not bound by rules of procedural fairness ... There are no such words in the Evidence Act ". 53I am satisfied that his Honour's reasoning that the medical assessor was not an arbitrator is equally applicable to the Council. I am satisfied a member of the Council is not akin to an arbitrator who resolves a dispute between parties, and gives reasons for his or her decision. Nor do I accept for the reasoning exposed by Campbell AJA, and set out above, that the "person" referred to in s 129 means a body such as the Council. At [136] his Honour notes that the proceedings referred to in s 129 are proceedings "capable of producing a decision". Here the Council did not have to produce reasons for its decision, or to act in accordance with the principles of natural justice and procedural fairness. It was not required to apply the rules of evidence. Nor was not required to determine an issue in dispute between the parties. There was no contradictor. It is not a body which is independent of executive or administrative oversight. Rather, it was only required to act if it found it was appropriate to do so in the interests of the health and safety of the public. 54In summary, I am satisfied that the email communications are not privileged by reason of s 129 of the Evidence Act because the Council is not a Judge as defined in that section. Nor am I satisfied there has been a "decision" as that word is explained by Campbell AJA at [102] - [105] as being "a determination or judgment of a substantive or procedural issue".

Public Interest immunity 55Mr Ginters submitted that the documents sought should not be adduced as evidence in the appeal because the public interest in preserving the confidentiality of the email communications outweighs the public interest in admitting the documents into evidence. The basis of his submission is reliance on the common law principles of public interest immunity as now incorporated into s 130 of the Evidence Act. 56The thrust of Mr Ginters' argument on this topic is that the role and functioning of the Council, particularly in urgent situations which may call for a meeting to be conduct via email, would be undermined if its deliberations could be adduced in evidence in appeal proceedings and thus become publicly available. 57I accept that the burden of establishing the applicability of public interest immunity under s 130 rests on the Council (see Uniform Evidence Law 10th ed. Stephen Ogers, Thomson Reuters at [1.3.13660]) 58It is important to note that no evidence was adduced before me by the Council in support of its assertions on s 130. 59Mr Sleight's written submissions on this topic, which were prepared prior to the hearing, are necessarily brief. He quotes from the judgment of the High Court in Alister v R [1984] HCA 85; (1984) 154 CLR 404 at 412: 4. Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises - should the court look at the documents to assist it in answering these questions? (at p412) 5. The fact that disclosure of the fact whether the documents sought by the subpoena in the present case exist, and their production if they do exist, would be harmful to the public interest is sought to be established by the affidavit of the Attorney-General. But Sankey v. Whitlam decides that an objection, even if properly taken, is never conclusive, although there will of course be instances (such as documents containing defence secrets in time of war) when, as Stephen J. said in Sankey v. Whitlam, (1978) 142 CLR, at p 59 "the Court's acceptance of the claim (to Crown privilege) may often be no more than a matter of form". When the grounds of objection in the present case are examined it will be seen that the first ground (that stated in par. (a)) is merely preliminary and not in itself sufficient. 60Mr Sleight observes in his written submissions that "[t]he Council have adduced no evidence that harm would be occasioned by the production of the documents sought". 61Section 130 of the Evidence Act, so far as appears relevant to me on this application, provides as follows: 130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) ... (b)... , or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) ..., or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) ..., (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) ... (6) A reference in this section to a State includes a reference to a Territory. 62In Odgers the learned author notes at [1.3.13520]: Given the ALRC's intention that this provision should substantially reflect the common law of "public interest immunity", it is likely that the phrase("relates to matters of state") will be given a wide interpretation. Nevertheless, this statutory provision may not go as far as the common law, since that has been defined in terms of matters of "public interest" rather than matters of "state". In practice, however, the common law has always related the "public interest" to matters of government broadly defined. In any event, it is clear that s 130 will not protect confidential information provided to journalists, doctors and like persons on some argument based on public interest (but see s 126B) [footnotes omitted] 63I did not have the benefit of substantial argument, or any written material on behalf of the Council before me on this topic. Mr Ginters did not address whether the Council documents may be regarded as "relating to matters of State". Nor did either party address the threshold issue raised by s 131A of the Evidence Act. No submissions, other than the generalised submission referred to above, were directed to me by Mr Ginters suggesting that the adducing of the email communications would result in disclosure of a "confidential source of information relating to the enforcement or administration of a law (s 130 (4) (e)), nor did he directly submit that the disclosure of the email communications would be contrary to s 130 (4) (c). 64It is necessary that I briefly address the matters identified above. That may be conveniently done by reference to the decision of the Court of Appeal in The State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60. In that decision Allsop P, with whom Hodgson JA and Sackville AJA agreed, explained that s 130 cannot be properly invoked unless the criteria in s 131A is established. I accept for the purposes of this application it is not suggested that s 131A could not be invoked. The President set out the principles applicable under s 130 at [42] - [44] as follows: Both the common law and s 130 require two broad stages of analysis: first the assessment of the character of the information or document (as state papers or as relating to a matter of state) and secondly a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government. The reasons of the majority (Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J) in Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604 (" NLC ") at 614-619 lay out the principles to be applied in the operation of the common law of public interest immunity. It has been accepted that those principles assist in informing of the content and operation of the Evidence Act , s 130: Eastman v The Queen (1997) 76 FCR 9 at 63 (per curiam); Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010; 100 FCR 229 at 246 (von Doussa J). None of the parties in the present case suggested otherwise. It is therefore unnecessary to consider the extent to which, if at all, s 130 of the Evidence Act departs from common law principles. It is not appropriate to take one line or one idea from the discussion by their Honours in NLC . The essence, however, of the underpinning ideas expressed in the reasons is the prevention of prejudice to the subject to which the Evidence Act , s 130(4)(f) is directed: the proper functioning of government of the polities of the Federation. 65The first question which must be addressed is whether the Council's email communications relate "to matter of State". The objects and guiding principles of the National Law are expressed in s 3 and s 3A (the latter being a NSW provision). Part 5A deals with NSW Councils. Section 41D provides that a Council "has and may exercise the functions conferred or imposed on it by or under this Law or another Act". Section 41B (3) (a) records that a Council is body corporate with perpetual succession. The Council members are as prescribed by regulation or Part 1 of Schedule 5C for the relevant Council. 66In Public Transport Ticketing Allsop P discussed whether a body corporate established under a NSW Act was a "person" for the purposes of s 130 (2). 67In that case the evidence before the Court of Appeal established that the particular body corporate was to be regarded as an instrument of the Crown. There is simply no evidence before me to establish that the Council, as a body corporate, is an instrument of the Crown and thus its documents relate to a matter of State for the purposes of s 130. Nor was argument addressed to the question of a "class of documents" as distinct from the content of a particular document (see Alister). Thus, I cannot be satisfied, on the evidence adduced in this application on behalf of the Council, that it has satisfied the evidential burden that s130 is potentially applicable because of the character of the email communications is "a matter of State", or weigh and balance the prejudice, if such documents became publicly available to the proper functioning of government as against the public interest in their disclosure.

Legal Professional Privilege 68This claim was subject of little by way or argument or submissions before me. Mr Ginters provided me with copies of the email communications and highlighted in yellow those parts which he asserted referred to legal advice. Mr Ginters did not press legal professional privilege as his predominant or primary submission in opposing access to the email communications. 69The correspondence which apparently refers to legal advice is an email from Ms Nina Beeston, Executive Officer of the Council to the Council members. The email refers to "the briefing note to Kate Richardson", and a separate email refers to "Kate Richardson's submissions". 70Mr Sleight notes in his written submissions "The Council adduces no evidence in support of its claim. The class of documents do not, on the face of the description fall within the category". He further submits "Further, such evidence may reveal circumstances in which any legal professional privilege originally attaching to the communication may have been lost". 71I find merit in Mr Sleight's submissions on this topic. The documents, highlighted in yellow, in respect of which privilege is claimed, are not the email communications between the Council members as constituting the meeting. Rather, they are emails of the Executive Officer to the Council members. The Executive Officer's emails may be subject of legal professional privilege, but they are not the documents to which access is sought pursuant to the Summons in this application. 72In summary I do not find the claim of legal professional privilege is sustainable in respect of the email communications.

Conclusions 73I have found that as the appeal is either an appeal de novo, or a hybrid or variant of such an appeal, there is no relevance in the adducing of the email communications. I have further found that the practitioner has not established a genuine forensic purpose for access to the email communications. Accordingly, practitioner's application for access to the email communications is dismissed.

Costs 74The practitioner sought that the Council pay his costs of this application. No arguments were addressed to me on the question of costs in the limited time in which I heard this application before the Easter holidays. In these circumstances I propose that the parties' costs of this application be reserved and determined at the conclusion of the appeal by the Tribunal.

Amendment of the time-table 75The parties provided the Tribunal with a proposed amended time-table and asked the Tribunal to substitute, by consent, that time-table for the time-table set by Principal Member Dwyer. The proposed time table provides for dates for material in reply to be served on 5 May 2014 and 9 May 2014. These proposed dates create a practical problem. 76The hearing is listed for five days commencing on 12 May 2014. The time-table proposed does not allow adequate time for the documents to be lodged with the Tribunal and forwarded to the Tribunal members with sufficient time for proper reading by them of the relevant documents. I have therefore substituted a new time-table for the parties to each serve their evidence in accordance with the agreed consent time-table, but varied the time-table to provide material, if any, in reply is to be filed by either party by 2 May 2014.

ORDERS 77The Tribunal makes the following orders: (1)The application by Nicholas Patrick Bova ("the practitioner") for access to the email communications being the deliberations of the members of the Pharmacy Council of NSW on 3 February 2014 is dismissed. (2)Costs of the application are to be costs in the appeal. (3)The following time-table for filing of documents for the appeal is substituted for the time-table proscribed by Principal Member Dwyer: (a)By 5pm on 9 April 2014 the Pharmacy Council serves the evidence on which it seeks to rely; (b)By 5pm on 23 April 2014 the appellant serves the evidence on which he seeks to rely; (c)By 5pm on 2 May 2014 the Pharmacy Council and the appellant serves material, if any, in reply; (d)Each party is to lodge with the Registrar, Occupational Division 5 copies of all documents relied on by that party together with 4 CD's of all documents by 5 May 2014.

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: 29 April 2014