Larter v Paramedicine Council of NSW

NCAT Occupational|2022-11-18

reasons in respect of summonses

These reasons should be read in conjunction with our reasons dealing with the substantive appeals [2023] NSWCATOD 12.
On 20 October 2022, the Tribunal issued a Summons at the request of the Appellant requiring the Australian Health Practitioner Regulation Agency (AHPRA) (the AHPRA Summons) to produce various categories of documents.
The categories of documents specified in the AHPRA Summons to be produced have been narrowed down to two categories, namely: 1. a copy of any document and correspondence exchanged between AHPRA and the Minister, the Honourable Brad Hazzard MP, in his capacity as the New South Wales Minister for Health and Medical Research, and any delegates, officers and staff of the Minister's Office, whether operating in their private, ministerial or departmental capacity which relates, or refers to John Larter, created, transmitted, sent or received in the period 1 July 2021 to 14 October 2022 (Category 1 Documents); 2. an un-redacted and complete copy of each complaint made in respect of or about John Larter in the period 1 July 2021 to 14 October 2022 (Category 2 Documents).
The AHPRA Summons had an endorsement to the effect that the last day for service of the Summons was to be 21 October 2022.
The AHPRA Summons was not served by that date and was only received by AHPRA on 24 October 2022.
Despite the failure by the Appellant to serve the AHPRA Summons in the stipulated time he presses for the production of the documents in the two categories set out above. Notwithstanding an earlier willingness to try and produce the relevant documents, AHPRA now opposes the production of the documents.
On 17 November 2022 we held that we would not extend the time for production of the documents sought under the AHPRA Summons.

Category 1 Documents

In summary, it was contended on behalf of the Appellant that this case was highly political and the documents, if they exist, may bear on the independence of the Paramedicine Council of NSW (the Council), the Respondent in these proceedings. Transparency, it was said, required production.
AHPRA is not a party to these proceedings, and referring the complaints received to the Council for further management, is not the decision the subject of these proceedings.
As is clear from the Summons, the request for the production of documents is addressed to an exchange between the Minister, or the Minister's Office, and AHPRA.
It is entirely unclear how such an exchange of documents, if they exist, is in any way relevant to the appeals and grounds of appeal in these proceedings.
The suggestion that the documents, if they exist, may bear on the independence of the Council appears to be extremely tenuous.
The Health Practitioner Regulation National Law (NSW) (National Law) makes plain that the Council is independent of the Minister. Section 41DA of the National Law provides that the Council is not subject to the control or direction of the Minister in its assessment or management of complaints. It is the Council which has the power to suspend and place conditions on a practitioner or student's registration.
There is no decision of the Minister, or the Minister's Office, concerning the Appellant under the National Law. The decisions being appealed are that of the Council. The Minister is not a party to these proceedings.
There is no allegation in the Appeals that AHPRA acted at the behest of the Minister, or the Minister's office, in referring complaints to the Council. There is no allegation in the Appeals that the Council acted by reason of any communication between the Minister, or the Minister's Office, and AHPRA.
In our view, there is no legitimate forensic purpose established by the Appellant in respect of Category 1, and the documents have no apparent relevance to the issues in dispute (see Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27] and Portal Software v Bodsworth [2005] NSWSC 1115 at [22] and [23]).
In our view, Category 1 squarely fits into that category of "fishing" (see Stuart v Commissioner for Fair Trading [2018] NSWCATAD 90 at [19] applying CPJ v The University of Newcastle [2017] NSWCATAD 350 at [9] to [12]), a view reinforced by the submission "if the documents exist".
There is no evidence before us, and no grounds of appeal, justifying a conclusion of a "highly political" case, a submission we reject.
In our view, it is most unlikely that the documents will materially assist on any identified issue, or that there is a reasonable basis beyond speculation that it is likely the documents will do so.

Category 2 Documents

In respect of Category 2, AHPRA informed the Tribunal that following discussions with the Solicitors for the Appellant the category was narrowed by the qualification that the complaints the subject of the request, be those that were provided to the Council or the Health Care Complaints Commission (HCCC) in the relevant period 1 July 2021 to 14 October 2022. There were three documents within this period, namely, August to September 2021.
The Appellant accepted that a redacted copy of each of those complaints had previously been provided to the Appellant.
We note that although the names, addresses, and relationship between the complainants and the Appellant were redacted, none of the details of the actual conduct complained of by the complainants had been redacted.
The Council is entitled under s 150 of the National Law to proceed to a hearing without a complaint having been made (s 150(4)). In other words, simply on the receipt of the information identifying conduct which may come within the scope of a s 150 hearing the Council would be entitled to proceed on the information, even if it was anonymously brought to its attention. Where evidence of the conduct of a practitioner is provided justifying a hearing the Council would then need to ensure that the material specifying the action of the practitioner identified for its attention establishes a sufficient foundation for the satisfaction of the Council under s 150(1) of the National Law, and whether it is appropriate for any orders to be made.
We also note that the complaints that were provided to the Council by AHPRA had been redacted as explained above so that the Council only received redacted copies of these complaints and proceeded to deal with the substance of the complaints in its determinations.
In the circumstances, the Council had to assess the actions of the Appellant as identified in the complaints without reference to the identity or relationship between the Appellant and any of these complainants. In each case the specific conduct complained of was identifiable by reference to materials published by, or quoting, the Appellant.
In our view, the redacted information was therefore not relevant to the Council's inquiry under s 150 of the National Law.
For the reasons set out above we were not prepared to extend the time for the enforcement of the AHPRA Summons.

Paramedicine Council of NSW Summons

On 20 October 2022, the Tribunal issued a summons at the request of the Appellant requiring the Council to produce three categories of documents, namely: 1. A copy of any minutes of meeting, or any Document which is a record of or pertains to, of the meeting between the Paramedicine Council of New South Wales and the Health Care Complaints Commission on or around 17 May 2022 (Category 1 Documents). 2. A copy of each Document and Correspondence exchanged between the Paramedicine Council of New South Wales and the Minister for Health and Medical Research, the Honourable Bradley Hazzard, and/or the Minister's Office, which relates to or refers to John Larter which was created, transmitted, sent or received in the period 1 July 2021 to 14 October 2022 (Category 2 Documents). 3. An unredacted and complete copy of each complaint made in respect of or about John Larter in the period 1 July 2021 and 14 October 2022 (Category 3 Documents).
The Tribunal was informed by Counsel for the Respondent that there are no documents that come within the Category 2 Documents.
The Council, however, opposes the production of the documents in Categories 1 and 3.

Category 1 Documents

In summary, the Respondent's opposition to the production of the documents in this category derive from subsections 99A(2), (2A) and (3) of the Health Care Complaints Act 1993 (NSW) (the HCC Act) which read as follows: 99A Offence: improper disclosure of information (2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act. (2A) A professional council, or a person exercising functions on behalf of a professional council, may not be compelled in any legal proceedings to give evidence about, or produce documents containing, information exchanged between a professional council and the Commission under this Act or the Health Practitioner Regulation National Law (NSW). (3) Subsections (2) and (2A) do not apply to the following proceedings - (a) proceedings under the Royal Commissions Act 1923, (b) proceedings before the Independent Commission Against Corruption, (c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983, (d) an inquiry under the Ombudsman Act 1974, (e) in relation to subsection (2A) - proceedings under the Health Practitioner Regulation National Law (NSW), but only if - (i) the professional council is a party to the proceedings, and (ii) the information is necessary for the just and equitable resolution of the proceedings.
Subsections (2A) and (3) were inserted by the Health Legislation (Miscellaneous Amendments) Act 2020 (NSW) of which the Second Reading Speech of the then Minister for Health noted: The bill also amends section 99A of the Health Care Complaints Act 1993 to extend the existing privilege that applies to information held by the HCCC to information that is held by the health professional councils, where that information has been shared between the HCCC and the councils. The HCCC and the councils routinely share information and complaints. However, there is a lack of clarity about whether section 99A extends to information held by the council that has been given to it by the HCCC.
The Appellant places emphasis on the last sentence of that extract.
The Appellant further submits that: Subsection (2A) is a specific provision which specifically deals with the position of the Respondent. There are no words at the beginning of subsection (2A) such as "without limiting the generality of subsection (2)". In the absence of any such indication, subsection (2A) represents an exhaustive statement of the circumstances in which the Respondent is immune from production of documents. Subsection (3)(e) makes it clear that subsection (2A), being the only basis for the Respondent to resist production, does not operate at large to protect the Respondent or excuse it from production in these proceedings.
In addition, the Appellant submits that: Further, it may be observed by the Second Reading Speech (extracted above) that the legislature intended by s.99A(2A) to extend the privilege contained in s.99A(2) to documents provided by the Commission to a professional Council. Subsection (2A) is not intended to convey privilege upon documents which a professional Council provides to the Commission. The privilege only operates one-way. This is because the intention of the legislature was to ensure that the privilege conferred by s.99A(2) upon information held by the Commission still applied even if the Commission passed the information onto a professional council. It is therefore incorrect for the Respondent to assert that the "immunity" applies to any information that it has provided to the Commission.
In our view, subsection (2A) should not be as narrowly interpreted as contended for by the Appellant. The language of that section clearly refers to information "exchanged between" a professional council and the Commission.
Although the Second Reading Speech referred to s 99A extending to information held by the Council that had been given to it by the HCCC it would be erroneous, in our view, to read down subsection (2A) to limit its operation to a "one-way" provision of information as argued for by the Appellant.
Complaints to a professional council about health professionals, and complaints about health professionals to the HCCC are dealt with in accordance with the provisions of the HCC Act and the National Law and provide for a form of co-regulation by the HCCC and the professional council.
Division 2 of Part 2 of the HCC Act (ss 11 to 15) is concerned with liaising between registration authorities and councils. A note to the Division says: Division 2 enables the professional councils and the Commission to act in collaboration with each other. The Division will allow complete information sharing between the two arms in the disciplinary system, with a decision to investigate a complaint being made only after there has been consultation between the Commission and the relevant professional council. Where a disagreement occurs as to the appropriate action, both bodies will retain the ability to refer the matter for investigation, thus creating an internal checking method for all decisions which may result in disciplinary action. This two-pronged system will also apply to decisions to refer complaints for conciliation and will involve the Registrar in the consulting process.
As part of extrinsic material, the note can be relied upon in the construction of those provisions as allowed by ss 34, 35(2) and (5) of the Interpretation Act 1987 (NSW).
Counsel for the Respondent drew attention to the only authority which has been identified in respect of those sections, namely Khoury v Kirwan (No. 3) [2021] VSC 304.
In that case her Honour Associate Judge Ierodiaconou, in reviewing the various legislative provisions, held as follows: [14] As part of the co-regulatory scheme, information is exchanged between the regulators. For instance, s 10(2) of the HCC Act requires the Commission to notify the Medical Council of complaints made to it and a consultation must then occur between the Commission and relevant council. As part of that consultation, the Commission is required to provide documents to the Council. [15] Subsection 99A(2) provides that a person cannot be compelled in any legal proceedings to produce documents containing any information obtained in exercising a function under the HCC Act. The Commission objects to the production of documents that contain information obtained in exercising a function under the HCC Act. [16] It would undermine the statutory scheme if the operation of sub-s 99A(2) could be abrogated by issuing a subpoena to a separate agency, here the Medical Council, with whom the Commission has a statutory obligation to share material. [17] Subsection 99A(2A) of the HCC Act provides that a professional council or a person exercising functions on its behalf, may not be compelled in any legal proceedings to produce documents containing information exchanged between a professional council and the Commission under the HCC Act or National Law. A professional council cannot be compelled to produce documents that are part of the information exchange with the Commission. … [33] Subsections 99A(2) and 99(2A) each bestow an immunity against compellability upon the persons to whom they are directed. Those persons 'may not be compelled in any legal proceedings to give evidence about, or produce documents' containing the information described in those subsections. The characterisation of sub ss 99A(2) and 99A(2A) as immunities against compellability is consistent with analogous provisions in other statutes. In particular, it is analogous with s 468 of the Legal Profession Uniform Law 2014 (NSW) and its predecessor section. Those sections are discussed further below. [34] Consequently, it is incorrect to characterise sub-ss 99A(2) and 99A(2A) as bars on the validity of a subpoena. They are immunities which certain persons may invoke, or not. They do not impact on the Court's process of issuing a subpoena. … [47] The Commission cannot rely on sub-s 99A(2A). It is an immunity directed to '[a] professional council, or a person exercising functions on behalf of a professional council'. It is not directed to the Commission. I am reinforced in this textual interpretation of sub-s 99A(2A) by its context. [48] Firstly, the subsection immediately prior to sub-s 99A(2A) is sub-s 99A(2). It is directed to a person exercising functions under the HCC Act. The Commission exercises functions under the Act and accordingly, can rely upon sub-s 99A(2). [49] Secondly, the subsection immediately after sub-s 99A(2A) is sub-s 99A(3). It contains a number of exceptions in respect of sub-ss 99A(2) and (2A). It also contains an exception that applies to sub-s 99A(2), being sub-s 99A(3)(e). That section refers to an exception for certain proceedings and then states 'but only if…the professional council is a party to the proceedings…'. This supports the reading of sub-s 99A(2A) as being directed to a professional council (or a person exercising functions under it), not the Commission. [50] I am reinforced in the interpretation above by the Second Reading Speech for the amendment Act. In the Second Reading Speech for the Health Legislation (Miscellaneous Amendments) Bill 2020 which inserted sub-s 99A(2A) in s 99A, it was stated: The bill also amends section 99A of the Health Care Complaints Act 1993 to extend the existing privilege that applies to information held by the HCCC to information that is held by the health professional councils, where that information has been shared between the HCCC and the councils. The HCCC and the councils routinely share information and complaints. However, there is a lack of clarity about whether section 99A extends to information held by the council that has been given to it by the HCCC… [51] As a matter of completeness, I will address the Commission's concern that persons could subvert the operation of s 99A by subpoenaing documents from a professional council. This concern cannot override the text of sub-s 99(2A). It provides a professional council, or a person exercising functions on their behalf, with an immunity against compellability. It is their immunity to invoke, or not.
We respectfully adopt her Honour's analysis.
As will be seen from the judgment "an exchange" of information is recognised. In addition, the immunity from production of documents is that of a council and the use of a subpoena should not be used to undermine that immunity.
In our view, minutes of a meeting between the Council and the HCCC as part of the consultation process required by Division 2 of the HCC Act would inevitably contain information "exchanged between" those two bodies and, accordingly, the Council can rely on the immunity conferred on it by s 99A subject to subsection (3)(e) discussed below.
In considering whether it is necessary for the just and equitable resolution of these appeals (as set out in subsection 3(e)) we note that: 1. The National Law makes plain that the Council is independent of the Minister. Section 41DA of the National Law provides that the Council is not subject to the control or direction of the Minister in its assessment or management of complaints. It is the Council which has the power to suspend and place conditions on a practitioner or student's registration; 2. The Commission is not a party to these proceedings and the Commission's decision to revise its assessment of the complaint under s 20A of the HCC Act, and to refer the complaint to AHPRA for further management, is not the decision the subject of these proceedings; 3. There is no decision of the Minister, or the Minister's Office, concerning the Appellant under the National Law. The decisions being appealed are that of the Council. The Minister is not a party to these proceedings; 4. To the extent that the Appellant relies on the "highly political" case argument, we repeat our views in respect of the AHPRA Summons and reject the argument.
The Appellant argues that he will allege that the lifting of the suspension by the Council in June 2022 and imposition of conditions on his registration at the same time "demonstrate that the original decision to suspend his registration (in September 2021) was unreasonable in all the circumstances" and therefore the information is necessary for the just and equitable resolution of the proceedings.
It is said that the Appellant is entitled to seek the bases for the Respondent's decisions including how the Respondent arrived at those decisions.
We do not accept the assertion that the imposition of conditions on the Appellant's registration following the ending of the suspension demonstrates that the original decision to suspend his registration was unreasonable in all the circumstances - circumstances which were different in June 2022 as opposed to those that applied to the original suspension decision in September 2021.
Information exchanged between the Commission and the Council minuted at a meeting on or around 17 May 2022 is in our view not relevant to the questions raised in the grounds of the appeals and are therefore not necessary for the just and equitable resolution of the matters the subject of the Appeals.
Accordingly, we are satisfied that subsection 99A(2A) immunity is available to the Council.
The Council will therefore not be required to produce the documents in Category 1.

Category 3 Documents

The arguments raised by the Appellant in respect of the Category 3 Documents are similar to those in the AHPRA Summons which we deal with above and we reject the Appellant's arguments for the same reasons there set out.
In our view, the relationship between the Appellant and the complainants is not relevant to the determination of the issues, if such relationship in fact existed, in circumstances where the substance of the conduct complained of was apparent from all the material published by the Appellant on the various social media platforms the subject of those complaints or in the media quoting him.
The context of the complaints made against the Appellant concerns his use of social and mainstream media to spread his views. The Appellant's broadcasts are well documented, and it cannot be said that he is prevented from understanding the nature of the complaints made against him. We do not accept that the redacted material was relevant to the proceedings before the Council or to the resolution of these proceedings to maintain the protective nature of the jurisdiction.
The personal information or relationship between the Appellant and the complainants is in our view not relevant to the judgments required under s 150 as to the risks posed by the Appellant's conduct as revealed by the materials referred to.
Further, although the matter is not entirely clear, it does not appear that the Council received and has in its possession the un-redacted documents sought. If that is wrong, the documents would, in our view, also come within the scope of s 99A(2A) and are not necessary for the just and equitable resolution of the appeals.
We decided that the Council is entitled to the immunity under s 99A(2) and (2A) and we would not enforce the production of these documents the subject of the Summons.

Orders 1. There be no extension of time for the service or enforcement of the summons for the production of documents issued to the Australian Health Practitioner Regulation Authority on 20 October 2022. 2. In respect of the summons for the production of documents issued by the Tribunal to the Respondent dated 20 October 2022 the Respondent is entitled to the immunity under s 99A(2A) of the Health Care Complaints Act 1993 (NSW) and the documents are not to be produced.

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

Amendments 08 February 2023 - Coversheet - first names of applicant, removed. 17 July 2023 - Coversheet - Amend case name to "Larter v Paramedicine Council of NSW (No 2)"; amend date of orders and date of decision to "08 February 2023"; amend titles for "M Smith" and "W Hughes" to "Senior Member"; amend citation for Interpretation Act 1987 (NSW); amend citation for CPJ v The University of New Castle [2017] NSWCATAD 350. Paragraph [17] - Amend citation for CPJ v The University of New Castle [2017] NSWCATAD 350. 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: 17 July 2023

Health Legislation (Miscellaneous Amendments) Act 2020(NSW)

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