Psychology Board of Australia v Barron (Review and Regulation) [2025] VCAT 481

1. By 30 June 2025 the Board shall, subject to any legitimate claim of privilege or public interest immunity, provide to the respondent's solicitors its interview notes and records and correspondence and all draft statements with each of the respondent's four clients or former clients identified by their initials in the respondent's application for directions dated 1 April 2025 as subsequently amended.
2. For the avoidance of doubt, the Board is not directed to provide the documents identified in its solicitors' letter to the respondent's solicitors dated 29 August 2024 as notes held by Ahpra's Notifier Support Service.
3. The parties have liberty to apply.

1. The Psychology Board of Australia (the Board) has referred to VCAT allegations about the respondent registered psychologist, Dr Stephen Barron, under section 193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law). The referral, dated 13 June 2023, was accompanied by a Notice of Allegations.[1]
2. The Australian Health Practitioners Regulation Agency (Ahpra) received relevant notifications about Dr Barron in 2019, 2020 and 2021.
3. VCAT gave directions in mid-2023 for the parties to exchange documents in accordance with a timetable they had proposed and set a date in November 2023 by which they could file a joint Tribunal Book and request orders listing the matter for hearing. To date, the parties have not filed the Tribunal Book and requested the orders.
4. The Board and Dr Barron are in dispute about whether the Board has to provide certain documents to him.
5. The allegations are serious and the potential consequences for Dr Barron in these disciplinary proceedings are serious. One of the main questions therefore is whether the Board has the same duty of disclosure that a prosecutor has to an accused in criminal proceedings. For reasons that follow, I conclude that the Board does not have the same duty. But, in the particular circumstances of the case, I make an order for production of some, but not all, of the documents Dr Barron seeks.

1. Dr Barron seeks an order pursuant to section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) that (by a date specified in his application) the Board 'provide discovery of or alternatively produce the following categories of documents: ... Its interview notes and records and correspondence and all draft statements with each of [four of Dr Barron's clients or former clients (identified by their initials)]'.[2]
2. In its original form, Dr Barron's application did not contain the words 'or alternatively produce'. The amendment was evidently made to avoid problems associated with discovery, especially the principle that discovery is not ordered to provide documents for cross-examination on credit only or as part of a 'fishing' expedition.[3] All that needs to be said on the subject is that there is no discovery process as such at VCAT although VCAT may make orders for discovery on terms appropriate for the case before it.[4] In the circumstances, it is appropriate to deal with the application simply as an application to produce documents rather than an application for discovery.
3. Dr Barron's application was supported by an affidavit by his solicitor, Mark Attard, sworn on 1 April 2025.

The allegations, the evidence and the dispute about documents

1. It is important to bear in mind the nature of the allegations and the evidence in support of the allegations.
2. In summary, the Board has made allegations about Dr Barron's conduct in relation to four clients or former clients (the clients). The clients' initials appear in the Notice of Allegations. In these reasons I will refer to the clients instead as Ms A, Mx B, Ms C and Ms D.[5] The allegations relevantly include that Dr Barron failed to maintain professional boundaries in that he made inappropriate and/or sexual comments to Ms A and Mx B;[6] and that he failed to behave in a professional and respectful manner during consultations with each of Ms A, Mx B, Ms C and Ms D. In the case of Ms C, the conduct is alleged to have taken place in 2011. In the other cases, the conduct is alleged to have taken place in 2019.
3. Among other things, the particulars to the allegations set out the alleged inappropriate and/or sexual comments. That includes questions Dr Barron asked; comments he made; and information he gave (about himself and his family). The particulars further set out the alleged failure to behave in a professional and respectful manner. That includes making comments that are particularised.
4. The clients have made witness statements: Ms A on 7 May 2020; Mx B on 26 July 2020; Ms C on 8 March 2021; and Ms D on 14 January 2022.
5. The witness statements made by Ms A and Mx B expressly state that they participated in a telephone interview with an Ahpra investigator on an earlier date: Ms A on 24 April 2020; and Mx B on 10 July 2020. I am asked to infer that Ms C and Ms D also participated in one or more interviews before their statements were finalised.
6. Mr Attard's affidavit sets out the history of the documents dispute. The dispute appears to have begun in April 2024 when Dr Barron's solicitors wrote to the Board's solicitors and asked the Board to provide its interview notes and records and correspondence with each of Ms A, Mx B, Ms C and Ms D.
7. In summary, Dr Barron's solicitors told the Board's solicitors that Dr Barron believed there may be information in the documents that is relevant to the original complaints and therefore relevant to the allegations. They pointed out the different interview and statement dates (in the case of Ms A and Mx B) but generally asserted that there would be notes or other records of interview that gave rise to the witness statements. In response, the Board's solicitors said that they did not understand Dr Barron's view as to the possible relevance of the material in circumstances where the witnesses were willing to give evidence at a hearing and had prepared and signed witness statements.
8. There was further correspondence during 2024. In particular, Dr Barron's solicitors said that the basis for their request was that all matters were in issue, including the clients' credit. They asserted that the Board has a duty to produce all documents that may be of possible relevance to 'the defence' and that the Board's duty is not limited to the production of only those documents that it sought to use to advance its (own) case. The Board's solicitors essentially maintained the position stated earlier and pointed out that Dr Barron would have the opportunity to call the witnesses for cross-examination to test their evidence.[7]
9. Mr Attard's affidavit concluded with the following statements:

The Board's solicitors do not deny the existence of the notes and records requested.

We have reasonable grounds to believe that the witness statements on which the Board relies[:]

(a) Were prepared from the notes sought by way of discovery.

(b) The witness statements were not prepared by the witnesses themselves but by [Ahpra] officers relying on the notes sought by way of discovery.

(c) The Tribunal in its deliberation on this matter would [be] assisted by production of the notes and comparison with the statements.

(d) The respondent in [his] defence would be assisted by a similar comparison.

The determination of issues in this proceeding will turn on the credibility and veracity of each complainant's testimony against the Respondent. The interview notes, records and correspondence with the complainants is relevant to the credibility and veracity of the complainant's testimony as it evidences the complainants initial recollections of their experiences with the Respondent.[8]

1. The correspondence is exhibited to Mr Attard's affidavit. The Board's solicitors' correspondence includes a reference to notes held by Ahpra's Notifier Support Service (NSS) that I will specifically address later.

1. At a Directions Hearing held on 22 April 2025, I heard oral submissions by Mr Moloney on behalf of Dr Barron and Mr Stoller on behalf of the Board.[9]
2. Mr Moloney told me that there is a 'significant controversy' between what the clients say and what Dr Barron says. He said that the documents are required ultimately as a matter of fairness, to understand not only what the clients said in their witness statements but also what they said to Ahpra in the course of the investigation.
3. Mr Moloney's submissions were substantially founded on the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) and related international conventions, especially the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party.
4. Mr Moloney cited numerous authorities. For convenience, I categorise them in the following way. First, there were appeals and judicial reviews concerning criminal proceedings: Cheng Kui v Quinn & Ors (1984) 67 ALR 231 (Cheng Kui); R v Kingston (1986) 2 Qd R 114 (Kingston); R v Higgins (1994) 71 A Crim R 429 BC 9406132 (Higgins); R v. Farquharson (2009) 26 VR 40 (Farquharson); and Anile v. The Queen [2018] VSCA 235 (Anile). Secondly, there were judgments of the Supreme Court of Victoria in which Bell J, exercising judicial review and other powers, considered the Charter and/or the ICCPR and related international conventions and jurisprudence in the context of criminal proceedings: Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300 (Ragg); Matsoukatidou v Yarra Ranges Council [2017] VSC 61; (2017) 51 VR 624 (Matsoukatidou); and BA v. Attorney-General [2017] VSC 259 (BA). Finally, there the was the Federal Court judgment in ASIC v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32 (Mining Projects Group) that involved a civil penalty proceeding.[10]
5. Mr Moloney's submissions were detailed, but his main submission was to the effect that Board has the same duty as a prosecutor in criminal proceedings and that I should therefore make the order sought.
6. Mr Stoller cited authorities in relation to discovery that I have noted earlier. He said in essence that the Board has already provided a substantial amount of material to Dr Barron. He submitted that the Board is under no duty to provide further documents. He went on to submit that the proceeding is not a criminal proceeding and that the Board is not under the same duty as a prosecutor in a criminal proceeding. In support of this proposition, he cited especially Adler v ASIC [2003] NSWCA 131 (Adler). (Adler was followed in Mining Project Group and in Medical Board of Australia v Shah (a pseudonym) [2023] SACAT 105 (Shah), which Mr Stoller also cited).
7. Whereas Mr Moloney submitted that Adler is not good law for the State of Victoria, Mr Stoller submitted that there is nothing to indicate that Adler is not good law in Victoria, notwithstanding the Charter.

Key provisions in the National Law, the VCAT Act and the Charter, and VCAT's Fair Hearing obligation

1. The guiding principles of the national registration and accreditation scheme established under the National Law include that 'the scheme is to operate in a transparent, accountable, efficient, effective and fair way'.[11]
2. The key sections in the VCAT Act are the following:

80 Directions

(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding ...

97 Tribunal must act fairly

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

(1) The Tribunal -

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit ...

(1) The Tribunal must allow a party a reasonable opportunity -

(b) to examine, cross-examine or re-examine witnesses ...

1. The key sections in the Charter are the following:

(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3 ...

Part 2 includes section 24. Section 24 relevantly provides -

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing ...

1. I also mention VCAT's Practice Note - PNVCAT3 - Fair hearing obligation. As stated in the Practice Note, the purpose of the practice note is to provide some procedural guidance as to how VCAT's fair hearing obligation may be discharged. Paragraph 22(e), under the heading 'What are the obligations of parties and representatives?', states:

Parties and their representatives must: ... Cooperate with other parties and the Tribunal to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute[.]

1. The cases in the first category cited by Mr Moloney illustrate the prosecutor's duty of disclosure in criminal proceedings and the potential value to the defence for even 'unused material' to be disclosed.
2. It is convenient to turn immediately to Bell J's judgments in Ragg, Matsoukatidou and BA. Ragg, Matsoukatidou and BA were decided in a variety of contexts but they were all concerned with criminal proceedings.
3. For reasons I will make clear, it is significant that Ragg, Matsoukatidou and BA did not refer to Adler or Mining Projects Group.
4. It is also significant that the application for judicial review in Ragg was made before the commencement of relevant provisions of the Charter, such that the Charter did not affect the proceeding.[12] (Matsoukatidou and BA, on the other hand, were decided after the Charter came into operation).
5. Ragg involved the review of a Magistrate's decision refusing to strike out paragraphs of summonses (to produce documents) issued by an accused against the police officer who had charged him. The documents sought by the accused included the officer's interviews with or notes of conversations with prosecution witnesses, or statements including draft statements by prosecution witnesses. Those documents had actually been produced, but there were others that had not been.[13]
6. While the Charter did not affect the proceeding, Bell J said he considered that international human rights, including the right to a fair trial specified in the ICCPR, were relevant when deciding whether the Magistrate committed an error of law. This led his Honour to discuss the 'Equality of arms' principle, a feature of the concept a fair trial, which exists to afford both parties a reasonable opportunity to present their case under conditions of equality.[14] His Honour noted that the equality of arms principle applies to both civil and criminal trials.[15] But his focus was on the duty that a prosecutor in criminal proceedings has to disclose, especially where there is 'material evidence [that] may cast a significant light on the credibility or reliability of material prosecution witnesses'.[16] Bell J went on to say that a fair hearing is a concept of universal application. He said that while its precise content may vary, a fair hearing was as much due, for example, to 'the landlord and tenant in a civil eviction proceeding in an administrative tribunal' as to the prosecution and defence in a criminal case. He added, however, that, as would be expected having regard to the different nature of the issues involved, the principle applies with 'greater latitude' in a civil case when compared to a criminal case.[17]
7. Bell J went on to consider the duty of a prosecutor at common law to act fairly towards an accused, which includes a duty to disclose material documents to the defence. His Honour referred to the scope of the duty and said it extends to disclosing material that may undermine the prosecution case or which tends to assist the defence case. It extends to disclosing material affecting the credit of prosecution witnesses.[18] Here his Honour referred to R v Higgins (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Brooking, Byrne and Eames JJ, 2 March 1994) (Higgins) where their Honours said that '[t]he application of this duty of disclosure to a given case will depend upon the facts of that case and the significance of the material in question in the light of the issues in that particular case'.[19]
8. Citing further authorities, Bell J noted that the test is essentially one of 'possible relevance', but he said that in this regard the prosecutor must give the issues raised in the criminal trial a broad and not a restrictive interpretation.[20] He emphasised that the prosecutor's duty of disclosure extends to 'unused material', being material that tends to weaken the prosecution case or strengthen the defence case but which the prosecution does not intend to use against the accused.
9. Bell J said he saw 'no dissonance' between the prosecutor's duty at common law and the equality of arms principle recognised in the international human rights jurisprudence.[21]
10. Relevant to summonses in criminal proceedings, Bell J said that they could not be used by the defence to go on a fishing expedition. The defence must have a proper basis for seeking the production of documents and cannot issue a summons for 'the abstract purpose of seeing whether or not [the documents] exist or may be useful'.[22] There must be a 'legitimate forensic purpose' which the accused must identify 'expressly and with precision'.[23] His Honour considered various tests and said:

A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.[24]

1. Bell J had more to say about the equality of arms principle in Matsoukatidou (especially concerning self-represented litigants) and BA (concerning access to documents in the possession of the American FBI). His Honour noted the general application of the Charter to courts and tribunals.[25] He discussed the right to a fair hearing under section 24 of the Charter which he said, was derived from the relevant part of the ICCPR that he discussed in Ragg.[26] In BA, restating what he said in Matsoukatidou, his Honour said that equality of arms is a 'general principle for operationalizing the human right to a fair hearing' and that it means 'the same procedural rights are to be provided to all parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant'.[27]
2. In BA, Bell J referred to the ICCPR, the Charter, the common law duty of disclosure, together with relevant provisions of the Criminal Procedure Act 2009 (Vic) (Criminal Procedure Act) which, he said, 'gives elaborate effect to the principles of equality of arms and prosecutorial disclosure in relation to committals'.[28] The documents in question concerned information held by the FBI, obtained from a US resident, which lead to the preparation of that person's statement by the Australian Federal Police. The statement was the main evidence against the accused in a committal hearing. The witness was to available for cross-examination at the committal. The ultimate issue was whether the Court should issue a certificate under relevant Commonwealth legislation that it would be in the interests of justice for the Attorney-General to make a request to the foreign country concerned for the documents. Bell J noted that without access to the documents it was not possible for the plaintiff to establish that the documents were evidentiary and admissible. They appeared more likely to be documents that would be used in cross-examination (because they went to the credibility and reliability of the witness' evidence) and generally in advancing the defence and damaging the prosecution case. Nevertheless, the plaintiff had shown a legitimate forensic interest in seeking to obtain access to the documents for these purposes. Whether the documents became evidentiary and admissible would depend on the course of the proceeding, including cross-examination of the witness, but this was 'reasonably possible'.[29] His Honour added that the documents had 'a real and not speculative relevance to the issues in the proceeding'.[30]
3. It is important to point out that in the course of his analysis in BA, Bell J said that providing the documents sought by the defence would be consistent not only with the common law duty of prosecutors to disclose material documents and information to the defence (and the specific disclosure obligations under the Criminal Procedure Act) but also with Victorian human rights law as specified in the Charter (derived from the ICCPR). [31]
4. It emerges from these cases that the Charter (which must be applied in Victoria) does not impose a higher duty on prosecutors than would arise under the common law or the ICCPR (where an Australian Court saw itself as permitted to have regard to the ICCPR and related international jurisprudence).[32] Put another way, one would expect that if an interstate court or a federal court, not bound to apply the Charter, were applying only the common law (or perhaps also the ICCPR), the result would be the same as if that court were bound to apply the Charter.
5. Pausing here, I emphasise that, notwithstanding the references made in Ragg, Matsoukatidou and BA to civil proceedings, those cases were concerned with criminal proceedings. I also emphasise that Bell J did not refer in his judgments to Alder or Mining Projects Group. That is not surprising. Neither of those cases involved criminal proceedings.
6. It is also to be observed that neither the Court of Appeal of New South Wales in Adler nor the Federal Court of Australia in Mining Projects Group referred to the ICCPR or related jurisprudence. (The same can be said for SACAT in Shah, which I will come to soon).
7. Having made those observations, I turn to consider the judgments in Adler and Mining Projects Group.
8. Adler involved civil penalty proceedings brought by ASIC (Australian Securities & Investments Commission) against various persons. The regulator accepted that it had to act fairly and said that it had done so. One question was whether ASIC could be 'held to the requirements of criminal cases' in certain respects. Giles JA, with whom Mason P and Beazley JA agreed, said that he did not think ASIC could be held to the requirements of criminal cases if ASIC were not in law bound by them.[33] His Honour referred to concepts developed in particular circumstances of criminal proceedings and said that by declaring that the proceedings initiated by ASIC were to be conducted as civil proceedings, the legislature had 'plainly declined to pick up the concepts'.[34] He added that 'once it is recognised not only that the proceedings are not criminal proceedings, but also that they are by prescription civil proceedings, the basis for some analogous rules is hard to see'.[35]
9. Mining Projects Group also involved civil penalty proceedings. Finkelstein J referred to the duty of disclosure that a prosecutor owes to an accused, requiring the disclosure of all witness statements and notes of interviews with witnesses, among other material. His Honour acknowledged his attraction to the view that a regulator bringing a civil proceeding to recover a penalty is under a similar obligation. But he applied Adler, saying that in that case Giles JA 'rejected a submission that ASIC was required to act with the same degree of fairness and detachment as a prosecutor'.[36]
10. I am mindful that section 24 of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to a fair hearing. As Bell J said in Ragg (albeit a case decided before the Charter came fully into effect), however, the fair hearing principle applies with 'greater latitude' in a civil case when compared to a criminal case. Although his Honour was apparently not speaking about civil penalty proceedings or disciplinary proceedings when he made that remark, it indicates that Mr Moloney's submission - to the effect that there is symmetry between a prosecutor's duty and the Board's duty - is not sustainable. In any event, I accept Mr Stoller's submission that there is nothing to indicate that Adler is not good law in Victoria, notwithstanding the Charter. To be clear, I consider that Adler is good law in Victoria.
11. As an aside, I would say that while I am conscious that the laws and procedures for responsible tribunals under the National Law are not identical throughout Australia, it would be surprising if there should be any difference when it comes to National Boards' disclosure obligations in Victoria. It would be undesirable for there to be any difference.
12. My conclusion that the Board does not have the same duty of disclosure as a prosecutor in criminal proceedings does not dispose of Dr Barron's application.
13. I have concluded that I should exercise my discretion under section 80 of the VCAT Act. In the individual circumstances of the case, it is necessary for the fair hearing and determination of the proceeding to make an order for production of the documents that Dr Barron seeks, with the exception of the NSS documents.
14. Fairness requires that Dr Barron be given the documents. The most significant considerations are these: the precise nature of the allegations and the evidence; the gap in time between the alleged conduct and the notifications; and (at least in Ms A and Mx B's cases), what is known to be the gap in time between the clients' interviews with Ahpra and the making of their witness statements. (In my view, it is reasonable to infer that Ms C and Ms D were also interviewed sometime before their witness statements were prepared). There is a reasonable possibility of a material variation between precisely what the clients told Ahpra in interviews or in correspondence and precisely what appears in the formal witness statements prepared for them, whoever it was who actually prepared the witness statements. Obviously, whether or not a witness has given a consistent account can affect their credibility and reliability.
15. Dr Barron has requested interview notes, records, correspondence and draft statements. I was informed at the hearing that there are no draft statements, but by implication at least, the Board's representatives have acknowledged the existence of other documents sought.
16. The Board's position as model litigant under its own policy is acknowledged, such that the Board has the duty at least to act honestly and fairly.[37] The Board contends that it has done so. The Board's representatives have nevertheless maintained the position that the Board is not required to give Dr Barron the documents.
17. Ordinarily, there ought to be no issue about a National Board or its advisers assessing the relevance of documents it holds and refraining from disclosing documents to a respondent health practitioner that are not relevant. Dr Barron's case is an instance where the relevance of the documents is reasonably in issue such that it is appropriate for the Board to provide the documents and allow him and his advisers to make their own assessment. The Board or its lawyers may conscientiously decide (and may be accepted as having conscientiously decided in the present case) that documents are not relevant and would be of no value to the health practitioner. But the health practitioner will of course have his or her own perspective.
18. In this context, Mr Moloney made the point that any presumption that a party who has discovery obligations has complied with those obligations would not operate in the present circumstances. The case is ultimately not about discovery, and there is no affidavit that might form the basis of a presumption.[38]
19. Echoing judicial statements referred to in Shah, I would say that in a case like Dr Barron's, where the credibility and reliability of a witness may be of such importance that it is decisive of the facts-in-issue (because the witness is a participant in the very facts-in-issue), the health practitioner and the health practitioner's lawyers should, in fairness, have access to the documents so that they can make their own assessment about the relevance and possible value of the documents.[39] Once they have seen the documents, they may conclude that the documents are indeed not relevant; or that the documents add nothing to what has already been provided; or that the documents would actually have no value in the cross-examination of witnesses. Nonetheless, the health practitioner and the health practitioner's lawyers should have the opportunity to make that assessment for themselves. As Mr Moloney put it, the Board is not the arbiter of relevance in this situation.
20. The NSS documents are in a different category and will not form part of the order for disclosure.
21. In a letter to Dr Barron's solicitors dated 29 August 2024, the Board's solicitors said this in relation to the NSS documents:

The NSS is a service which provides emotional support to witnesses/notifiers during their involvement in investigations and/or disciplinary proceedings. The relevant NSS employee at Ahpra has made notes of her interactions with the witnesses in relation to this matter, including by phone and email. We have reviewed those notes and communications and they do not record any discussion about the substance of any witness's evidence or the substance of the allegations against your client. Where relevant information is provided by a witness, that information is disclosed, usually in the form of a statement or affidavit, as has been the case in this matter. As such those notes are not relevant to the issues which the Tribunal has to decide and, given the nature of the NSS and the context in which those notes were made, the Board declines to provide them. The Board does not consider that disclosure of these records is necessary to afford your client procedural fairness or to comply with the Board's disclosure obligations in this matter.[40]

1. Clearly, the NSS documents have been reviewed by the Board's solicitors. Whether those documents are now in the possession, custody or control of the Board (as opposed to Ahpra) appears to be a matter in dispute. Whatever the position, and whether Dr Barron might have to amend his application further or request that a summons be issued, Mr Moloney made clear that he seeks the NSS documents on essentially the same basis as the other documents.
2. In my view, as a matter of discretion, there should be no order for the Board to produce the NSS documents. The Board's solicitors letter makes it sufficiently clear that the documents are not relevant to the investigation and the allegations and that they would not have value for Dr Barron in defending himself against the allegations.
3. There is a balancing exercise involved.[41] In my view, the request for the NSS documents amounts to impermissible fishing. But further, I accept Mr Stoller's submission to the effect that it would be contrary to the public interest to require disclosure of the NSS records to Dr Barron. There would obviously be harm or at least potential harm done to notifiers or witnesses and the NSS itself if notifiers or witnesses believed that the details of their discussions with social workers, focussed on providing emotional support to them, could be released to the health practitioner or the health practitioner's lawyers and potentially used to attack their credibility.
4. During the hearing there was discussion about the possibility of the NSS documents being provided to VCAT for the Tribunal to make an assessment as to relevance. In my view, given what I have already observed about the documents, and given the requirement for VCAT to conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the National Law and a proper consideration of the matters before it permit, that would not be the appropriate course to take.
5. I make clear, incidentally, that I distinguish the NSS documents from the kind of documents that SACAT was considering in Shah when it permitted a summons to be issued, those documents being counselling records relating to the patient's interaction with the respondent medical practitioner.[42]
6. I record now that in Shah, the Medical Board of Australia (Medical Board) referred allegations about a medical practitioner to SACAT under the National Law. SACAT considered an application by the doctor for the issue of various summonses. SACAT followed Alder and Mining Projects Group and concluded that the Medical Board is not subject to the same duty of disclosure as a prosecutor in criminal proceedings.[43] Nevertheless, the application for summonses succeeded to some extent.
7. Mr Moloney correctly noted that Shah concerned SACAT's power to issue summonses and that the present case is not about a summons. The power that VCAT has under section 80 of the VCAT Act to order production of documents is separate and distinct from the power VCAT has under section 104 in relation to summonses.[44]
8. In relation to summonses, a party seeking to access documents must satisfy the court or tribunal that it is 'on the cards' or that there is a 'reasonable possibility' that the documents will materially assist its case.[45] In Ragg, another case about summonses, Bell J considered a range of 'statements of principle' but said that he saw no significant difference between them. His Honour's preferred formulation was that there be a reasonable possibility that the documents sought would materially assist the defence. He commented that this was a low threshold.[46] Bell J went on to remark that the 'reasonable possibility' test does not apply in all cases in a fixed manner as if the relevant considerations always have the same value.[47] As expressed in other cases in relation to the duty owed by a prosecutor to the accused, the test is of relevance or possible relevance.[48]
9. As noted earlier, in BA (which was not a summons case), Bell J expressed the view that the documents in question had 'a real and not speculative relevance to the issues in the proceeding'.[49]
10. Goldsmith v Legal Profession Complaints Committee [2022] WASCA 167 (Goldsmith), which SACAT referred to in Shah, is worthy of special mention. In Goldsmith, the Western Australian Court of Appeal considered whether it was in the interests of justice for a solicitor (the respondent in disciplinary proceedings) to have access to particular documents.[50] The Court considered whether the materials placed before it 'were sufficient to disclose a plausible basis for contending that' a certain document 'may have been relevant to the credibility or reliability of' a key witness' evidence.[51] The Court concluded that, for the procedural purposes relevant in the case, it was in the interests of justice for the document to be disclosed.
11. The cases I have discussed provide general guidance as to fairness. There may be no significant difference between the various statements of principle. In Dr Barron's case, it is enough to indicate that he has shown a reasonable possibility that the documents will materially assist his case.

1. Mr Moloney commented that professional boards bringing disciplinary proceedings against health practitioners or their representatives were in the past sometimes referred to as 'prosecutor'. The term 'civil prosecutor' was actually used in Goldsmith to describe the regulator bringing the disciplinary proceedings.[52] This cannot mean that the Board's position is legally the same as a prosecutor in criminal proceedings. While it is true that the allegations are serious and the potential consequences for Dr Barron are serious, I have concluded that the Board does not have the same duty as a prosecutor in criminal proceedings. Nevertheless, in the particular circumstances of the case, I exercise my discretion to make an order for production of the documents that Dr Barron seeks with the exception of the NSS documents.
2. In his application, Dr Barron sought production by a date that was more than 28 days after the date of the Directions Hearing. In the circumstances, I will direct that production be made no later than 30 June 2025.[53]

[1] A referral is not a proceeding for review. It is important to bear this in mind given the provisions

of sections 56, 80(3) and 106 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) relevant to the production of documents.

1. [3] See Cahill v KiIversun Pty Ltd [2017] VSC 628 (Cahill). In Cahill, the Court referred to the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and cited North West Supermarkets Pty Ltd v The Leasing Centre (Aust) Pty Ltd [2015] VSC 212 (North West Supermarkets).
2. [4] See CGJ obo MCN v State of Victoria (Department of Education and Training) [2021] VCAT 1010 (CGJ obo MCN).

[5] The title 'Mx' reflects what appears in the Notice of Allegations.

[6] Mr Attard's affidavit refers to three allegations (including a failure to maintain an adequate treatment or management plan for two of the clients), but the Notice of Allegations includes a fourth - that Dr Barron failed to maintain professional boundaries in that he engaged in inappropriate physical contact with Ms A. (The particulars to that allegation include Dr Barron's comments at the time).

[7] The Board's solicitors told Dr Barron's solicitors, however, that following a review of Ahpra's

files, there was a further document they could provide - an email that Ms C sent an Ahpra investigator in July 2020. The Board produced a copy of the email at the hearing. This may reasonably be viewed as the Board demonstrating good faith.

[9] There were also written submissions by Mr Stoller.

[10] The term 'public protection proceeding' was used in submissions to the South Australian Civil

and Administrative Tribunal (SACAT) in Medical Board of Australia v Shah (a pseudonym) [2023] SACAT 105 (Shah)for a proceeding of a similar nature as the present proceeding. The Tribunal cited Craig v Medical Board of South Australia [2001] SASC 169 at [43], [47].

[13] See Ragg at [14], [15] and [106] ff.

[16] At [64], Bell J quoted Kirby J in Mallard v R (2005) 224 CLR at 155.

[25] See, e.g., Matsoukatidou at [30].

[29] At [72], [73]. Later, at [77], Bell J said there were 'reasonable grounds for thinking that [the documents] go to [the witness'] credibility and the reliability of [the witness'] evidence'.

[32] See, for instance, BA at [79]-[80].

[37] The Ahpra website contains the model litigant policy which applies to all 'National Law entities' including the National Boards and Ahpra.

[38] See the discussion in Shah at [51].

[39] See Shah at [27], and at [45] where SACAT quoted McHugh J in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 (Palmer) at 22.

1. [40] According to the Ahpra website, '[t]hrough a trauma-informed approach, the [NSS'] social workers provide emotional support and help explain how [the] notifications process works. They prepare [notifiers] for what to expect and help guide [them] through the experience of engaging with [Ahpra]'.

[44] Maryvell Investments PL v Sigma Constructions PL [2006] VCAT 1599 (Maryvell) at [28].

[45] Commissioner of the Australian Federal Police v Magistrates Court of Victoria & Di Pietro [2011] VSC 3 (Di Pietro), per J. Forrest J, at [28]. It may be noted, incidentally, that his Honour said that in criminal proceedings a 'more liberal' view is taken by a court in respect of the application of the test and special weight is to be given to the fact that the documents may assist the defence of the accused.

[48] See Anile at [130] and Farquharson at [213].

[50] The solicitor's application was made under Rules of Court. As summarised in the judgment, the relevant rule empowered the Court to make any order appropriate for the due and effective administration of justice. The relevant inquiry was whether the solicitor may have been denied procedural fairness by non-disclosure.

[51] At [65]. The document was a health report relating to the mental health of a key witness whose credibility and reliability would be in serious contest. The court said that it was unnecessary to see the document for it to reach its conclusion. See also Shah at [36], [37].

[53] Dr Barron's original application, dated 1 April 2025, sought orders to be made on 22 April 2025 for production of documents by 26 May 2025.