ROBERMAN -v- METROPOLITAN HEALTH SERVICE BOARD [2022] WASC 124 (12 April 2022)

(a) email from Greenhalgh Pickard to the Principal Registrar of the Supreme Court of Western Australia sent on 14 October 2021;

(b) outline of submissions in support of application filed on 21 December 2021; and

(c) outline of submissions in reply filed on 23 February 2022.

3 Brian Roberman, the plaintiff in this proceeding, opposes the application. The plaintiff relies on an outline of submissions filed on 23 February 2022 in opposition to the application.

4 The defendant did not make any submissions in relation to this application.

5 For these reasons, the applicant will not be granted access to the confidential particulars and the application is dismissed.

6 In 2000, the applicant was the Chief Executive of King Edward Memorial Hospital (KEMH). The Metropolitan Health Service Board (MHSB) was the employer of both the applicant and the plaintiff, who held the position of medical director, Obstetric Clinical Care Unit.[1]

7 The plaintiff commenced this proceeding against the MHSB by writ of summons indorsed with a statement of claim filed on 6 September 2000. Confidential particulars were also filed on 6 September 2000.

8 The MHSB successfully applied to strike out the statement of claim, for the reasons published by Master Sanderson in Roberman v Metropolitan Health Service Board [2001] WASC 74.

9 Substituted statements of claim were filed on 4 September 2001 and 27 November 2001. The latter was subject to a further strike out application. For the reasons published by Master Sanderson in Roberman v Metropolitan Health Service Board [2001] WASC 330, para 8 onwards of the substituted statement of claim was struck out.

10 An amended substituted statement of claim was filed on 28 February 2002. In 2004, the action was dismissed by consent.

11 The applicant submits that concerns he raised regarding the quality of care at KEMH ultimately led to an inquiry into KEMH and subsequently the plaintiff commenced this proceeding against the MHSB.[2]

12 The applicant submits he is one of a number of people personally named in the writ and requests a copy of the writ and confidential particulars to 'inform himself on the basis of the claim to which identifies the review'.[3] The applicant also submits access to these documents will provide valuable insight into the medical investigation contended to have been initiated by him.[4]

13 As this proceeding was commenced before 1 March 2018, this non-party application is to be determined pursuant to RSC O 67B div 7.[5]

14 RSC O 67B r 16(1)(a) to (d) set out the documents non-parties may access as of right (on payment of the prescribed fee). Those documents relevantly include any writ, and the statement of claim indorsed on the writ under O 6 r 3, to which the applicant is entitled as of right on payment of the relevant fee.

15 Confidential particulars are not a document that non-parties may access as of right. Pursuant to RSC O 67B r 16(1)(e), the leave of the court or a registrar is required.

16 RSC O 67B r 16(1)(e) does not set out the factors that the court is to take into account in exercising its discretion to grant leave. However, those factors are well established in cases considering non-party applications pursuant to RSC O 67B r 16(1)(e) and the predecessor to that provision.

17 As set out by his Honour Le Miere J in Vikas Rambal (atf The Vikas Rambal Family Trust) v Pankaj Oswal (atf The Burrup Trust) [2014] WASC 86:

[8] [T]he principle of open justice is a strong reason for allowing access to documents that have been read by the court as part of the decision-making process, including the process of determining pre-trial applications. In such cases the court should lean in favour of disclosure if a legitimate interest can be shown for obtaining the documents and there is no good reason to refuse access.

[9] [A] party who is engaged in litigation has a legitimate interest in inspecting documents which contain information relevant to the issues in the litigation in which the applicant is involved.

[10] [W]here the documents sought have been filed but not read the principle of open justice is not engaged at all and the court should only give access to such documents where there are strong grounds for thinking it necessary in the interest of justice to do so.

18 In The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] [2021] WASC 210, his Honour Le Miere J considered an application by Bianca Rinehart pursuant to RSC O 67B r 16(1)(e). His Honour stated (citations omitted):

[24] ...It is for the person seeking access to explain why they seek it and how granting them access is in the interests of justice. The court would not grant access to a person who did not have a legitimate purpose for accessing the document.

...

[32] ...It is for Bianca to show that access is necessary for the purpose of the legitimate interest pursued by Bianca. 'Necessary' in this context means convenient or useful, or calculated to produce that end.

[33] A legitimate interest in this context includes a wide range of interests. It includes a private interest but it does not extend to personal curiosity (ie, what is of interest to know; that which gratifies curiosity or merely provides information or amusement).

[34] An application for access for the purposes of collateral investigation or litigation may be in pursuit of a legitimate interest. This is illustrated by Dian AO v Davis Frankel & Mead, Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd, ex parte Merlin BV, Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [No 3], Vikas Rambal (atf The Vikas Rambal Family Trust) v Pankaj Oswal (atf The Burrup Trust) and The Chartered Institute of Arbitrators v B. It is in the interests of justice that evidence which has been deployed by a party to advance a case in court should be available for deployment in another court, tribunal or arbitral proceeding where it is relevant.

...

[36] The court will exercise the discretion in the interests of justice, having regard to all the circumstances. The court will carry out a fact specific balancing exercise. The factors which the court will take into account will include the open justice principle, the potential value of the information in advancing the purpose and legitimate interest of the applicant, and any risks of harm which its disclosure may cause to the maintenance of an effective judicial process or the legitimate interests of the owner of the information or others.

19 The diagram below which was published in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2019] WASC 262, provides a visual illustration of the factors to be taken into account.

Have the confidential particulars been read by the court as part of the decision-making process?

20 Neither the applicant nor the plaintiff address the issue of whether the confidential particulars have been read by the court in their submissions.

21 In his judgment regarding the first strike out application, Master Sanderson stated:[6]

Paragraph 7 and par 8 plead the conduct of the Review and its completion on or about 3 April 2000 when it provided a report ("the Report"). It is pleaded by par 8 that the conclusions in the Report were critical of the performance of the plaintiff and "confidential particulars" of those adverse findings have been provided. No complaint is made as to these two paragraphs.

22 It is apparent the confidential particulars were read, or taken as read, on the hearing of the first strike out application, as referred to in Master Sanderson's judgment.[7]

Does the applicant have a legitimate interest in inspecting the confidential particulars?

23 Again, neither the applicant nor the plaintiff expressly address the issue of whether the applicant has a legitimate interest in inspecting and obtaining a copy of the confidential particulars in their submissions.

24 It is for the applicant to establish that he has a legitimate interest in accessing the confidential particulars and to explain how granting him access would be in the interests of justice.[8]

25 The applicant requests a copy of the writ and confidential particulars to 'inform himself on the basis of the claim to which identifies the review'. He submits access to these documents will provide valuable insight into the medical investigation he contends was initiated by him.[9]

26 The applicant also submits access to the confidential particulars is in the public interest as it concerns the management of clinical care in the public health system.[10]

27 In his submissions, the applicant refers to two decisions published by the Office of the Information Commissioner (WA). Re U and Department of Health [2010] WAICmr 3 relates to a complaint from a decision made by the Department of Health under the Freedom of Information Act 1992 (WA) (FOI Act) to refuse access to a full copy of a psychiatrist's report. In determining the complaint and whether access to a full copy of the report should be granted, the Information Commissioner considered public interest issues relating to disclosure.

28 The applicant submits the Commissioner held that personal information about a third party relating to a review of clinical care was in the public interest to disclose. Further, it was a decision made on the basis that the public interest in the operation of public health services outweighed those favouring non-disclosure.[11]

29 The second decision referred to in the applicant's submissions is Re McGowan and Department of the Premier and Cabinet [2015] WAICmr 3. That case relates to a complaint arising from a decision made by the Department of the Premier and Cabinet to refuse the Hon Mark McGowan access to documents under the FOI Act. In that decision, the Information Commissioner again considered issues relating to the public interest.

30 The applicant submits that in Re McGowan and Department of the Premier and Cabinet, the Commissioner found documents relating to an inquiry were not exempt under the relevant clauses of the FOI Act because it was in the public interest to show investigations were conducted fairly, robustly and with integrity. Further, the Commissioner considered that the public interest factors against disclosure were lessened because the documents related to current senior and former public officers.[12]

31 The plaintiff opposes the application and submits the applicant offers no explanation as to why it has taken him 21 years to decide to seek access to the confidential particulars.[13]

32 In response to the applicant's submissions, the plaintiff submits that even if the confidential particulars do say something about the management of clinical care, that is over 21 years ago. The plaintiff queries how that information could be considered relevant now and submits it is not in the public interest for access to be granted to the confidential particulars when the applicant does not say why he wants them now.[14]

33 The applicant submits the time that has passed is not a reason for non-disclosure and if anything, supports disclosure, contending that disclosure would have no consequences for the plaintiff or anyone else.[15]

34 I am not satisfied that the applicant has a legitimate purpose for accessing the confidential particulars. It is for the applicant to establish that access is necessary for the purpose of the legitimate interest pursued by him.[16] While a legitimate interest includes a wide range of interests, it does not extend to personal curiosity, including to gratify curiosity or merely provide information.[17]

35 The applicant does not seek access for the purpose of any current collateral investigation or litigation. He appears to wish to inform himself of the basis of the proceeding and seek information relating to the inquiry into KEMH that the applicant submits was undertaken as a result of concerns he raised. I consider those reasons to be personal curiosity, rather than legitimate interest.

36 The applicant's submissions regarding public interest issues relating to disclosure do not assist in establishing a legitimate interest. I am not satisfied that the applicant has a legitimate interest in accessing the confidential particulars, nor that granting access to the confidential particulars would advance the open justice principle.

37 While I have found there is not a legitimate interest and therefore would not give leave to access the confidential particulars, I will also consider whether there is a good reason to refuse access.

38 Again, neither the applicant's nor the plaintiff's submissions expressly address the issue of whether there are 'good reasons' to refuse access.

39 The applicant appears to submit that any reasons to refuse access are outweighed by public interest considerations favouring disclosure.[18]

40 The plaintiff appears to submit that good reasons to refuse access include the confidential nature of the confidential particulars and the 21 years that have passed since they were filed.[19]

41 I consider there are good reasons to refuse access to the confidential particulars. First, their confidential nature. Confidential documents require separate consideration from non-confidential court documents.[20] It is apparent that in filing the confidential particulars separately from the writ of summons indorsed with the statement of claim, that the plaintiff sought for those particulars to be treated confidentially. Paragraph 8 of the statement of claim refers to:

...particulars... provided by way of a confidential enclosure to this statement of claim marked 'confidential particulars'.

42 Secondly, the risks of harm which disclosure may cause to the legitimate interests of the owner of the information or others. The nature of the confidential particulars is apparent from the statement of claim and statements made by Master Sanderson in his decision on the first strike out application. The confidential particulars contain information relating to the plaintiff and I consider there is a risk of harm which disclosure may cause to the legitimate interests of the plaintiff, particularly in circumstances where this proceeding was dismissed by consent 18 years ago.

43 I find the applicant does not have a legitimate interest in accessing the confidential particulars. I consider that exercising my discretion to grant leave to access the confidential particulars would not advance the open justice principle and that there are good reasons to refuse access.

44 The applicant should not be granted access to the confidential particulars. I dismiss the application for non-party access to the confidential particulars pursuant to RSC O 67B r 16(1)(e).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Applicant's submissions [5]; statement of claim filed 6 September 2000 [1].

[2] Applicant's submissions [6]-[8].

[3] Applicant's submissions [9](a) and [13].

[6] Roberman v Metropolitan Health Service Board [2001] WASC 74 [8].

[7] Roberman v Metropolitan Health Service Board [2001] WASC 74 [8].

[8] Hancock Family Memorial [No 6] [24].

[9] Applicant's submissions [13]-[14].

[11] Applicant's submissions [14](a)(i).

[12] Applicant's submissions [14](a)(ii).

[13] Plaintiff's submissions [2]-[3] and [9].

[14] Plaintiff's submissions [6]-[8].

[15] Applicant's reply submissions [2], [3] and [7].

[16] Hancock Family Memorial [No 6] [24] and [32].

[17] Hancock Family Memorial [No 6] [33].

[18] Applicant's submissions [14]-[15].

[19] Plaintiff's submissions [2], [7] and [9].

[20] Seven Network Ltd v News Ltd (No 2) [2005] FCA 1394; (2005) 148 FCR 1 [27], cited in Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers & Anor [2007] WASC 133 [43]; Lisson Nominees Pty Ltd Trading as BGC Builders Supplies as trustee for the PBS Unit Trust v Conview Victoria Pty Ltd [No 2] [2021] WASC 381 [34].