AB v Queensland Building Services Authority [2013] QCATA 187

CITATION: AB v Queensland Building Services Authority [2013] QCATA 187 PARTIES: Mr AB (Applicant/Appellant) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: APL196-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon James Thomas AM QC, Judicial Member DELIVERED ON: 24 January 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. 2. The Appeal Tribunal prohibits the publication of: a. Any identifying information of Mr AB in these reasons for decision; and b. Attachment “B” to the Application for Leave to Appeal and Appeal filed 28 June 2012. CATCHWORDS: APPEALS – principles for grant of leave – principles applicable to appeals against exercise of discretion – Non-Publication orders – Principles on which such orders made – whether the Tribunal erred in refusing to grant a non-publication order – whether a non- publication order should be granted in respect of this decision Queensland Civil and Administration Act 2009 ss 26, 28, 29, 32, 66, 66(2)(b), 142, 142(3). Queensland Building Services Authority Act 1991 s 56AD. -- 1 of 6 -- 2 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] 148 CLR 170 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 Mace v Murray [1955] 92 CLR 370 Mitchamy Development Pty Ltd v Morrison and Walsh [2010] QCATA 51 Norbis v Norbis [1986] 161 CLR 513 R v McGrath [2002] 1 Qd R 520 Russell v Russell (1976) 134 CLR 495 Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This is an appeal against a Member‟s refusal to make a non-publication order under s 66 of the QCAT Act. History [2] Mr AB was the director of a number of companies, one or more of which became insolvent. This was deemed by the QBSA to be a „relevant company event‟, which impacted upon his registration as a builder. Mr AB then applied to be a „permitted individual‟ under s 56AD of the Queensland Building Services Authority Act 1991. Success in such an application was necessary in order to avoid exclusion or cancellation of his licence. [3] On 31 October 2011 the QBSA refused his application. [4] Mr AB then brought two applications to QCAT, one for review of QBSA‟s refusal (“the s 56AD proceedings”), and the other for a non-publication order concerning those review proceedings. [5] Among other material presented to QCAT by Mr AB was an undated psychiatric report of Dr Miles, received by the Tribunal on 9 January 2012. Dr Miles expressed the view that „a Tribunal that is public and open to publication would threaten his mental and physical safety‟. It was relied on in Mr AB‟s submissions that there ought not to be any publication of the proceedings or of his name. [6] The Tribunal rejected Mr AB‟s submissions, and on 13 February 2012 dismissed his application for a non-publication order. The reasons for that -- 2 of 6 -- 3 decision included reference to the contents of Dr Miles‟s report and to Mr AB's submissions alleging extreme stress and risk of suicide. [7] Mr AB then brought a further application seeking a non-publication order concerning those references in the statement of reasons of 13 February 2012. [8] The learned Member rejected that application on 31 May 2012. [9] The present appeal is against that refusal. Jurisdiction [10] The present application seeks to bring an appeal or to have leave to appeal. The right to bring such proceedings arises under ss 26 and 142 of the QCAT Act. [11] Section 142(3) provides that an appeal may be made only by leave of the Tribunal in respect of „a decision that is not the tribunal’s final decision in a proceeding‟. The relevant decision (refusal to make a non-publication order under s 66 of the QCAT Act) is a procedural decision ancillary to the determination of the principal issues between the parties. It is a direction as to the manner in which the principal process is to be carried out, and does not finally decide the matters the subject of the proceeding. [12] Section 142(3) reflects long standing provisions in court appeals where leave of the court is necessary to proceed with an appeal against interlocutory or non-final orders. The definitions of „decision‟, „final decision‟ and „proceeding‟ in the QCAT Act suffer from some circularity, but the overall effect seems to be to mirror the court system in this respect. [13] The decision against which this appeal is brought is not the Tribunal‟s final decision in a proceeding. Leave to appeal is therefore necessary before it can proceed. [14] Leave to appeal is ordinarily only granted if the applicant can show a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain some further substantive relief; or where some substantial injustice is apparent; or where there is some question of general importance and ventilation of it would be to the public advantage. The principles upon which leave may be granted are compendiously summarised in Mitchamy Development Pty Ltd v Morrison and Walsh.1 [15] If leave were granted, the appeal would be decided on principles applicable to appeals against the exercise of a discretion. The relevant discretion here is that which arises under s 66(2) of the QCAT Act. There are five statutory criteria for its exercise, and they are very broadly expressed. Under that section a non-publication order may be made 1 [2010] QCATA 51 at [19] per Wilson J. -- 3 of 6 -- 4 …only if the tribunal considers the order is necessary – (a) to avoid interfering with the proper administration of justice; or (b) to avoid endangering the physical or mental health or safety of a person; or (c) to avoid offending public decency or morality; or (d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or (e) for any other reasons in the interests of justice. [16] The principles upon which an appellate tribunal will review the exercise of such a discretion are of long standing. An appellate tribunal does not simply substitute the view that it would have taken if it had been in the place of the primary tribunal. It will not interfere unless it reaches a clear conclusion that there has been some error of fact or law, and that the discretion has not been properly exercised.2 It is usually necessary to show that the primary tribunal has acted on a wrong principle, or has been guided by extraneous or relevant matters; or mistaken the facts, or failed to take into account some material consideration, or that some error must be inferred because the result is plainly unjust or unreasonable. It has been further observed that an appeal court exercises even greater restraint in reviewing decisions involving the exercise of a discretion affecting procedural rights than it does when it reviews a discretionary decision affecting substantive legal rights.3 Is error shown in the exercise of the discretion? [17] Mr AB‟s main contention is that Dr Miles‟ report, though regarded by the Member as unconvincing, is still „medical evidence‟ and that all such evidence „should remain confidential‟. The confidentiality on which he relies must be the privilege that attaches to communications between doctor and patient. However such privilege may be waived, and once a party elects to present such a report to a court or tribunal the privilege is irretrievably lost. Whether a non-publication order should be made with respect to such a report is of course of separate question. However Mr AB‟s argument on that score is not strengthened by any principle of privilege or medical confidentiality. This point is misconceived. [18] Mr AB correctly points out that the publication of the reasons in the s 66 QCAT Act application is a separate issue to the publication of the substantive decision in the s 56AD proceedings. The real question is whether a non-publication order should have been made in respect of certain material that Mr AB chose to rely on in seeking the non-publication order. 2 Mace v Murray [1955] 92 CLR 370, 378 - 379; Norbis v Norbis [1986] 161 CLR 513, 518, 520. 3 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] 148 CLR 170, 176- 177. -- 4 of 6 -- 5 [19] Mr AB was the party who chose to put his mental health in issue. He sought the suppression of his name in the s 56AD proceedings. Such proceedings have a distinct public aspect, including the natural interest of unsecured creditors following company insolvency, and the right of a person to deal with the public as a registered builder. It is not surprising that this attempt to suppress publication of his name in such a context failed. The question now is whether the details of his unsuccessful attempt ought now to be suppressed under s 66 of the QCAT Act. [20] When a litigant puts in issue his or her own mental or physical condition in order to obtain some procedural or substance of advantage – whether by way of adjournment, status or otherwise – it becomes a relevant feature of the litigation, and the fact that he or she did so has potential relevance and interest for any researcher or interested person. It does not need to be directly relevant to the principal issues. There will of course be cases where matters of delicacy associated with substantial irrelevance to the main issues may persuade a tribunal that it is the interest of justice to prohibit publication. The making of such assessments lies very much within the perception of the tribunal that determines the questions. [21] Mr AB submitted that the medical information had „no baring (sic) on the substantive matters under s 56AD‟ litigation. This is correct to the extent that it was not in issue between the parties until he introduced it, and having failed on it, it no longer has any bearing on final determination. But the real question is whether the learned Member erred by failing to find any of the criteria under s 66(2) of the QCAT Act to have been satisfied. [22] The most immediately relevant factor in the present case seems to be that in s 66(2)(b), namely whether it was „necessary… to avoid endangering the physical or mental health or safety of a person‟. On this point the learned Member was entitled to take the view that the report was unconvincing and that s 66(2)(b) was not made out. [23] Mr AB's application complains that no sufficient explanation was provided to him in accordance with ss 28 and 29 of the QCAT Act, that Dr Miles could have been called and his evidence tested, and that a fuller hearing on the issue of the medical evidence should have been held. The hearing was on the papers, and each party was free to advance whatever evidence he or it chose. The learned member was entitled to make a determination on this procedural question on the material that the parties presented, and I do not think that he was obliged to intervene in the pursuit of further evidence. [24] Apart from that, as already discussed, and the general complaint that an affirmative decision should have been made, no submissions have been made on this appeal drawing attention to any specific error or failure on the Member‟s part. [25] One matter that gives me concern is the fact that the adverse party (the QBSA) raised no real objection to the granting of the present application concerning publication of the reasons for judgement, and submitted that -- 5 of 6 -- 6 „an alternative... could be that the publication of the decision be on the basis that the applicant be de-identified’. However, the issue of publication of the tribunals processes as a public aspect, and is not a matter on which parties could insist upon an order. The matter was for the Member to determine, and the question is whether he erred. [26] While I may not necessarily have come to the same conclusion as the learned Member, I am unable to perceive any error in the decision. Reference was made to the relevant authorities including the principle of open justice.4 The approach of courts in prohibiting publication of proceedings is helpfully discussed in Russell v Russell5 and R v McGrath6, and nothing in the reasoning for the present decision runs counter to those considerations. The word „necessary‟ in s 66 is a reminder that such orders should not lightly be made. [27] In the absence of any apparent error on the part of the Member the appeal would fail if leave were granted. There is, in any event, no basis upon which leave to appeal should be granted. [28] The application is refused. Publication of these reasons on appeal [29] In relation to publication of the reasons in the present appeal I am not circumscribed by the principles that must be applied in the making of appellate determinations. I am entitled to act on my own initiative under section 66(3) on the question of the form in which the present reasons are to be published. In my view there is no good reason why Mr AB's anxieties should be increased by reason of his unsuccessful attempts in the present appeal, and it is not in the interests of justice that he be identified by name in publication of the present reasons. Consistently with the attitude taken by the QBSA I will direct that copies of these reasons be sent to the parties, and that thereafter they only be published in a form that does not enable the applicant to be identified. This can be achieved by describing him as "Mr AB”. I will further direct that attachment “B” to the application for leave to appeal and appeal filed on 28 June 2012 be not published. 4 Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385; John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131-142; Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [10]. 5 (1976) 134 CLR 495-520. 6 [2002] 1 QdR 520, 523-524. -- 6 of 6 --