Open Justice and Closed Tribunals: The Court of Appeal on proceeding suppression orders

WEQ (a pseudonym) v Medical Board of Australia [2021] VSCA 343

In the recent decision of WEQ (a pseudonym) v Medical Board of Australia (“WEQ”), the Court of Appeal took the opportunity to clarify when a court can make a proceeding suppression order.  This is a type of suppression order under the Open Courts Act 2013 (Vic) (“Act”) which prohibits or restricts the disclosure of a report of all or part of a proceeding, or any information derived from a proceeding. Ultimately, the applicant was successful in challenging the scope and duration of the proceeding suppression order.

Key takeaways

• The categories under s 18 of the Act for the making of a proceeding suppression order are not closed. However, the test of necessity is a “stringent standard, requiring a high degree of satisfaction”.
• The existence of a court order prohibiting or restricting the publication or disclosure under another statutory regime (like under s 121 of the Family Law Act 1975 (Cth)) may make it less likely that a court or tribunal will be satisfied that a proceeding suppression order under the Act is necessary over the same information.
• The existence of a proceeding suppression order may make a closed tribunal (or court) order or a pseudonym order less achievable.

What does the Act say?

Section 4 of the Act provides for a presumption in favour of disclosure of information with the purpose of strengthening and promoting the principles of open justice. This reflects the common law’s consideration of open justice as an essential part of the Australian justice system, and departure from this fundamental rule of the common law is permitted only in specified circumstances (at [59]). These principles assume particular importance in disciplinary or criminal proceedings because the publicity of such matters helps protect the public, indicates what is and is not acceptable professional conduct, and deters others (at [61]). A court or tribunal may make a proceeding suppression order if satisfied that the order is “necessary” for any one of a number of reasons (s 18(1)). A proceeding suppression order may be made on the court or tribunal’s own motion or on the application of a party or “any other person considered by the court or tribunal to have a sufficient interest in the making of the order” (s 19(1)).

WEQ’s case

The applicant is a registered medical professional, who was involved in a Family Court proceeding involving his former wife. The Family Court made orders in that proceeding but did not publish its reasons to protect the parties and their children from humiliation and embarrassment.

During the Family Court proceeding, it emerged that the applicant had provided misleading information in the context of donating sperm for fertility treatment purposes. The applicant had also communicated with his former wife’s treating specialist while posing as someone who was presently treating her and had requested her clinical records and other confidential information. The Family Court referred these matters and evidence to the Australian Health Practitioner Regulation Agency (“AHPRA”) for investigation. AHPRA then applied to  the Family Court for permission to use these materials in a disciplinary proceeding in VCAT. The Family Court granted permission, conditional on AHPRA taking all reasonable steps to preserve the anonymity of the applicant, his former wife and their children.

After the applicant was referred to VCAT, the respondent applied for a proceeding suppression order but went beyond the terms imposed by the Family Court and sought suppression of all the respondent’s witnesses and any witnesses in the Family Court proceeding. VCAT then made a suite of orders going beyond even those sought by the respondent, a pseudonym order, and (over the applicant’s objection) a closed tribunal order. The proceeding suppression order was expressed to operate until the death of all of the persons (or class of persons) listed in the order. VCAT expressed the view that its order was necessary for “any other reason in the interests of justice” (s 18(1)(f)(ii)). The applicant’s application for the orders to be revoked was refused. The applicant appealed to the Court of Appeal.

The Court’s decision

In considering the test for a proceeding suppression order, the Court (constituted by Kyrou and McLeish JJA) emphasised at [64]-[67]:

• the s 18 test of necessity is a “stringent standard, requiring a high degree of satisfaction”;
• this standard applies even where an application is not opposed or consented to;
• a court or tribunal must carefully scrutinise the justification for, and the nature and scope of the proposed order;
• the duration and scope of a proceeding suppression order must not extend beyond what is necessary to achieve its purpose; and
• reasons must be provided under s 14A(1) of the Act.

The Court considered at [69] that reputational damage, embarrassment, shame or humiliation of a party (or their family members or associates) is not usually a reason to depart from the principle of open justice, stating at [70] that “[s]omething more is required” than the mere desire of one party to avoid such matters. In relation to disciplinary proceedings, the Court noted at [71] that proceeding suppression orders are generally uncommon and have been made where it was established that publicity would imperil the health and safety of the professional or their family.

Similarly, despite the connection to a family law proceeding, the Court emphasised at [86] that sparing family members from adverse publicity is “ordinarily no warrant for suppressing the identity of a medical practitioner” who is subject to disciplinary proceedings. However, the Court did note at [86] that there may be matters, such as the medical history of a party, patient or another (like the applicant’s former wife) or a purpose like preventing psychological harm to a child, which might necessitate the making of a proceeding suppression order. As the Court put it at [72], the nature of VCAT’s jurisdiction means that it often hears evidence of an “acutely sensitive nature” which might make publication more than ordinarily invasive of a person’s privacy. However, such matters could only form the basis for an order which is narrow in scope and duration.

Significantly, in considering the interaction between a closed tribunal (or court) order and a proceeding suppression order, the Court said at [91] and [93] that the requisite standard to make a closed tribunal order may not be possible if a proceeding suppression order (or a pseudonym order) has been made.

Section 121 of the Family Law Act 1975 (Cth)

A large portion of the Court’s judgment deals with the operation of s 121 of the Family Law Act which restricts the publication of court proceedings in that jurisdiction (and under which the Family Court had made its orders restricting publication of its reasons). The Court considered that there are important limits to s 121. First, it does not prohibit dissemination of allegations which are not an “account” of those proceedings (at [76]). Secondly, the existence of orders under s 121 of the Family Law Act may make it not necessary for a proceeding suppression order; that is, it may constitute other reasonably available means under s 18(1)(a) of the Act (at [77] and [81]). Finally, the time for considering such matters is when a party seeks to rely on specific material which may breach a s 121 order (at [82]). Given the significant number of Victorian statutes that authorise a court or tribunal to prohibit or restrict the publication or disclosure of information in a legal proceeding, the Court’s consideration of s 121 of the Family Law Act is likely to have greater implications.