Health Profession Board of Australia v GA

[2014] QCAT 216

CITATION: Health Profession Board of Australia v GA  [2014] QCAT 216

PARTIES:	Health Profession Board of Australia (Applicant)
v
GA (Respondent)

APPLICATION NUMBER: OCR251-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 20 May 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Registrar must prepare a Notice to produce to be issued.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – POWERS AND FUNCTIONS – where an application for a third party to produce documents relevant to the proceeding has been made – where the applicant has not identified that the documents sought exist – where the applicant has not identified that the third party is the holder of the documents – where the applicant has not confirmed that the person to whom the notice is addressed is an officer of the company holding the documents – whether as a matter of urgency the Tribunal can make an order requiring the production of documents

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62, s 63
Service and Execution of Process Act 1992 (Cth), s 30(1)

Li v Medical Board of Australia(No. 1) [2013] QCAT 595

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. A Health Profession Board of Australia has referred disciplinary proceedings against GA to the Tribunal pursuant to the Health Practitioner Regulation National Law.

2. A Health Profession Board of Australia has applied for an order pursuant to s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requiring a particular person of a particular company to produce certain documents to the Tribunal. The documents are identified in annexure A to the application as being:

   Details of incoming calls made to [two identified telephone numbers] including the date and time of the incoming call and the calling number during the period.

3. It is also said that:

   The applicant is happy for [the company] to limit the request results/documents to show incoming calls received from [an identified mobile telephone number] only (if this restriction is capable of being performed).

4. In its application the Board states that it seeks details of the incoming calls to the respondent’s practice landline numbers because the records may provide documentary evidence to substantiate the complainant’s evidence that telephone calls took place between her and the respondent, including after hours.

5. The application does not identify the position of the person within the company, or what the business is. Section 63(1) of the QCAT Act provides the Tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or thing relevant to the proceeding, to produce that document or thing to the Tribunal. In Li v Medical Board of Australia (No.1)[1] the Tribunal observed that in the absence of any statement in an application identifying that the person or entity to whom the order is to be addressed has, or likely to have, in that person’s possession or control any document or thing that might be relevant to the proceedings, the Tribunal should refuse the application as the circumstances for issuing the order would not be satisfied.

   [1][2013] QCAT 595 at [7] – [8].

6. Whilst, in this case, there is no such statement that the officer of the company has, or is likely to have, in his possession the documents sought, I am prepared to infer that the company is a telecommunications provider which holds records in respect of the telephone numbers in respect of which the orders sought. However, it should be observed that in applying for those orders the Board must have identified: that such records exist; that the company is the holder of them; and the person is a relevant officer of the company. Ordinarily, those matters should be clearly set out in an application for orders under s 63. Given that the hearing is due to start shortly and that s 30(1) of the Service and Execution of Process Act 1992 (Cth) requires 14 days notice to be given,[2] I am prepared to act on the inference which I have drawn.

   [2]Li v Medical Board of Australia(No. 1) at [12].

7. There is some difficulty, however, in the terms of the order which the Board seeks. In terms, the Board sought an order requiring the officer of the company to produce “details of incoming calls” with particulars of the details sought. In my view, that is not an appropriate order to seek pursuant to s 63(1) of the QCAT Act. It does not seek production of a document which is in existence; rather, it seeks the creation of a document which might contain certain details. Section 62(3) of the QCAT Act provides that the Tribunal may give a direction requiring a party to the proceeding to produce a document or another thing, or to provide information. That, of course, does not extend to third parties.

8. In my view, a third party can be directed on an application such as this to produce any document which it has which contains such details; but not to require the creation of a document setting out those details.  It may well be that an entity such as the company is able to extract information from its records in the form of a document containing such details.  It might seek to comply with the order by doing so.  However, it ought not be ordered to do so upon some assumption that this could occur.  Similarly, it may be able to extract records relating only to the incoming calls received from the particular number identified in the application.  Again, if it chooses to comply with the order by creating a document extracted from the records it keeps limited to that telephone number, then that is a matter for the company.  It should not, however, be ordered to create a document in that way.

9. Accordingly, the order which is sought ought be amended so as to require the production of any document containing details of incoming calls made to the identified numbers received from the identified mobile number between the relevant dates.  The means by which the company complies with that order, assuming that such a document exists, is a matter for the company. It is not required to produce a document limited to the calls received from the identified mobile number. Production of documents which showed all incoming calls would satisfy the order. But it may choose to produce a document which shows only those calls received from the identified mobile number.