A recent decision of the Queensland Civil and Administrative Tribunal (the Tribunal) has confirmed regulators may obtain a release from their implied undertaking in order to exercise other regulatory functions in the public interest.

Key Takeaways

The implied undertaking prescribes that a party to proceedings cannot, without leave, use documents obtained in that proceeding for another purpose or in another proceeding.

Documents produced to a Tribunal in response to orders (or non-party notices) and filed pursuant to directions fall within the scope of the implied undertaking.

In deciding whether to release a party from the implied undertaking, the Tribunal will consider if special circumstances arise. Special circumstances can include the wider public interest, practical considerations of ascertaining the documents again and the proposed use of resources, and any impact on the human rights of the party affected by the grant of leave.

Brief Facts

QRZ (Applicant) is a nurse holding registration subject to conditions that limit her practice to administrative roles approved by the Nursing and Midwifery Board of Australia (the Board). On 14 April 2023, she commenced an appeal against the Board’s decision to impose conditions on her registration pursuant to section 178 of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law).

In the course of the appeal, the Tribunal had made directions and issued s63 orders leading to the filing of material by the Applicant and production of medical information by Services Australia and various health practitioners. Relying upon that information, the Board has obtained two independent psychiatric ‘desk top’ assessments of the Applicant’s health and fitness to practise.

In April 2024, the Applicant applied to renew her registration with the Board. In her application, the Applicant declared that she does not have an impairment that detrimentally impacts her capacity to continue to practice.

The Board sought to be released from the implied undertaking in order to rely upon the evidence obtained in the Tribunal proceedings when considering the Applicant’s renewal application.

Judgment
Submissions

The Board acknowledged it was bound by the implied undertaking as expressed in Hearne v Street and relied upon the principles regarding special circumstances described in Springfield Nominees in seeking leave.

It was submitted by the Board, that the documents obtained by the section 63 orders are equivalent to documents produced in response to a subpoena and fall within the implied undertaking. The expert reports also fall within the scope of the undertaking as they were produced wholly or partly for the purpose of assisting the Tribunal to determine the correct and preferable decision.

The discretionary factors that gave rise to special circumstances included that the National Law imposes on the Board a paramount duty to protect the public and public confidence in the safety of health services provided. If the Board was not granted leave, the information available to it for the purpose of determining the Applicant’s renewal application would be limited to a 2019 independent health assessment and documents included in a section 21(2)(b) bundle filed in July 2023. This would fetter the Board’s power to make a registration decision in accordance with its statutory obligations.

It was also relevant that the Board has the power to investigate applications for registration and renewal, including power to obtain records and request a health assessment. Arguably, the Board could obtain the same records and further expert evidence but this would delay determination of the application and impose further costs on a self-funded regulator. The Applicant’s refusal to participate in a face to face health assessment was also taken into account by the Tribunal.

Finally, the Board does not seek to publish the Applicant’s clinical and other health information and there is no second proceeding for which the Board seeks the documents.

The Board relied upon the Federal Court decisions of Ashby v Slipper (No 2) and Sinnott v Chief of Defence Force in which a wider public interest was found relevant to decisions releasing a party from their implied undertaking. In each case, the Federal Court granted leave in circumstances where there was no second proceeding on foot and because of broader public interest principles. In Ashby, the release from the undertaking was granted to facilitate referral of evidence to the Australian Federal Police to investigate possible Commonwealth offences. In Sinnott, the Chief of the Defence Force was granted leave to facilitate a referral to the Legal Services Commission. Justice Logan referenced a singular public interest being served in permitting the release of the documents.

Decision

The Tribunal was satisfied that special circumstances arose from the duties imposed on the Board by the National Law.

The documents produced pursuant to the non-party notices (or s63 orders) related solely to the Applicant and contain the most current information about her health. That information is central to the Board’s assessment of her renewal application. The Tribunal took into account the practical matter of the steps the Board has already taken to obtain this material, including the cost of production, and that obtaining it again using statutory powers would result in duplication of costs and effort.

Further, the Tribunal was satisfied that any limitation on the Applicant’s human rights is consistent with the paramount guiding principle. These paramount principles or public considerations outweigh the private interests of the Applicant.

The Board was granted leave to use and rely on the documents obtained in the appeal for the purpose of determining the Applicant’s renewal application and otherwise to achieve the Board’s objectives and exercise of its functions and powers under the National Law.

Implications

The decision gives Boards and other regulators practical guidance on the circumstances when it is appropriate and in the interests of justice for a Court or Tribunal to grant leave to use documents and evidence obtained in a proceeding for a separate regulatory purpose in the wider public interest.