Coronavirus: Health lawyers hit over emails delay

Health Department lawyers have been rebuked by Victoria’s hotel quarantine inquiry for giving the impression the state’s chief health officer had instructed them that an email chain.

Victorian Chief Health Officer Brett Sutton. Picture: Darrian Traynor

Health Department lawyers have been rebuked by Victoria’s hotel quarantine inquiry for giving the impression the state’s chief health officer had instructed them that an email chain that appeared to contradict his sworn evidence did not need to be produced.

Former judge Jennifer Coate also criticised Department of Health and Human Services’ lawyers for their belated production of the email chain, saying it should have been produced earlier because it became a “critical document” and “to avoid the inquiry reaching findings based on incomplete and potentially misleading evidence”.

The March 27 email chain, known as Exhibit 230, showed a Department of Home Affairs official, Sandra Jeffery, asking CHO Brett Sutton to provide details of quarantine arrangements in Victoria, including security arrangements.

Prof Sutton asked DHHS deputy director strategy and policy Braedan Hogan to respond and copy him in. Mr Hogan told Ms Jeffery that “private security is being contracted to provide security at the hotels with escalation arrangements to (Victoria Police) as needed”.

Prof Sutton acknowledged receipt of the email with the words: “Thanks so much, Braedan.”

In her final report, Ms Coate said the email chain had been the subject of “specific inquiries” as it appeared to conflict with Prof Sutton’s previous evidence that he was unaware that private security had been engaged until after the outbreaks at the Rydges Hotel in late May.

She accepted Prof Sutton’s subsequent evidence that while the email chain presented an opportunity for him to become aware that private security had been engaged before May, he did not “register” such information at that time. But she said she did not accept the reasons given by DHHS for not producing the email chain before October 15.

On October, 19, MinterEllison on behalf of DHHS wrote to the inquiry, stating Prof Sutton “instructed us he had not read the detail of the email ... and that the evidence that he gave to the board was truthful at the time and remains so”. “Prof Sutton further instructed us that he did not consider he needed to clarify his evidence and therefore the email did not need to be provided to the board for that reason,” it says.

Prof Sutton subsequently said he did not instruct MinterEllison not to produce the documents.

DHHS said the October 19 letter did not state that Prof Sutton directed MinterEllison not to produce the email chain but referred to him providing factual information as to the bearing of the emails on his earlier evidence.

“The 19 October 2020 letter is ... consistent with, Prof Sutton’s 4 November 2020 affidavit, when it is understood that the word ‘instructed’ did not convey that Prof Sutton was directing that exhibit 230 not be produced,” it says.”

Ms Coate said she did not accept the DHHS submissions.

“It was at least open, on a reasonable reading of the above extract from MinterEllison’s letter dated 19 October 2020, to conclude that Prof Sutton had instructed MinterEllison that Exhibit 230 ‘did not need to be provided to the board’,” she said.

“As a very experienced law firm, MinterEllison would have been well-aware of what the term ‘instructions’ means as between lawyers and clients. It is well understood to mean ‘what your client is telling you to do’.

“Had MinterEllison not intended to convey that meaning, more care should have been taken to avoid that impression ...”