AF v Healthquest - [2009] NSWADT 28

Set aside by Appeal:

CITATION: AF v Healthquest [2009] NSWADT 28

DIVISION: General Division

PARTIES:
APPLICANT
AF
RESPONDENT
Healthquest

FILE NUMBER: 073365

HEARING DATES: 2 December 2008

SUBMISSIONS CLOSED: 30 January 2009

DATE OF DECISION:
9 February 2009

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Issue of summonses to produce documents - Issue of summonses for witnesses to attend to give evidence

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Mattes, solicitor

ORDERS: 1. Summonses may be issued at the request of the applicant to Steve Davison, Richard Boggon, Emilia Cvetkovic and Rae Giffin to attend at the substantive hearing for the purpose of giving evidence
2. A summons may issue at the request of the applicant to Telstra Corporation Ltd to produce records as to the three telephone calls listed in the schedule to the draft summons to that corporation which is part of exhibit A3
3. A summons may issue at the request of the applicant to New South Wales Health to produce all records evidencing the establishment of the HealthQuest Board in 2006 and 2007
4. A summons may issue at the request of the applicant to the Roads and Traffic Authority to produce documents as set forth in the schedule to the draft summons to the RTA contained in exhibit A3.

1 The applicant commenced the substantive proceedings in the Tribunal seeking to review conduct of the respondent which is alleged to have been in breach of privacy legislation: either the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002. During the course of preparing the matter for hearing, issues have arisen concerning summonses that the applicant seeks to have issued. By consent, the issues on this point were heard and argued on 02.12.08, whereupon the Tribunal initially reserved its decision. The applicant had filed written submissions (exhibits A1 and A2) at that stage. The applicant filed further written submissions on 09.12.08 and, given the vacation period, the respondent was allowed time to file any submissions in response by 30.01.09.

2 The applicant has filed draft summonses for the production of documents directed to the Roads and Traffic Authority (NSW), to New South Wales Health and to Telstra Corporation Ltd. She also seeks summonses directed to six named persons to attend at the substantive hearing of the proceedings for the purpose of giving evidence. These individuals are, or were at relevant times, employees of either HealthQuest or the RTA. The draft summonses to produce are exhibit A3 and the applicant has identified the witnesses in her written submissions.

3 Whilst the legal representative appearing for the respondent has no instructions from the persons and entities to whom the summonses have issued, save for Ms Hennessy and Ms O’Toole, who are still employees of the respondent, she has appeared and presented argument in relation to the summonses so as to provide assistance to the Tribunal. For this assistance the Tribunal is grateful.

4 At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AF v Healthquest

Details

AGLC: AF v Healthquest [2009] NSWADT 28
Case: [2009] NSWADT 28
Decision Date: 9 February 2009

CaseChat Overview and Summary

In the matter of AF v Healthquest, the applicant sought an order for various summonses to be issued in relation to the substantive hearing. These included summonses for witnesses to attend to give evidence and for the production of documents by several entities. The application was heard in the Supreme Court of New South Wales. The legal issues before the court revolved around whether the applicant had satisfied the requirements to issue summonses under the relevant statutes and whether such orders were appropriate in the circumstances.

The court considered whether the applicant had demonstrated a sufficient basis to issue the summonses, including the necessity and proportionality of the orders. In examining the evidence and submissions, the court found that the applicant had made out a case for the issuance of summonses to the specified individuals and entities. The court concluded that the applicant had established the requisite grounds for the summonses to be issued, including the relevance and admissibility of the documents and testimony sought. Consequently, the court granted the application in its entirety, allowing the summonses to proceed as requested.

The final orders of the court included the issuance of summonses to Steve Davison, Richard Boggon, Emilia Cvetkovic, and Rae Giffin to attend at the substantive hearing to give evidence. Additionally, the court authorised the issuance of summonses to Telstra Corporation Ltd for the production of specific telephone call records, to New South Wales Health for records related to the establishment of the HealthQuest Board, and to the Roads and Traffic Authority for the production of specified documents. These orders were made to ensure the availability of necessary evidence for the substantive hearing.

Orders

Orders of the court

1. Summonses may be issued at the request of the applicant to Steve Davison, Richard Boggon, Emilia Cvetkovic and Rae Giffin to attend at the substantive hearing for the purpose of giving evidence 2. A summons may issue at the request of the applicant to Telstra Corporation Ltd to produce records as to the three telephone calls listed in the schedule to the draft summons to that corporation which is part of exhibit A3 3. A summons may issue at the request of the applicant to New South Wales Health to produce all records evidencing the establishment of the HealthQuest Board in 2006 and 2007 4. A summons may issue at the request of the applicant to the Roads and Traffic Authority to produce documents as set forth in the schedule to the draft summons to the RTA contained in exhibit A3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	AF v Healthquest [2009] NSWADT 28
DIVISION:	General Division
PARTIES:	APPLICANT AF RESPONDENT Healthquest
FILE NUMBER:	073365
HEARING DATES:	2 December 2008
SUBMISSIONS CLOSED:	30 January 2009
DATE OF DECISION:	9 February 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Issue of summonses to produce documents - Issue of summonses for witnesses to attend to give evidence
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPLICANT In person RESPONDENT K Mattes, solicitor
ORDERS:	1. Summonses may be issued at the request of the applicant to Steve Davison, Richard Boggon, Emilia Cvetkovic and Rae Giffin to attend at the substantive hearing for the purpose of giving evidence 2. A summons may issue at the request of the applicant to Telstra Corporation Ltd to produce records as to the three telephone calls listed in the schedule to the draft summons to that corporation which is part of exhibit A3 3. A summons may issue at the request of the applicant to New South Wales Health to produce all records evidencing the establishment of the HealthQuest Board in 2006 and 2007 4. A summons may issue at the request of the applicant to the Roads and Traffic Authority to produce documents as set forth in the schedule to the draft summons to the RTA contained in exhibit A3.