ALZ v WorkCover NSW - [2015] NSWCATAD 241

Civil and Administrative Tribunal

New South Wales

Case Name:	ALZ v WorkCover NSW
Medium Neutral Citation:	[2015] NSWCATAD 241
Hearing Date(s):	3 November 2015
Date of Orders:	22 September 2015
Decision Date:	3 November 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	ALZ’s request to refer certain questions of law to the Supreme Court is refused.
Catchwords:	ANCILLARY DECISION – request for referral of questions of law to Supreme Court – questions arise from separate Appeal Panel proceedings – applicant has a remedy by way of appeal to the Supreme Court from the Appeal Panel’s decision
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 54 Health Records and Information Privacy Act 2002 (NSW)
Cases Cited:	ALZ v Workcover New South Wales [2015] NSWCATAP 138
Category:	Consequential orders (other than Costs)
Parties:	ALZ (Applicant) WorkCover NSW (Respondent)
Representation:	ALZ (Applicant in person) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	133158

EX TEMPORE REASONS FOR DECISION

DEPUTY PRESIDENT HENNESSY: This is an application under s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) for the referral of questions of law to the Supreme Court. Section 54 states that:
(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
(2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.
The substantive proceedings are between ALZ and Workcover NSW and relate to the Health Records and Information Privacy Act 2002.
The request for referral is contained in a letter from ALZ dated 28 July 2015. The request arises from separate proceedings involving her and WorkCover NSW determined by the Appeal Panel on 10 July 2015: ALZ v Workcover New South Wales [2015] NSWCATAP 138. ALZ questions the legality of the Appeal Panel’s rulings and says they are unjust and not in accordance with the purpose and objects of the Health Records and Information Privacy Act. According to ALZ, if the Tribunal follows the Appeal Panel’s rulings when determining the present proceedings, an injustice will occur because her personal information will not be protected.
ALZ maintains that some issues on which she appealed were not addressed by the Appeal Panel and that others were decided in a way with which she disagrees. She has set out in her submissions a table identifying the questions of law for referral to the Supreme Court. The issues relate to the interpretation of the Health Privacy Principles (HPPs) in the Health Records and Information Privacy Act. In particular, the questions relate to HPP 1(1)(b), 2, 3, 4, 9, and 10.
A question of law cannot be referred to the Supreme Court unless the President has consented in writing to the question being referred. I appreciate ALZ’s candour in saying that she…

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.

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Details

Case: [2015] NSWCATAD 241
Decision Date: 3 November 2015

CaseChat Overview and Summary

The applicant, ALZ, sought to have certain questions of law referred to the Supreme Court, which arose from proceedings before the Appeal Panel. The case was heard in the NSW Civil and Administrative Tribunal (NCAT). The primary issue before the Tribunal was whether ALZ had the right to have questions of law referred to the Supreme Court when it had an alternative remedy available by way of appeal from the Appeal Panel’s decision. The Tribunal needed to determine if ALZ’s request for referral could proceed in the absence of an appeal or if the request was dependent upon the outcome of the appeal.

The Tribunal held that ALZ had a remedy available by way of appeal from the Appeal Panel’s decision, and therefore, the questions of law could not be referred to the Supreme Court in the absence of an appeal. The Tribunal reasoned that the applicant’s request was dependent upon the outcome of the appeal and could not proceed independently. As a result, the Tribunal found that ALZ’s request to refer certain questions of law to the Supreme Court was refused.

The Tribunal's decision was based on the principle that an applicant must exhaust all available remedies before seeking further relief. The Tribunal held that ALZ’s request was premature and that the applicant had not demonstrated any exceptional circumstances that would warrant the referral of questions of law to the Supreme Court. The Tribunal concluded that ALZ’s request should be refused, and it was not necessary to refer the questions of law to the Supreme Court at this stage.

The Tribunal refused ALZ’s request to refer certain questions of law to the Supreme Court. The Tribunal held that ALZ had a remedy available by way of appeal from the Appeal Panel’s decision and that the request for referral was dependent upon the outcome of the appeal. As a result, the Tribunal found that ALZ’s request was premature and could not proceed independently. The Tribunal concluded that the applicant had not demonstrated any exceptional circumstances that would warrant the referral of questions of law to the Supreme Court, and therefore, the request was refused.

Orders

Orders of the court

ALZ’s request to refer certain questions of law to the Supreme Court is refused.

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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