Black v Hunter New England Area Health Service

[2009] NSWADTAP 66

Appeal Panel - Internal

CITATION:	Black v Hunter New England Area Health Service [2009] NSWADTAP 66
PARTIES:	APPELLANT Phillip Ross Black RESPONDENT Hunter New England Area Health Service
FILE NUMBER:	099038
HEARING DATES:	18 August 2009
SUBMISSIONS CLOSED:	7 September 2009
DATE OF DECISION:	11 November 2009
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Leave to appeal out of time – –relevant principles – leave refused
DECISION UNDER APPEAL:	18 August 2009
FILE NUMBER UNDER APPEAL:	083111
DATE OF DECISION UNDER APPEAL:	11/06/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Health Records and Information Privacy Act 2002
CASES CITED:	NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9
REPRESENTATION:	APPELLANT In person RESPONDENT A Johnson, solicitor
ORDERS:	The application by Mr Black to lodge an appeal out of time is refused.

REASONS FOR DECISION

Introduction

1 The appellant, Mr Black, has requested that the Appeal Panel accept his appeal even though it was lodged out of time. The general rule is that an appeal should be lodged within 28 days after the Tribunal gives the party written reasons for the appealable decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(3)(a). The Appeal Panel has a discretion to accept late appeals: ADT Act, s113(3)(b). The Tribunal’s reasons were handed down on 6 November 2008. The appeal was lodged on 22 June 2009, more than six months out of time.

Tribunal’s decision and Mr Black’s application under the HRIPA

2 The Tribunal’s decision was to affirm a decision of the Hunter New England Area Health Service (the Health Service) made under the Freedom of Information Act 1989 (FOI Act) to release a triage form relating to Mr Black with material deleted in respect of which exemptions had been claimed. A triage form is completed by a mental health clinician employed by the Health Service. It records information for the purpose of making an initial assessment of the mental health of the person the subject of the report. If necessary, the Health Service may contact that person and offer an assessment or invoke the relevant provisions of the Mental Health Act 2007.

3 The issue before the Tribunal was whether the exemptions in cl 13 of Schedule 1 to the FOI Act (documents containing confidential information) and/or cl 16 (documents concerning the operations of agencies) applied. The internal review decision made by the Health Service also relied on the exemption in cl 4(1)(c) relating to documents affecting law enforcement and public safety where the document contains matter the disclosure of which could reasonably be expected to endanger the life or physical safety of any person. The Health Service did not rely on that exemption before the Tribunal.

4 Shortly after the Tribunal made its decision, Mr Black sent a facsimile stating that he would be lodging an appeal against the decision. However, on 14 December 2008, about 5 weeks after the reasons for decision had been given to Mr Black, he wrote to the President of the Tribunal saying, among other things, that he had changed his mind:

I have now decided no appeal will be lodged. I see no point in making an appeal application and waste more time and money on this application when I am in the process of lodging applications for release of the same medical records under the appropriate Act.

5 The Act to which Mr Black was referring is the Heath Records and Information Privacy Act 2002 (HRIPA). On 2 March 2009 Mr Black lodged an application under that Act seeking a review of the conduct of the Health Service in denying him access to certain documents including the document that had been the subject of his previous application under the FOI Act. Mr Handley, the Judicial Member who had determined Mr Black’s application for review under the FOI Act, was also the Member who constituted the Tribunal hearing Mr Black’s application under the HRIPA. Mr Black applied for Member Handley to disqualify himself from hearing that application on the ground of bias. Member Handley listened to the audio recording of the proceedings over which he presided when Mr Black made his application under the FOI Act and noted that Mr Black had told him that he had only learned a few weeks ago about his right to make an application under the HRIPA. Mr Black asked Member Handley to consider his application not only in relation to the FOI Act but also in relation to the HRIPA. Member Handley says that he told Mr Black that he could not do so because his application was under the FOI Act and he did not have power to review his application as if it were made under the HRIPA. Member Handley said that Mr Black was critical of his ‘pedantic’ approach and said that he would be making a new application under the HRIPA.

6 Member Handley went on to say that as the hearing was drawing to a close, there was a brief discussion about Ms Johnson, representing the Health Service, providing Mr Black with information about the application process under HRIPA. Member Handley concluded that this was ‘purely a matter of being helpful and providing information about the application process to a person who had indicated earlier that he intended making such an application’.

7 On 4 June 2009, the Tribunal handed down its decision in relation to Mr Black’s application under the HRIPA. The Tribunal declined to conduct an inquiry into the question of access to the document under the HRIPA because that issue had already been determined in prior decisions made by the Tribunal under the FOI Act. Nearly three weeks later, Mr Black lodged an appeal against the Tribunal’s 6 November 2008 decision.

Principles for determining whether to grant leave

8 In NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23 at [5] to [8], the President of the Tribunal set out the principles relevant to allowing an appeal out of time:

5 In considering whether to grant leave to appeal out of time, the governing consideration is the interests of justice in the circumstances. Time lines are a usual feature of any organised system of administration, including the administration of justice. The party who secures a positive order at first instance should be able to expect, once the appeal period has passed, that the order is now final and not contestable. Sometimes there may be good reasons why the unsuccessful party did not file an appeal in time, and now seeks leave to have the appeal accepted out of time.

6 The party seeking leave should have a cogent explanation for failing to meet the time lines. If there is a cogent explanation, it is necessary to consider the prejudice that might be suffered by the successful party in reopening the matter. If the successful party has taken steps based on the decision, it may well be that it would be unfair on that basis alone to reopen the decision. Further, there is the issue of whether allowing the appeal to proceed would waste the (limited) resources of the Tribunal and be burdensome to the respondent because the appeal grounds are so weak that there are little or no prospects of the appeal being successful.

7 These considerations are well known. There are many Tribunal cases setting out the considerations seen as relevant to the exercise of the discretion to grant leave to appeal. An early instance is Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [6] where the following considerations are listed,

- The reason for the failure to lodge the appeal.
- The length of the delay in lodging the appeal.
- The diligence shown by the appellant in lodging the appeal after it came to his notice that were circumstances justifying an appeal.
- The nature of the decision below and the consequences of the decision upon the appellant’s rights.
- The adequacy of the information conveyed to the appellant at the time the decision was notified to him or her, both as to the reasons for decision and of the appellant’s entitlement to appeal.
- The extent of the appellant’s knowledge of the relevant statutory provisions.
- The possible prejudice to the respondent to the appeal.

The reason for the failure to lodge the appeal

9 Mr Black initially decided to appeal against the Tribunal’s decision and then changed his mind apparently because he anticipated that he would obtain the document if he applied under the HRIPA. When he was unsuccessful, he changed his mind again and decided to appeal against the 6 November 2008 decision. Neither the Tribunal nor the Health Service misled Mr Black about his rights under the HRIPA.

The length of the delay in lodging the appeal

10 The length of the delay is approximately six months. In circumstances where the general rule is that an appeal is to be filed within 28 days after the Tribunal gives the party written reasons for the appealable decision, six months represents a considerable delay.

Diligence in lodging the appeal after becoming aware that an appeal was justified

11 There is no dispute that Mr Black knew he had 28 days to lodge an appeal or that he decided shortly after that period that he would not appeal.

The nature of the decision and its consequences

12 The Tribunal’s decision related to a form entitled “Mental health –Triage Module”. Mr Black told the Tribunal that he knows the person who provided the information contained in the triage form but he wants access to the rest of the exempted material in the report. His reason is that he says that the information about him in the triage form is false. Mr Black asserts that the person who created the report should not have done so without speaking to him in person and verifying the content of the report.

Strength of the grounds of appeal

13 Mr Black’s grounds of appeal were that:

a) the Tribunal erred when it stated that the Health Service was not relying on clause 4(1)(c) of Schedule 1 to the FOI Act even though the agency had relied on that clause in the internal review decision;

b) the Tribunal Member failed to cite or research cases which supported his application even though he said he would do so at the hearing and that, as a self-represented party, he was disadvantaged;

c) the Tribunal continually placed more importance on points of law and minor sections of exemptions rather than on his legal rights and the objects of the ADT Act ;

d) the Tribunal denied him the ability to cross examine Ms Dianne Sales, the internal reviewer, yet referred to and used the contents of the internal review in the decision;

e) Dr Arya’s evidence was not reliable because he had not seen nor did he have a copy of the actual triage module;

f) the Tribunal erred by failing to allow him to refer to provisions of the HRIPA ;

g)the Tribunal’s decision was made without any valid evidence being put forward by the Health Service to support its claims.

14 In relation to the first ground, as the burden is on the Health Service to establish that the determination is justified, it may add or remove any grounds for the determination subject to the rules of procedural fairness: FOI Act, s 61; ADT Act, s 73(2). The withdrawal of any ground for the determination does not necessarily have to be in writing: NZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 at [13]. The fourth ground of appeal is related to the first ground. It is correct that the Tribunal set out parts of the internal review decision relating to cl 4(1)(c) in its decision. The only reason for doing so was to provide the factual background to the Tribunal’s decision not to issue two summonses to give evidence. The stated reason for the request to issue those summonses was to refute the basis on which the Health Service relied on the cl 4 exemption in the internal review decision. As the Health Service was no longer relying on that exemption, the Tribunal refused Mr Black’s application. Similarly, as the exemption in cl 4(1)(c) was not an issue, Ms Sales’ evidence about what she wrote in the internal review decision in relation to that exemption was not relevant.

15 The second ground of appeal relates to the obligations the Tribunal has to self-represented parties. The Tribunal has a duty to provide procedural, evidentiary and substantive information about matters such as the Tribunal’s role, the order of proceedings and the rights and responsibilities of parties. This includes explaining to a self-represented party what needs to be proved. That was not necessary in this case because the burden of establishing that the determination is justified was on the Health Service: FOI Act, s 61. The Tribunal should also ensure that a self-represented party is not disadvantaged because of ignorance of relevant and persuasive authorities which support their application. I am not aware of any such authority that the Tribunal failed to bring to Mr Black’s attention.

16 In relation to the third ground of appeal, it is correct that the Tribunal ‘is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’: ADT Act, s 73(3). In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 at [34] and [35] Gummow J considered the equivalent provision of the Migration Act 1958 in the context of an appeal from a decision of the Refugee Review Tribunal. His Honour decided that that provision “does not delimit boundaries of jurisdiction”. In other words, s 73(3) does not permit the Tribunal to depart from the relevant substantive law when determining a dispute: Rees N, Procedure and evidence in ‘court substitute’ tribunals’ (2006) 28 Australian Bar Review pp 59 –69.)

17 The fifth ground of appeal was that Dr Arya’s evidence was not reliable because he had not seen nor did he have a copy of the actual triage module. Dr Arya is the Director of Mental Health for the Health Service. He gave evidence about the procedures followed by the Health Service and the purpose of the triage form in general. If he had not seen the disputed document, that does not affect the relevance or reliability of his evidence about the procedures that are generally followed and the purpose of triage forms.

18 In relation to the sixth ground of appeal, the Tribunal correctly declined to refer to the provisions of the HRIPA when considering whether the document was exempt under the FOI Act. The provisions of the HRIPA are not relevant to the proper interpretation of the FOI Act.

19 The assertion that there was no evidence to support the Health Service’s case is incorrect. The Tribunal found the evidence of Dr Arya persuasive at [28]-[29].

Prejudice to the respondent

20 The Health Service submitted that it would be prejudiced if the appeal was accepted out of time because it would have to respond to the appeal. According to the Health Service, it was entitled to presume the proceedings were at an end because of the letter Mr Black wrote on 14 December 2008 saying that he would not be appealing against the decision.

Conclusion

21 Mr Black decided not to appeal against the Tribunal’s decision. It was only when a second application under different legislation was unsuccessful that he lodged an appeal. The appeal was lodged 6 months out time. In addition, the appeal grounds are so weak that there is little or no prospect of his appeal being successful. In all the circumstances, the application by Mr Black to lodge an appeal out of time is refused.