Black v Hunter New England Health Service

[2010] NSWSC 1252

CITATION:	Black v Hunter New England Health Service [2010] NSWSC 1252
HEARING DATE(S):	27 October 2010
JUDGMENT DATE :	3 November 2010
JUDGMENT OF:	R A Hulme J
DECISION:	Proceedings are dismissed. Plaintiff to pay the first defendant's costs.
CATCHWORDS:	ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) - no statutory right of appeal to Supreme Court in circumstances where the matter has not been determined by Appeal Panel - ADMINISTRATIVE LAW - judicial review - whether review should be undertaken in light of balancing considerations contained in s 123 of the Administrative Decisions Tribunal Act 1997
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 Freedom of Information Act 1989 Health Records and Infomation Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules 1998 Administrative Decisions Tribunal Regulation 2009
CASES CITED:	Avery v State of New South Wales (Attorney General's Department) [2009] NSWSC 353 Ballam v Higgins (1986) 17 IR 131 Black v Commissioner of Police, NSW Police Force [2008] NSWADTAP 80 Black v Hunter New England Area Health Service [2008] NSWADT 301 Black v NSW Police Force [2008] NSWADT 177 Boral Gas (NSW) Pty Ltd v Magill & Anor (1993) 32 NSWLR 501 LB v Hunter New England Area Health Service (No 2) [2009] NSWADT 132 LB v Hunter New England Area Health Service [2010] NSWADT 82 Mishra v University of Technology, Sydney [1999] NSWSC 1324 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales & ors [2001] NSWSC 494; 53 NSWLR 559 Sullivan v ADT [2000] NSWSC 386
PARTIES:	Phillip Ross Black (Plaintiff) Hunter New England Area Health Service (First defendant) Administrative Decisions Tribunal (Second defendant)
FILE NUMBER(S):	SC 2010/234901
COUNSEL:	Plaintiff in person Ms J Davidson (Solicitor) for the first defendant
SOLICITORS:	Crown Solicitor's Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

R A Hulme J

3 November 2010

2010/234901 Phillip Ross BLACK v Hunter New England Health Service

JUDGMENT

1 HIS HONOUR: On 14 July 2010 the plaintiff filed in this Court a summons commencing an appeal.

2 Within the summons, the proceedings in the Court below are described by reference to the Administrative Decisions Tribunal and hearings that had been conducted there before Deputy President Handley on 26 May 2009 and before Judicial Member Higgins on 11 September 2009. Reference is also made to decisions given in respect of those hearings on 4 June 2009 and 31 March 2010 respectively.

3 The document records that the type of claim is, “appeal claim” and provides details of the appeal as being, “the plaintiff appeals from the whole of the decision below”. The orders sought are set out as follows:

1 Decision set aside and matter re heard by ADT

2 Appeal allowed

3 #Judgment #Order of the court below be set aside

4 Set aside all decisions re general file No 093058. Order new hearing of complete matter and application

4 The grounds of appeal are specified as followed:

1 Member Higgins did not conduct hearing 11/9/09 as per directions of Member Handley as stated in his decision 4.6.09. (original)

5 The first defendant has filed a notice of motion seeking dismissal of the proceedings pursuant to Uniform Civil Procedure Rules 2005 r13.4(1)(b) or (c), or alternatively, that the plaintiff’s summons be struck out pursuant to UCPR r14.28(1)(a) (b) or (c).

6 At the hearing of the motion on 27 October 2010 the plaintiff appeared in person. The first defendant was represented by Ms Davidson of the Crown Solicitor’s Office. The second defendant filed a submitting appearance.

History of proceedings

7 Before going to the merits of the motion it is appropriate to set out something of the history of the proceedings that may serve to explain why the plaintiff is seeking relief in this Court.

8 Certain events occurred in December 2005 which gave rise to the creation of two documents pertaining to the plaintiff’s mental health. He has since sought to gain access to those documents. It is unnecessary for the purpose of the present application to explore the detail of those events in which the documents came into existence. Suffice to say that the plaintiff has pursued his quest to gain access to them in a number of proceedings taken in the Administrative Decisions Tribunal (“the Tribunal”).

9 On 19 June 2008 Judicial Member Wilson, upon a review of a determination made by the New South Wales Police Force under the Freedom of Information Act 1989, refused to grant the plaintiff access to one of the documents: Black v NSW Police Force [2008] NSWADT 177. On 6 November 2008 Deputy President Handley, following a similar review of a Freedom of Information Act decision, but on this occasion by the Hunter New England Area Health Service (“the Area Health Service”), in effect, refused to grant the plaintiff access: Black v Hunter New England Area Health Service [2008] NSWADT 301.

10 The plaintiff appealed against the decision of Judicial Member Wilson to the ADT Appeal Panel. The appeal was dismissed on 8 December 2008: Black v Commissioner of Police, NSW Police Force [2008] NSWADTAP 80.

11 The plaintiff then made an application to the Area Health Service under the Health Records and Information Privacy Act 2002 for access to the two documents. That application was refused. The plaintiff sought an internal review within the Area Health Service of that refusal but it was also determined adversely to him. The plaintiff then sought a review of these decisions in the Tribunal. The matter was heard by Deputy President Handley on 26 May 2009.

12 A decision was handed down on 4 June 2009 in which it was determined that the application by the respondent (the Area Health Service) to dismiss the proceedings as being frivolous, vexatious, misconceived or lacking in substance should be dismissed. However, the Tribunal declined to conduct an enquiry into the question of the plaintiff being granted access to the two documents on the basis that this had already been determined in prior decisions of the Tribunal under the Freedom of Information Act: LB v Hunter New England Area Health Service (No 2) [2009] NSWADT 132. It was acknowledged within that judgment that the determination of Deputy President Handley did not prevent the plaintiff from pursuing his application relating to the accuracy of the health information in the two documents and how that information was used. The judgment concludes with reference to the necessity to conduct a directions hearing with a view to progressing that part of the plaintiff’s application.

13 The matter next came before Judicial Member Higgins who conducted a hearing on 11 September 2009 and gave judgment on 31 March 2010: LB v Hunter New England Area Health Service [2010] NSWADT 82. She concluded (at [41]) that the Area Health Service had not contravened relevant health privacy principles that were binding upon it and so ordered pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 that the Tribunal would take no action in the matter.

A proposed appeal to the Appeal Panel

14 The internal review by the Area Health Service was a “reviewable decision” pursuant to which the Tribunal had jurisdiction to review: s 8 Administrative Decisions Tribunal Act 1997 (“ADT Act”). The determination by Judicial Member Higgins is an appealable decision of the Tribunal: s 112 ADT Act. Section 113 of the ADT Act thus provides a right of appeal to the Appeal Panel of the Tribunal. Such an appeal may be made on any question of law and, with leave, may extend to a review of the merits: s 113(2). Other provisions presently relevant are those in s 113(3) (appeal must be made with 28 days or within such further time as the Appeal Panel may allow) and s 113(4) (appeal is to be made in the manner prescribed by the ADT rules).

15 Rule 39 of the Administrative Decisions Tribunal Rules 1998 includes that, for the purposes of s 113(4) of the ADT Act, an appeal may be made by lodging a notice of appeal with the Tribunal accompanied by the applicable fee for the lodgement of the appeal. Fees are prescribed under the Administrative Decisions Tribunal Regulation 2009 and the fee prevailing up until recently was $280 (see clause 8 and schedule 1 of ADT Regulation).

16 On 21 April 2010 the plaintiff wrote to the Registrar of the Tribunal seeking an extension of time in which to appeal from the decision of Judicial Member Higgins of 31 March 2010. He advanced various reasons for this request including that he had applied for a copy of the recording of the hearing before the Tribunal.

17 The application for the duplicate recording is among the material tendered to the Court by the plaintiff and it is apparent that included in the application was a request that the relevant fee be waived due to financial hardship. On 28 April 2010 the Registrar wrote to the plaintiff advising that the application to waive the fee had been refused. By letter of 5 May 2010 the plaintiff challenged that decision and provided some further information to support his claim to impecuniosity. In response to that the Registrar replied on 10 May 2010 to the effect that there was no provision for a review of the Registrar’s decision to waive or refuse to waive a fee.

18 Meanwhile, on 7 May 2010 the plaintiff forwarded to the Registrar a notice of appeal in respect of the decision of Judicial Member Higgins of 31 March 2010. He also applied for a waiver of the filing fee for the notice of appeal. However on 14 May 2010 the Registrar replied that the application to waive the fee for the appeal had been refused. The notices of appeal were returned to the plaintiff. Further correspondence in relation to that issue was exchanged between the plaintiff and the Registrar but for present purposes it is unnecessary to refer to it in any detail.

No appeal lies to this Court

19 The first basis upon which the first defendant challenges the purported appeal by the plaintiff is that it is an abuse of process in the sense that it has no prospects of success, or to put it another way, it is foredoomed to fail. Attention was invited to Chapter 7 of the ADT Act which deals with the subject of appeals. Part 2 (sections 119 – 121) deals with appeals to the Supreme Court but only in respect of proceedings before the ADT Appeal Panel. There is no provision within Part 7, or elsewhere in the ADT Act for an appeal to this Court from a decision of the Tribunal. Accordingly the submission of the first defendant is, in short, that as there is no right of appeal the proceedings brought by the plaintiff must certainly fail.

20 During the course of oral submissions it was plainly difficult for the plaintiff to come to grips with the fundamental hurdle to the proceedings that he has brought. He argued at some length and, it must be said, with considerable passion and vigour, about the injustice that he feels that he has suffered. He implored the Court to “help” him. Regrettably however, I was unable to discern any relevant response by the plaintiff that had any real merit in relation to the first defendant’s primary contention.

Application for judicial review?

21 Out of fairness to the plaintiff, particularly as he appeared as a litigant in person, Ms Davidson also dealt in her submissions with the possibility that the originating process might be construed as an application to this Court in its original jurisdiction for a review of the decision of the Tribunal. It is clear that if the purpose of bringing proceedings in this Court by the plaintiff was to seek judicial review then the originating process would require considerable amendment and repleading. Identification of errors of law would appear to be problematic for the plaintiff in that respect. For the moment, however, that is an issue that can be put to one side.

22 Part 3 of Chapter 7 of the ADT Act, according to its title, deals with the “Inter-relationship between Supreme Court and Tribunal”. The Act does not provide any bar to proceedings being brought for judicial review of Tribunal decisions. Indeed, s 122 provides:

122 Nothing in this Act (except section 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal.

23 It is necessary, however, to note the relevant provisions of s 123:

(1) The Supreme Court may:

(a) refuse to grant an application for the review of an original decision of the Tribunal if it is satisfied that, in all the circumstances, adequate provision is made under this Act for the applicant to seek an alternative review of the decision, or

…

(2) In deciding whether to refuse an application for review (and without limiting the generality of subsection (1)), the Supreme Court may take into account any one or more of the following matters:

(a) if the applicant has not yet applied for an alternative review of the decision concerned – whether the applicant would be eligible to apply for an alternative review,
(b) whether an alternative reviewer is likely to deal with the matter more expeditiously and cheaply than the Court,
(c) whether a favourable determination of the application by the Court would be likely to resolve the issues in dispute,
(d) whether the alternative reviewer would be able to give the applicant an appropriate remedy,
(e) whether the applicant would suffer any substantial hardship if the application were refused,

(f) any other matter it considers relevant.

…

24 It was submitted on behalf of the first defendant that even if the plaintiff’s purpose of bringing the proceedings in this Court was to seek judicial review, the Court should refuse to entertain it because there is available to the plaintiff adequate provision under the ADT Act to seek an alternative review of the decision of Judicial Member Higgins.

25 In relation to the factor in s 123(2)(a) it is clearly the case that the plaintiff is eligible to apply for an alternative review, by way of appeal to the Appeal Panel, although he would also need to apply for an extension of time and have to either pay the filing fee or successfully persuade the Registrar to waive it. In relation to the extension of time it is difficult to foresee that that would necessarily be a hurdle to the plaintiff for similar reasons to those expressed by Barrett J in NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales & ors [2001] NSWSC 494; 53 NSWLR 559 at [39].

26 In relation to the filing fee, it could either be paid, or a fresh application made to the Registrar for waiver. The fact that the plaintiff has had an application to waive the filing fee refused in the past should not necessarily mean that he will be refused any such application that he will make in the future. I note also that in the Tribunal’s “Guidelines for the Waiver of Fees” it is said that “applications will generally be granted where [inter alia] the applicant is dependent on social security payments and lacks sufficient income and capital to either pay a fee or to obtain credit on reasonable terms to pay a fee”. The material placed before me suggests that the plaintiff would meet such a description but it is a matter for him to persuade the Registrar, with a sufficiently documented application, of that fact.

27 In relation to the matters in s 123(2)(b), (c) and (d), a very persuasive submission was made on behalf of the first defendant that if the matter was to be determined by this Court by way of judicial review, the remedy available would be limited to sending the matter back to the Tribunal for rehearing. This is in stark contrast to the powers of the Appeal Panel in dealing with the matter where there would be the ability to deal, potentially, with the entire dispute and to make appropriate orders that would resolve all issues in the proceedings: see ss 114 and 115. Whilst no evidence was placed before me as to the relative time and cost involved in seeking judicial review in this Court as opposed to an appeal to the Appeal Panel, it would seem unlikely that there would be any significant difference.

28 In relation to the hardship issue raised in s 123(2)(e), the only matter raised by the plaintiff was the various adverse impacts upon his life that had been occasioned as a consequence of the errors in the two documents that are at the heart of the proceedings. The hardship with which s 123(2)(e) is concerned, to my mind, is more directed to hardship that an applicant for judicial review might experience if the Court were to refuse to entertain such an application. On the materials before me, it does not seem that there is any difference in any hardship that the plaintiff would experience whether the matter is dealt with by this Court or by the Appeal Panel.

29 The only other matter raised by the plaintiff for consideration in relation to s 123 related to the issue of the Registrar refusing his application to waive the filing fee for his appeal. I have already made some comments on this issue. The only matter I would add is that it would be an unusual situation, to say the least, if this Court was prepared to entertain an application for judicial review, in a case in which a plaintiff had available to him or her an appeal to the Appeal Panel, only upon the basis that the plaintiff could not afford to pay the filing fee and the Registrar of the Tribunal was not prepared to waive it.

30 Ms Davidson, with commendable fairness, drew my attention to some cases in which this Court has determined to entertain an application for judicial review notwithstanding the availability of alternative resolution of the matter. Each of the cases are, however, distinguishable from the present.

31 In Mishra v University of Technology, Sydney [1999] NSWSC 1324, Kirby J concluded that in the circumstances pertaining to that case there would be an injustice if he were to dispose of the proceedings before him upon the basis that the plaintiff should first have gone to the Appeal Panel. The circumstances were, first, that the unrepresented plaintiff had been misled by an officer of the Court into thinking that he should bring proceedings in this Court; secondly, Kirby J had found it necessary to acquaint himself with all of the facts and so was in a better position to proceed to deal with the substantive case than would ordinarily be so; and thirdly, his Honour was concerned about the time that had elapsed, there having been some 14 months between the relevant decision of the Tribunal and the conclusion of the hearing in this Court and 16 months until judgment.

32 Whilst there are some similarities with the present case, particularly in relation to the plaintiff being unrepresented, the significant difference is that because of the limited nature of the issues that I have been called upon to determine it has not been necessary, let alone possible, for me to explore the detail of the merits of the plaintiff’s substantive case.

33 There were also circumstances in Sullivan v ADT [2000] NSWSC 386 that compelled Windeyer J to the conclusion that he should proceed to deal with the matter. The most significant appears to have been that his Honour had become part-heard in the matter by virtue of having made an interlocutory restraining order, a matter that quite distinguishes that case from the present.

34 Those two cases can be contrasted to NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales & ors, above, and Avery v State of New South Wales (Attorney General’s Department) [2009] NSWSC 353 in which Barrett J and Schmidt AJ (as her Honour then was) respectively declined to entertain applications for judicial review upon the basis that the plaintiffs had recourse to the Appeal Panel available to them.

35 All of these decisions serve to confirm that the decision as to whether this Court will entertain an application for judicial review in circumstances where the plaintiff has available an alternative remedy, particularly one within a statutory scheme such as provided by the ADT Act, is discretionary. Nevertheless, the “normal” approach was described by Kirby P in Ballam v Higgins (1986) 17 IR 131 at 132 as follows:

Where a provision is made by Parliament for an internal appeals system in a specialised tribunal and where an internal appeal permits the agitation and determination of the questions of jurisdiction, I am of the view that normally this Court should, in the first instance, leave it to those internal processes to correct a suggested error of jurisdiction before offering prerogative relief.

36 See also Boral Gas (NSW) Pty Ltd v Magill & Anor (1993) 32 NSWLR 501.

Conclusion

37 The plaintiff quite clearly feels aggrieved about the decision of Judicial Member Higgins of 31 March 2010. He also feels aggrieved about the manner in which the hearing was conducted before her on 11 September 2009. He sought to argue his grievances at some length at the hearing of the motion on 27 October 2010. On two occasions he sent further documents and submissions which he felt supported his argument after judgment had been reserved. The matters he raised, both at and after the hearing, were in the main, irrelevant to the issues that were before the Court.

38 The only matter that is relevant is that the plaintiff disagrees with the decision of the Tribunal and wishes to challenge it. The only issue before this Court is the appropriate forum in which he should make that challenge.

39 I have spent some time considering the alternative view of the proceedings and have concluded that even if they could be characterised as an application to the Court in its original jurisdiction for judicial review, and that the initiating process and pleadings could be amended and expanded to appropriately reflect that fact, a seemingly dubious proposition at best, the Court should refuse to entertain such an application whilst there is available to the plaintiff a means of challenging the decision of the Tribunal in the ADT Appeal Panel.

40 However, the reality is that the proceedings are on their face an appeal. For the reasons given earlier, no appeal lies to this Court from a decision of the Tribunal and in that sense, the proceedings, being foredoomed to fail, are an abuse of process. They should be dismissed pursuant to UCPR r13.4.

Orders

The proceedings are dismissed.

The plaintiff is to pay the first defendant’s costs.

**********