C v Secretary, NSW Treasury (No 3)

[2003] NSWADT 200

Set aside by Appeal: Appeal allowed in part on 20 February 2004.

CITATION:	C v Secretary, NSW Treasury (No 3) [2003] NSWADT 200
DIVISION:	General Division
PARTIES:	APPLICANT C RESPONDENT Secretary, NSW Treasury
FILE NUMBER:	013081
HEARING DATES:	15/02/2003
SUBMISSIONS CLOSED:	05/02/2003
DATE OF DECISION:	08/25/2003
BEFORE:
APPLICATION:	amendment of documents - Freedom of Information Act - amendment of documents
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Workers Compensation Act 1987
CASES CITED:	Joseph Crosfield & Sons Ltd v Techno-Chemical Laboratories Ltd (1913) 29 TLR 378 Crewdson v Central Sydney AHS [2002] NSWCA 345 Re Resch (1986) 9 ALD 380 Re Gordon (1991) 25 ALD 335 Close and Australian National University (1993) 31 ALD 597 Cox and Dept of Defence (1990) 20 ALD 499 Botany Council v The Ombudsman (1995) 37 NSWLR 357 Director General Department of Community Services v S [2000] NSWADTAP 27 RR v Department of the Army 482 F Supp 770 (1980) Central Sydney Area Health Service v Crewdson (GD) [2001] NSWADTAP 44 Re Applicant and Department of Education and Training, Children's Youth and Family Services (1998) 53 ALD 509 Re Corbett and Australian Federal Police (1986) 5 AAR 291 Hope v Bathurst City Council (1980) 144 CLR 1 Re Leverett (1985) 8 ALN N135 Re Warren and Department of Defence (unreported AAT, 22 December 1992) Hayward Brown v Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, counsel
ORDERS:	1. The agency’s decision to refuse to amend the undated report of Dr Y Lucire in relation to the applicant is set aside.; 2. In substitution for that decision a decision is made to attach a notation to the report, and every copy of the report held by the agency, in the following terms:; “The attached document is incorrect in a material respect pursuant to the Freedom of Information Act 1989. In particular Dr Lucire’s diagnosis that Mr C (insert full name) has a Narcissistic Personality Disorder and a Paranoid Delusional Disorder is incorrect. For further details, see the decision of the Administrative Decisions Tribunal in C-v-Secretary, NSW Treasury (No 3) [2003] NSWADT 200. ; 3. If Mr C wishes to make an application for costs, he should do so within 28 days of the date of this decision.; 4. If such an application is made, the agency is directed to file and serve any submissions in reply within 28 days of being served with the application.; 5. Any application for costs will be determined by the Tribunal “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION

Introduction

1 On 11 April 2001, the applicant (who I will refer to in these reasons as Mr C to protect his privacy) applied to the Tribunal for a review of a decision made by the Secretary, NSW Treasury (the agency). The decision was to refuse to amend a medical report pursuant to s 44 of the Freedom of Information Act 1989 (FOI Act). Dr Yolande Lucire produced the medical report after a psychiatric consultation with Mr C on 6 January 2000 in relation to a workers compensation claim. The report concluded that:

Mr C, on clinical examination, seemed to have a Paranoid Delusional Disorder. On the documents it is more like Narcissistic Personality Disorder. He also has compulsive traits.
2 Mr C maintains that this diagnosis is incorrect and set out his preference as to the manner in which the record should be amended.

Background

3 Mr C is a married man in his mid 50s. His wife assisted him with his application before the Tribunal. Mr C joined the Department of Corrective Services as a Clerk Grade 9/10 (Regional Finance Administration Manager) in 1991. In 1992, he was successful in a claim for workers compensation based on stress. In 1996, the regional office in which he was employed was closed and he became a “displaced person.” He was transferred to another office and given project work which he found unsatisfactory. When that position finished, he was transferred again, but he says there was insufficient work for him to do. In May 1997 Mr C began looking for a suitable position outside the Department of Corrective Services but within the public sector. He did not find a suitable position.

4 In August 1997 Mr C applied for voluntary redundancy. In September 1997 Mr C was registered with the Workforce Management Centre (WMC) for redeployment to another government agency. He attended several job interviews but was not offered a position. In November 1998, after unsuccessful negotiations with the Department of Corrective Services in relation to voluntary redundancy and compensation, Mr C forwarded a medical certificate pursuant to the Workers Compensation Act 1987. On 22 December 1998, following further negotiations over a redundancy package, Mr C lodged a workers compensation claim stating that he has suffered “two years of systemic harassment”.

5 In support of his workers compensation claim Mr C lodged a medical report dated 15 December 1998 by his treating psychiatrist, Dr Howard Napper. In that report Dr Napper stated that Mr C suffered from an adjustment disorder, depression and anxiety.

6 The NSW Treasury Managed Fund (TMF) which manages the insurance risks of most government agencies is vested in the NSW Insurance Ministerial Corporation. Legislation provides that the affairs of the corporation are to be managed by the Treasurer. The Treasurer operates through Treasury officials, with the day-to-day management of the Treasury Managed Fund being outsourced to GIO General Ltd (GIO).

7 On 6 January 2000 Mr C attended a clinical psychiatric consultation with Dr Yolande Lucire. The letter from the GIO requesting the report, dated 15 December 1999, says, in part, “Would you please take a complete history and indicate whether the claimant is suffering from a diagnosable psychiatric condition due to work. If you feel the condition has substantially arisen out of work, would you indicate whether it has arisen as a result of any unreasonable action by the employer. Would you assess fitness for either normal or restricted duties and offer a prognosis for return to normal duties. Would you also assess current treatment and its appropriateness.”

8 The letter requesting the report asked for Dr Lucire to determine the reasonableness of the employer’s conduct. That request comes from the terms of s 11A of the Workers Compensation Act 1987 which states that:

No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. (Emphasis added.)
9 (I put to one side the obvious question as to whether Dr Lucire was being asked to decide the ultimate factual issue in dispute. See Joseph Crosfield & Sons Ltd v Techno-Chemical Laboratories Ltd (1913) 29 TLR 378 at 379.) Following that consultation, Dr Lucire prepared a report and forwarded it to the GIO. The agency gave Mr C access to the report under the FOI Act. By letter of 26 February 2001, Mr C wrote to the agency seeking an amendment of the report.

Relevant legislative provisions

10 Section 39 of the FOI Act sets out the requirements for an application to amend a document:

A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:

(a) if the document contains information concerning the person’s personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.

11 The report contains information concerning Mr C’s personal affairs, that information is available for use by the agency in connection with its administrative functions, and, in the applicant’s opinion, it is incomplete, incorrect, out of date or misleading.

12 Section 43(1) of the FOI Act sets out the manner in which an agency must determine an amendment application:

An agency shall determine an application:

(a) by amending its records in accordance with the application, or

(b) by refusing to amend its records.

13 Section 44 provides that:
An agency may refuse to amend its records in accordance with an application:

(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or

(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or

(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.

14 The agency refused to amend the report as requested by Mr C but added a notation pursuant to s 46(2) of the FOI Act. Section 46(1) and (2) state that:
(1)If an agency has refused to amend its records, the applicant may, by notice in writing lodged at an office of the agency, require the agency to add to those records a notation:

(a) specifying the respects in which the applicant claims the records to be incomplete, incorrect, out of date or misleading, and

(b) if the applicant claims the records to be incomplete or out of date setting out such information as the applicant claims is necessary to complete the records or to bring them up to date.

(2) An agency shall comply with the requirements of a notice lodged under this section and shall cause written notice of the nature of the notation to be given to the applicant.

15 The notation was in accordance with the request in Mr C’s letter of 9 April 2001.

Agency’s records

16 The agency raised a preliminary jurisdictional issue. That issue was that the amendment provisions in Part 4 of the FOI Act do not apply to Dr Lucire’s report because while that document is a document “held by the agency” it is not part of the agency’s records. Section 39 of the FOI Act allows a person to seek amendment of “the agency’s records”, not of any document held by the agency.

17 According to the agency, there is a question whether the right to seek amendment applies to a document which is provided to an agency by an external consultant or contractor. Such a document is a document held by the agency but may not become a record of the agency since it is not created by the agency. On that basis, the agency submitted that Dr Lucire’s report is not a record of the agency subject to the provisions of Part 4 of the FOI Act.

18 Mr C submitted that one of the objects of the FOI Act is to extend, as far as possible, the rights of the public “to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.” The terms “records” and “agency’s records” are not defined in the FOI Act, therefore, according to Mr C, the ordinary meaning of those words should be applied. The Concise Macquarie Dictionary defines “record” relevantly as “information or knowledge preserved in writing or the like.” Relying on that definition Mr C submitted that the information contained in Dr Lucire’s report is a record. It forms part of the agency’s records whether the agency created it or not.

19 I agree with Mr C’s submission. A careful reading of s 39 reveals that the amendment application can only relate to an agency’s document to which a person has been granted access. The legislation does not contemplate two separate classes of information, namely documents and records. Reference to the “agency’s records” is merely a way of describing the information in the agency’s documents. The objects and purpose of the legislation would be severely inhibited if the agency’s submission were accepted.

Legal principles in relation to amendment of records

20 On 26 November 2002, the Court of Appeal handed down a decision, Crewdson v Central Sydney AHS [2002] NSWCA 345, which interpreted the amendment provisions of the FOI Act. The case involved an appeal by a former public servant from a decision of the Appeal Panel of this Tribunal refusing to amend a medical report. At [32], the Court of Appeal noted that the respondent has the burden under s 61 of the FOI Act of establishing that its determination, refusing to amend its records, was justified. At [19] and [34]- [37] Handley JA (with whom Ipp JA and Davies AJA agreed) set out the relevant principles to be applied in amendment cases:

The alleged unfairness in the procedures which led to the appellant’s psychiatric examination and in the course of that examination, including the alleged bias of Dr Roberts, do not raise issues directed to the accuracy of the statement. One cannot establish that a medical opinion is “incorrect ... or misleading” by establishing that the procedures followed were legally flawed or the doctor was biased. The opinion may still be correct.

. . .

Even if the Tribunal accepted other experts who had a different opinion that would not make “incorrect”, for the purposes of s 39(c), an accurate statement of the opinion held by Drs Roberts and Jagger. See Re Resch (1986) 9 ALD 380, 389 (Hall DP); Re Gordon (1991) 25 ALD 33; and Re Close and Australian National University (1993) 31 ALD 597, 609-10. The Act is not a vehicle for the determination of disputed questions of expert or other opinion when the recorded opinion was actually held and accurately entered in the official records.

The position might be different if an expert whose opinion had been accurately recorded recognised later that it was incorrect at the time and withdrew it. However the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion. See Cox and Dept of Defence (1990) 20 ALD 499, 500, 501 (Todd DP). An amendment in the latter form would falsify the records and attempt to rewrite history. See Botany Council v The Ombudsman (1995) 37 NSWLR 357, 369 and Re Close (1993) 31 ALD 597, 609. Without the original opinion the records would not tell the whole story, and would be misleading.

Some decisions support the view that an accurate statement of an opinion, expert or otherwise, that was genuinely held could be incorrect or misleading for present purposes if it was based solely or perhaps substantially on information which was shown to be incorrect. See Director General Department of Community Services v S [2000] NSWADTAP 27 which was referred to in the decision of the Appeal Panel in the present case. Compare RR v Department of the Army 482 F. Supp 770 (1980), 774, 775.

It is not necessary to consider these questions because it was not established that the opinion was based solely or substantially on information shown to be incorrect.

Application of legal principles

21 Summary of principles. Notwithstanding Mr C’s submissions to the contrary, this Tribunal is bound by the legal principles which can be derived from the Court of Appeal’s decision. The Court of Appeal did not answer the question as to whether an opinion based solely or substantially on information shown to be incorrect was itself incorrect. However two principles which can be derived from the decision are as follows:

· proving that the author of a report was biased does not necessarily establish that the medical opinion was incorrect or misleading; and

· even if other experts have a different opinion, an opinion is not incorrect as long as it is actually held by the author and accurately stated or recorded in the document.

22 Bias. A finding of bias against Dr Lucire would not necessarily mean that the opinions she has expressed are incorrect. Consequently I have not dealt with Mr C’s submissions in relation to bias.

23 Contrary expert opinions. Dr Napper and others hold different opinions from that held by Dr Lucire. In his report of 3 December 2001, Dr Napper wrote that “I have read Dr Lucire’s report and find nothing in the report to substantiate such a diagnosis. Moreover, in my consultations with your client, I have found no phenomenology or psychiatric symptoms to support either of those diagnoses.” The fact that other experts, including Dr Napper, hold a different opinion is not sufficient, by itself, to justify an amendment.

24 Withdrawal or modification of opinion. The applicant submitted that Dr Lucire modified her expert opinion in oral evidence. She said in the report that Mr C “seemed to have a Paranoid Delusional Disorder” and “on the documents it is more like Narcissistic Personality Disorder. He also has compulsive traits.” Later, in the report, Dr Lucire says that “Mr C genuinely believes that he is not getting what he is entitled to. This attitude is a manifestation of his personality disorder which is primarily narcissistic but occasionally he is paranoid as well.”

25 These and other statements demonstrate that Dr Lucire made a diagnosis of Narcissistic Personality Disorder and Paranoid Delusional Disorder. Dr Lucire modified her diagnosis in her oral evidence. She said in her evidence that:

I’m prepared to say that Mr C has narcissistic personality traits of significant intensity and possibly a personality disorder and I would be quite happy to say that.
26 The following exchange occurred between the agency’s counsel and Dr Lucire:
Q: Your diagnosis of Mr C at the time you examined him is as set out in your report, that he had a paranoid delusional personality or narcissistic personality?

A: No, he has a personality disorder which – well, narcissistic personality traits which are very prominent. I also thought possibly at the time that I saw him or possibly at various times close to the time I saw him he had been frankly paranoid, that is, he was seeing conspiracies and so on, and that is called a paranoid disorder. . .”

27 By answering “No” to this question and by her subsequent explanation and other evidence, I find that Dr Lucire withdrew her diagnosis of a Narcissistic Personality Disorder and Paranoid Delusional Personality Disorder. Her modified position is that Mr C has traits of a Narcissistic Personality Disorder and that it is possible that he has a Paranoid Delusional Personality Disorder. This is so despite the more general statement later in her evidence that she genuinely believed that her diagnosis of the applicant “was a good one”. The effect of Dr Lucire’s withdrawal, or at least modification, of her opinion is dealt with further below.

Factual basis for opinion

28 Summary. The remaining issue is whether an agency’s records are “incomplete, incorrect, out of date or misleading in a material respect” if they are “based solely, or perhaps substantially, on information which is shown to be incorrect.” This is the issue which the Court of Appeal in Crewdson did not need to decide.

29 Appeal Panel’s approach in Crewdson. The Appeal Panel in Central Sydney Area Health Service –v- Crewdson (GD) [2001] NSWADTAP 44 at [47] to [83] considered two approaches to the amendment of records containing expert opinions. The restrictive approach can be summarised as follows: an expert report based solely on discredited facts cannot be allowed to stand. (See RR v Department of the Army (482 F Supp 770 (1980), 774, 775) and Re Resch and Department of Veteran’s Affairs (1986) 9 ALD 380.) The Appeal Panel at [44] preferred a more generous approach which can be summarised as follows: it is sufficient if the factual substratum for the expert opinion is substantially disproved and the Tribunal is persuaded by alternative expert opinion that based on the facts that remain, such an opinion could not be held by any competent expert. The Appeal Panel quoted an ACT Administrative Appeals Tribunal case, Re Applicant and Department of Education and Training, Children’s Youth and Family Services (1998) 53 ALD 509, in support of their preference.

30 Applicant’s submission. It was Mr C’s submission that the Tribunal has the power to review the factual substratum on which Dr Lucire’s opinion was based in order to determine whether that opinion is incomplete, incorrect, out of date or misleading. Mr C submitted that the factual substratum for Dr Lucire’s opinion had been substantially disproved, rather than thoroughly discredited. However, he qualified his submission by saying that he does not believe that he needs to show that all the assertions she makes in her report are factually incorrect. Rather, it was Mr C’s view that it is sufficient for him to show that his perceptions of his treatment by his employer were not abnormal and had some basis in fact.

31 Agency’s submission. The agency’s primary submission was that the only basis on which a professional medical report may be found to be incorrect or misleading within s 44(a) of the FOI Act is in circumstances where the opinion is not genuinely and actually held by the medical practitioner who made the report, or was not accurately entered in the official records.

32 Alternatively, the agency submitted that if it is relevant to inquire into the accuracy of the factual substratum of the opinion, the Tribunal should adopt the so-called “restrictive” approach. The main reasons for this submission were that:

· the test lacks support by Australian authorities and it is inconsistent with RR v Department of the Army 482 F Supp 770 (1980), Re Resch and Department of Veteran’s Affairs (1986) 9 ALD 380; Re Gordon and Department of Social Security (1991) 25 ALD 335 and Re Corbett and Australian Federal Police (1986) 5 AAR 291;

· Re Applicant and Department of Education and Training, Children’s’ Youth and Family Services (1998) 53 ALD 509 concerned a social worker’s report, not a professional medical opinion;

· the Tribunal is not bound by obiter remarks of the Appeal Panel; and

· the tenor or the Court of Appeal’s decision in Crewdson is to reject the “generous” approach.

33 The agency analysed the relevant case law and concluded that there is no Australian case where an amendment or a notation has been made with respect to a professional report made by a medical practitioner. Even if the generous approach is adopted, the agency submitted that the applicant needs to prove that the factual substratum of Dr Lucire’s expert opinion is “substantially disproved” and that there is an alternative expert opinion before the Tribunal that demonstrates that any competent expert, based on the facts that remain, could not hold such an opinion.

34 The agency submitted that, in accordance with statements of Handley JA in Crewdson at [31], a medical report is an implied representation that the maker of the report knows facts which justify the opinion:

A statement of opinion by a skilled person is not only a representation that he holds that opinion, it will also generally be an implied representation that he “knows facts which justify his opinion”. See Smith v Land & House Property Corporation (1884) 28 ChD 7 CA, 15; and Brown v Raphael [1958] Ch 636 CA, 642, 644, 645.
35 Consequently, according to the agency, it is not for the Tribunal to construct the statements of fact which may or may not have been relied upon, so as to allow an application for amendment to be directed at the facts so construed. It is for the applicant to thoroughly discredit any possible factual basis for the opinion and he has not done so.

36 The agency submitted that despite the fact that the Court of Appeal in Crewdson did not determine this issue, the decision provides some guidance as to the proper approach. In particular, because Handley JA characterised the question as being whether the opinion was based “solely or substantially on information shown to be incorrect”, and not a less rigorous test, His Honour can be taken to have rejected the applicability of a less rigorous test. According to the agency, the sole fact on which a report is entirely based, or a substantial part of the factual basis for the report, would have to be destroyed before the relevant opinion could be regarded as incorrect. The agency added that the appropriate test is narrower than that of merits review of the opinion and tantamount to the “no evidence” test of judicial review. (Hope v Bathurst City Council (1980) 144 CLR 1.)

37 Tribunal’s conclusion. I do not accept the agency’s primary submission that the only basis on which a professional medical report may be found to be incorrect or misleading within s 44(a) of the FOI Act is in circumstances where the opinion is not genuinely and actually held by the medical practitioner who made the report, or was not accurately entered in the official records. While there is relatively little case law which has dealt with this issue, there is a general acknowledgement that facts which are non-existent or infected by inaccuracy may render incorrect an opinion based on those facts or assumed facts. (See Re Leverett (1985) 8 ALN N135 at N136; Re Warren and Department of Defence (unreported AAT, 22 December 1992); RR v Department of the Army (482 F Supp 770 (1980).)

38 The fact that there is no Australian case where an amendment or a notation has been made with respect to a professional report made by a medical practitioner does not mean such a possibility is not open under the legislation. Once the factual basis for an opinion has been brought into question, then the question squarely arises as to whether the opinion is correct, regardless of whether the opinion is a medical opinion or not. I do not agree with the agency’s submission that Handley JA in Crewdson provided any guidance on the proper approach to this question. The Court of Appeal did not decide the issue and it is not possible or appropriate to “read into” that decision any preference for a particular approach.

39 Gesell J highlighted the difficulty of identifying the extent to which the factual basis for an opinion must be discredited in RR v Department of the Army (482 F Supp 770 (1980)). As the agency pointed out, this case concerned the interpretation of the United States provisions for amendment of records. The decision has provided guidance to Australian tribunals. Gesell J stated that:

It would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based solely on these assertions must remain unaltered in the individual’s official file. An agency may not refuse a request to revise or expunge prior professional judgments once all the facts underlying such judgments have been thoroughly discredited. [at 774]

Where matters of professional judgment such as this are concerned and the factual predicates of such opinions are diverse, it is next to impossible to reconstruct the process by which the opinion was formulated and determine what the opinion would have been. This difficulty is particularly evident where, as here, the opinion was formulated in good faith and was based on observations made nearly 30 years ago. Under such circumstances the challenged medical judgments are not so thoroughly discredited as to justify their deletion or contradiction in the record. [at 775].

40 The so-called “generous” approach seeks to overcome the difficulty identified in RR v Department of the Army. Where the facts on which an opinion was based can be identified, the process may be able to be satisfactorily reconstructed and a determination made as to what the opinion would have been. This process will not be possible in every case, but the Appeal Panel in Crewdson set out its understanding of this approach at [96]:
. . . where the facts upon which an expert opinion is based have not been substantially disproved, then we agree that the tribunal should not take on the mantle of expert. It should only proceed to interfere with the original expert’s opinion where it is persuaded by alternative expert opinion that based on the facts that remain, such an opinion could not be held by any competent expert.
41 Those who favour the restrictive approach are rightly concerned about the difficulty of reconstructing the factual basis on which expert opinions are formulated. Without evidence from an appropriately qualified expert, it would often not be appropriate to amend an opinion unless it was based solely on factually erroneous assertions. However, if part or all of the factual basis for the opinion is erroneous and the difficulty of reconstructing the factual basis for the opinion is not an issue or is overcome by credible expert evidence, then amendment may be justified. Each case must be considered on its own facts.

42 In my view, on closer examination, the so-called “restrictive” and “generous” tests are not mutually exclusive and both provide a valid starting point for identifying at least two of the circumstances in which an opinion may be incorrect or misleading. My conclusion on the basis of the case law and the above analysis is that an expert opinion may be “incorrect” where either:

· all the facts underlying the opinion have been disproved; or

· some of the facts underlying the opinion have been disproved and either the opinion cannot stand on the basis of the facts that remain or the Tribunal is persuaded by alternative expert opinion that based on the facts that remain, such an opinion could not be held by any competent expert.

43 The agency submitted that a statement of opinion by a skilled person would generally be an implied representation that he or she knows facts which justify the opinion. As a generalisation that statement is undoubtedly correct, but there will be many cases where it is possible to demonstrate that the facts on which the opinion was based are incorrect.

44 The agency implied that the onus is on the applicant to “thoroughly discredit any possible factual basis for the opinion.” In general, the burden of establishing that the determination is justified lies on the agency under s 61. It will be the agency’s task pursuant to s 44, to demonstrate to the Tribunal that it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect. There is no onus on the applicant to “thoroughly discredit any possible factual basis for the opinion.”

Factual basis for the opinion in this case

45 Summary. In order to apply the principles outlined above to the present case, the facts on which Dr Lucire’s opinion was based must be examined. Dr Lucire, Dr Napper, Ms Kay Lord, Executive Director, Human Resources Services, Department of Corrective Services and Ms Janet Pope, Claims Team Leader, GIO Australia Ltd gave oral evidence. Dr Lucire’s report is divided into five sections headed: observations, current situation, 1992 stress claim, diagnosis and opinion respectively. Mr C numbered the paragraphs of Dr Lucire’s report for ease of reference. I adopt this numbering for the purposes of identifying passages in the report.

46 Dr Lucire interpreted the things Mr C said or wrote as the basis for her diagnosis that he had a Paranoid Delusional Disorder and a Narcissistic Personality Disorder. Dr Lucire’s diagnosis is based partly on her belief that Mr C’s perceptions of the way he was treated by his employer were unreasonable, paranoid, exaggerated and narcissistic. Dr Lucire’s diagnosis is also based on certain assumptions about Mr C’s medical history which are capable of being proved or disproved.

47 Some of the conclusions Dr Lucire reached on the basis of what Mr C said or wrote, can be regarded as factual matters which are theoretically capable of being proved or disproved. Other conclusions can be characterised as opinions because they are inferences drawn about the meaning and significance of what Mr C said or wrote. The former category forms part of the substratum of facts on which Dr Lucire’s ultimate opinion is based. The latter does not.

48 Onset of the disorders. Attached to Dr Lucire’s report was the Diagnostic Criteria for 301.81 Narcissistic Personality Disorder. That document was extracted from the Diagnostic and Statistical Manual of Mental Disorders (DSM – IV), 4th edition, published by the American Psychiatric Association, Washington, DC. It defines that disorder, in part, as:

A pervasive pattern of grandiosity (in fantasy or behaviour), lack of empathy, and hypersensitivity to the evaluation of others, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following: (Nine personality traits are then set out. Emphasis added)
49 Dr Lucire did not attach to her report the diagnostic criteria for Paranoid Personality Disorder. However her oral evidence indicates that she was relying on DSM-1V. She gave evidence that grandiose disorder and delusional disorder are both paranoid disorders. The diagnostic features of a Paranoid Personality Disorder according to DSM-1V are as follows:
A pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent, beginning by early adulthood and is present in a variety of contexts as indicated by four (or more) of the following:” (Five personality traits are then set out. Emphasis added.)
50 It is clear from DSM-1V, on which Dr Lucire relied, that an essential feature of the disorder is that it begins by early adulthood. Mr C made the point that if Narcissistic Personality Disorder (and Paranoid Personality Disorder) begin by early adulthood, then Dr Lucire’s diagnosis must be incorrect if she concedes that the first episode of these disorders occurred when he was in his early 50s.

51 Dr Lucire said in evidence that she generally takes a history of issues, full psychiatric examination and a personal, family, social and medical history. None of these matters appear in her report or in the notes she made when conducting the interview. In answer to a question as to whether she was confident that she took a full personal, family, social and medical history, Dr Lucire said “Either I took it or I read it and took it as given but I usually do.” When asked whether there was any medical history of any paranoia prior to her diagnosis, Dr Lucire replied “No, this would have been the first episode.” Dr Lucire conceded that she had only seen symptoms of Narcissistic Personality Disorder in Mr C from 1992, not from early adulthood. She said “I don’t know about early adulthood.” She qualified this by saying that “Often the personality traits have been present but have not given problems before or maybe they’ve given problems and not been seen and maybe have not presented clinically.”

52 I find that Dr Lucire did not take a medical history from Mr C. The other medical reports in evidence found that there was no personal or family history of a psychiatric disorder. Dr Lucire acknowledged that 1992 would have been “the first episode” of any paranoia and that she did not know about early adulthood. In order to make a diagnosis of Narcissistic Personality Disorder or Paranoid Personality Disorder based on DSM-1V, Dr Lucire must have found (or assumed) that the disorders began in early adulthood. The evidence supports a finding to the contrary, that there were no symptoms of the disorders in early adulthood. There is no evidence whatsoever which supports Dr Lucire’s finding or assumption and I find that it is incorrect.

53 Grandiose sense of self-importance. One of the personality traits for Narcissistic Personality Disorder in DSM-IV is: “has a grandiose sense of self-importance eg exaggerates achievements and talents, expects to be recognised as superior without commensurate achievements.” This was one of the traits on which Dr Lucire relied in reaching her opinion that Mr C has such a disorder. At paragraphs 20 and 22 of the report Dr Lucire refers to Mr C’s perception of his own abilities. She says at paragraph 20, that “I believe Mr C exaggerates his achievements when he speaks of ‘making steady progress in the Australian corporate sector.’ This is a narcissistic characteristic of narcissistic personality disorder.” Again at paragraph 22 of the report Dr Lucire says that she suspects that Mr C’s reference to his “impressive record, recognised achievements and excellent work references” was an “exaggeration and self promotion of his achievements.” (See also paragraphs 38 and 39.)

54 Ms Lord gave evidence that the applicant was a valuable employee and that she had offered him a position as a business manager at the Corrective Services Academy. There was also evidence from David Farrell, who was the former Regional Commander of the Central Region from 1992 to 1996. He says that Mr C “was a valued member of the Management team and played a key role in Regional achievements.. . . (he) was held in high regard by all staff within the Regional Office and highly respected by Gaol Governors within the Region for his guidance and support in financial management.”

55 The Commissioner for the Department of Corrective Services also wrote in a letter to Mr C dated 21 February 1997 that “Assistant Commissioner Woodham and other senior officers of the Department have spoken very positively of the contribution which you have made since your employment with the Department and I am keen to retain your services.” Other references describe him as “capable, conscientious and extremely reliable”, “professional and thorough” and as having a “sound knowledge of accounting principles and a professional approach.” There is other evidence in a similar vein.

56 The evidence supports a finding that Mr C was a highly capable and valued employee. He has been recognised for his achievements and has excellent work references. There was no evidence whatsoever which supports Dr Lucire’s finding or assumption that Mr C was exaggerating his achievements or that he expects to be recognised as superior without commensurate achievements. Consequently, one of the factual bases on which Dr Lucire based her opinion that Mr C has a Narcissistic Personality Disorder has been disproved.

57 Other factual matters. There were several other factual matters contained in the report which Mr C alleged were incorrect. Either I have not found those matters to be incorrect or they are not sufficiently critical to Dr Lucire’s diagnosis to cast doubt on its correctness. Nevertheless I will deal with some of those matters and my conclusions as they formed a major part of Mr C’s case.

58 The first section of the report headed “Observations” contains Dr Lucire’s diagnosis as well as some of the evidence on which she based that diagnosis. That evidence consisted mainly of things that Mr C told her in the interview and things that Mr C wrote in a statement prepared for the purposes of his workers compensation claim, dated 22 December 1998.

59 The December 1998 statement was written 12 months prior to Mr C’s consultation with Dr Lucire. According to Mr C, the December 1998 report was written when he was ill and on sick leave. Dr Napper gave evidence that “You really can’t assess somebody’s mental state based on a document that they had written at a time in the past when they were very angry and upset, you need to do it at the time and I notice that Dr Lucire doesn’t actually have a formal mental state examination section in her report which is not normal standard practice.”

60 The fact that Dr Lucire based her opinion, in part, on a document written by Mr C which was 12 months old and written at a time when he was angry and upset, does not mean that the factual substratum for the expert opinion is substantially disproved. Mr C did write the document and Dr Lucire used the information expressed in the document as a partial basis for her diagnosis. Even if the way Dr Lucire approached her task was not “best practice” within the profession, that does not make the facts on which she relied incorrect.

61 At paragraphs 3, 4 and 5 of the report Dr Lucire states that:

“[The applicant] has repeatedly been told, and it was spelt out again by me, that his claim has been rejected on the basis of s 11 of the Workers’ Compensation Act , because his issues concern his redeployment and provision of benefits in the form of redundancy.

I told Mr C that in order to fight this case he would have to demonstrate that his employer’s actions were ‘unreasonable’.

Mr C made out to me that this was the first he had heard of such a thing, but I later reviewed his file and found that he was deceiving me here and this was not the case. Mr C had been dealing with s 11(a) (sic) for quite some time and knows very well that the major issue in this case is the reasonableness of his employer’s actions.

62 It was common ground that Dr Lucire meant to refer to s 11A(1) of the Workers Compensation Act 1987 which is reproduced above at [8] . Mr C says that the first time he became aware that the issue was the reasonableness of his employer’s actions was when Dr Lucire told him. Mr C was sent a letter on 20 January 1999 which stated, in part, that:
We have declined your claim because in our opinion your injury was not related to your employment. Because workers compensation only applies if an injury is work related, this means you aren’t entitled to any compensation payments in this case.
63 Ms Pope gave evidence that this letter was sent in error. On 15 February 1999 Mr C received a second letter which stated that:
In relation to section 74 of the Workplace Injury Management and Workers Compensation Act, your claim was declined as no compensation is payable under section 11a (sic) of the above Act if it relates to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal or a worker.
64 It is noteworthy that neither “redeployment” or “redundancy” (the words used by Dr Lucire in paragraph 3 of the report) are referred to in s 11A, however the section does mention transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. After further inquiries, Mr C was advised by letter of 16 April 1999, that:
As previously advised, you (sic) claim for compensation was declined under legislative provisions of section 11A of the Workers Compensation Act 1987. This information was forwarded to you in our letter dated 20 January 1999. As a result of the declinature, any injury management activities planned to facilitate in your return to work ceased.
65 The information was not forwarded in the letter of 20 January 1999. However, Mr C was formally advised on 16 April 1999 that his claim had been declined under s 11A and was later provided with a copy of that provision. Mr C said that he was familiar with s 11A, but he did not share Dr Lucire’s understanding that he was required to prove to anyone that the employer’s actions were unreasonable.

66 That assertion is not consistent with Mr C’s letter of 24 February 1999 to the Workers Compensation Resolution Service. In that letter he refers to the contradictory letters he received and says that “The provisions of s 11A specifically refer to ‘reasonable actions taken or proposed to be taken by or on behalf of the employer. . .’ This is a crucial factor of these provisions. Yet, the insurer omitted it in its assessment of my claim.”

67 Mr C was never told expressly that his workers compensation claim was rejected because his employer’s actions were regarded as reasonable. However, he did understand that reasonableness was the critical issue. Consequently, Dr Lucire’s assumption that he “knew very well that the major issue in his case is the reasonableness of his employer’s actions” is not incorrect.

68 In relation to the withdrawal of the offer of redundancy, Dr Lucire stated, at paragraph 9, that: “I pointed out to Mr C, as no doubt others had before, that the offer of redundancy was withdrawn after, and because, he had submitted a compensation claim.”

69 Mr C denies ever being told that the offer of redundancy was withdrawn “after and because he had submitted a compensation claim.” Mr C entered into two redundancy agreements with the Department, one on 30 June 1998 and another on 12 October 1998. The first agreement was “withdrawn” because the Department deemed that Mr C had breached the agreement by not proceeding on Job Search Leave by 31 August 1998. The Department re-instated the original offer on 12 October 1998 and Mr C accepted that offer.

70 In a letter Ms Lord wrote to Mr C on 7 April 1999, she states in relation to the second agreement, that, “The Department had no choice but to withhold any offer of redundancy as you chose to lodge the workers compensation claim.” Again, in a letter of 23 April 1999, Ms Lord told Mr C that “the Department is not in a position to consider an offer of voluntary redundancy until your workers compensation claim is resolved.” This evidence makes it clear that Mr C was told that the offer of redundancy was withdrawn, or at least held in abeyance, until after the workers compensation claim was resolved.

71 At the hearing, Ms Lord gave evidence which contradicted her statements in the correspondence. In answer to a question as to why the voluntary redundancy offer was withdrawn, she said: “No, it wasn’t withdrawn because of the workers compensation claim, it was withdrawn because Mr B failed to follow the plan of activity that was part of the agreement.” In the light of that evidence, it appears that despite the correspondence, the offer was not withdrawn because of the workers compensation claim. Nevertheless, Dr Lucire was correct when she said that others had pointed out to him that the offer was withdrawn as a result of the workers compensation claim.

72 At paragraph 10 Dr Lucire said that:

Mr C momentarily confused me by saying that he had not submitted a compensation claim until later. Then, when I examined the documents, I confronted him with the fact that he had indeed put in a certificate for workers’ compensation in the period while he was waiting for the final decision about his redundancy.
73 This paragraph demonstrates some understandable confusion on Dr Lucire’s part. There was evidence that Mr C lodged a medical certificate in November 1998, but that his workers compensation claim was not lodged until 23 December 1998. The offer of voluntary redundancy had been made and accepted in October 1998. While no redundancy payments had been made by the time Mr C put in his workers compensation application, it is not true to say that he was still waiting for a final decision. To that extent Dr Lucire’s opinion was based on facts which were incorrect.

74 At paragraph 11 Dr Lucire said that:

Mr C’s response to that contradiction was to tell me that putting in a certificate for workers’ compensation is not the same as putting in a claim. As far as he was concerned, he still does not know, even after I told him and others had told him also, why the offer of redundancy was temporarily withdrawn.
75 Ms Lord gave evidence that the lodgement of the medical certificate does not constitute the lodgement of a workers compensation claim. Dr Lucire may not have appreciated the distinction Mr C was attempting to draw.

76 At paragraph 12, Dr Lucire stated that:

My understanding is that this is standard practice (to temporarily withdraw an offer of redundancy) because the Department needed to assess whether or not Mr C was suitable for medical retirement.” (Words in brackets added.)
77 Ms Lord gave evidence that medical retirement was never considered in relation to Mr C. However in a memorandum of a meeting with officers from the Premier’s Department and the Department of Corrective Services the following words appear: “Consideration of Medical Retirement: Is Insurer considering psychiatric reports?” Further down, the memorandum states: “C Services (Corrective Services) to let him go with a medical retirement.” (Words in brackets added.) It may be that Dr Lucire was referring to this document when she made her comment about medical retirement, if it was a document to which she had access. Her assumption that there was a need to assess whether or not Mr C was suitable for medical retirement is borne out by the memorandum, despite Ms Lord’s evidence that this did not in fact occur.

78 In her report, at paragraph 31, Dr Lucire refers to Mr C’s workers compensation statement and says:

At point 18, there is an allegation of staging by the WMC. Mr C at this point is so grandiose that he can imagine that people go through false procedures in order to put on an act especially for him. One would need to be very self-centred, very narcissistic to believe this kind of thing. His response (sic) are those of a person with a Narcissistic Personality Disorder.
79 Mr C wrote in his statement, at point 18, that:
However, the WMC put me through a series of staged “priority” job interviews. The interviews were contrived for the purpose of assessing me incompetent to act at my nominal level (Clerk Grade 9/10) and incapable of learning new tasks. . . I felt humiliated, degraded and stressed.
80 There was understandably very little direct evidence about the interviews which Mr C attended and the motivation of the Workforce Management Centre in attempting to place him in an alternative position. On the basis of the limited evidence available I am not able to form a view as to whether Mr C’s allegations are correct or not.

81 At paragraph 49 Dr Lucire states that:

Mr C then argued that he had not lodged a claim, just put in a medical certificate for stress. He said he only lodged the claim because he was ‘forced to’ on 22 December.
82 Ms Lord confirmed that if an employee has a work related illness, they should consider lodging a workers compensation claim.

83 At paragraph 53 of the report under the heading “Current Situation”, Dr Lucire states,

I asked him why he had not gone to work during the period he was waiting for his redundancy and sitting at home, and he said that he did not go because public servants are not allowed to get jobs without permission. He did not ask for permission.

Comment: I think his excuse is nonsense. He could have got a job at any time. I suspect he was holding out for the redundancy money.

84 Ms Lord confirmed that public servants must apply to the head of the Department for approval to work outside the public sector. Dr Lucire’s comment that “his excuse is nonsense” fails to appreciate that Mr C could not obtain a position outside the public sector unless he resigned or obtained permission from the head of the Department.

85 Under the heading “Re stress claim 1992” Dr Lucire refers to a previous workers compensation claim for stress which Mr C made in 1992. Dr Lucire says that she reviewed Mr C’s file in relation to his former stress claim in 1992. At paragraph 60 Dr Lucire states that:

At the time, Mr C wrote a complex memorandum detailing messy accounts, ongoing problems with the system and the backlog. This account amounted to a major critique of his employer. I saw this as a rather high-handed position to take, scornful and critical.
86 Mr C believes that an evaluation of the memorandum against Dr Lucire’s comments is relevant in assessing her attitude towards him. The memorandum does refer to “very messy accounting records” and states that “. . . for the last 3 months I have been managing the accounting area alone, working in a messy and extremely stressful conditions. This situation has affected my state of health. . . ”

87 I agree with the agency’s submission, that nothing in Dr Lucire’s comments about the memorandum demonstrates factual incorrectness in the report.

Correctness of the opinion

88 There are three bases for concluding that Dr Lucire’s opinion that Dr C has a Paranoid Delusional Disorder and a Narcissistic Personality Disorder is incorrect. The first, and perhaps the most fundamental, is that Dr Lucire withdrew this opinion in oral evidence. Even if it cannot be said that she withdrew it, she certainly modified it so that she was no longer giving a definite diagnosis of Paranoid Delusional Disorder or a Narcissistic Personality Disorder. In Crewdson, the Court of Appeal anticipated such a situation and said at [35], that:

The position might be different if an expert whose opinion had been accurately recorded recognised later that it was incorrect at the time and withdrew it. However the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion. See Cox and Dept of Defence (1990) 20 ALD 499, 500, 501 (Todd DP). An amendment in the latter form would falsify the records and attempt to rewrite history. See Botany Council v The Ombudsman (1995) 37 NSWLR 357, 369 and Re Close (1993) 31 ALD 597, 609. Without the original opinion the records would not tell the whole story, and would be misleading.
89 The question of how the report should be amended is dealt with further below.

90 The second basis for concluding that Dr Lucire’s opinion is incorrect is that neither of the disorders which Dr Lucire diagnosed began in early adulthood. For the reasons set out in paragraph 52 above, Dr Lucire’s assumption that the disorders did begin at that time (if indeed she ever directed her mind to that issue) is incorrect. Because early adult onset is a pre-requisite to the diagnosis of both disorders under DSM-1V, Dr Lucire’s opinion cannot stand and it is not necessary to obtain the opinion of another expert to find that it is incorrect. If it is necessary for the Tribunal to be persuaded by an alternative expert opinion, I am persuaded by the opinion of Dr Napper on this point. (See paragraph 92 below.)

91 The third basis for the Tribunal’s conclusion that the diagnosis of Narcissistic Personality Disorder is incorrect is that one of the elements of that disorder contained in DSM-1V, on which Dr Lucire relied, is not supported by the facts. The assumptions on which Dr Lucire based her opinion that Mr C has a grandiose sense of self-importance were incorrect. Dr Lucire did not expressly identify the five traits listed for Narcissistic Personality Disorder in DSM-1V on which she relied. However, reading her report, it is clear that as well as a “grandiose sense of self importance,” she regarded him as having a “sense of entitlement: unreasonable expectation of especially favourable treatment” and as reacting to criticism with “feelings of rage, shame, or humiliation”. The presence of two of the traits listed in DSM-1V is insufficient to justify a diagnosis of Narcissistic Personality Disorder, but this is a case where the Tribunal must seek the opinion of an expert as to whether, based on the facts that remain, such an opinion could be held by any competent expert.

Dr Nappers Evidence

92 Dr Napper is a consultant psychiatrist who treated Mr C on 22 occasions between October 1998 and June 2000. When asked about Dr Lucire’s medical diagnosis of the applicant, he stated that he did not agree with Dr Lucire’s report on any ground. He confirms the Tribunal’s conclusion above, that in order to make a diagnosis of Narcissistic Personality Disorder or Paranoid Personality Disorder “it must have been present for a long time right from early developmental periods. It’s pervasive in that it affects all aspects of life in terms of psycho-social occupational functioning. It’s not just something that occurs that comes on later on in life.”

93 Dr Napper’s second point was that in order to conclude that a person has a particular personality disorder then a certain number of the personality traits listed in DSM-1V has to be present. He said that if a medical practitioner uses DSM-1V he or she has to have the evidence to support the diagnostic categories. He went through the features of Narcissistic Personality Disorder in DSM-1V and concluded that “. . . to make that diagnosis you need to have five or more of those nine features. Now in my opinion Dr Lucire’s report falls far short in terms of not being able to come up with these features.” Dr Napper expressed the opinion that a competent psychiatrist could not come to the conclusion to which Dr Lucire came, based on the available evidence.

94 Dr Napper was asked to comment on Dr Lucire’s oral evidence that Mr C has a personality disorder in which narcissistic personality traits are prominent as well as the possibility of a paranoid disorder. Dr Napper said that “generally when we do a psychiatric report we have to be very specific referring to personality traits and personality disorder – because many people can just have one or two traits and not be troubled at all, go through life and not have any breakdown or psychiatric treatment.” This suggests that a diagnosis of a particular personality disorder cannot be made unless the person exhibits the requisite number of personality traits identified in DSM-1V or an equivalent publication.

95 Dr Napper’s evidence was credible and convincing. It firstly confirms the Tribunal’s finding that early adult onset is a mandatory element of both disorders, if the practitioner is relying on DSM-1V. Secondly, the Tribunal is persuaded that based on the facts that remain after eliminating a “grandiose sense of self-importance” as a trait exhibited by Mr C, no competent expert could find that Mr C exhibits the requisite number of traits to justify a diagnosis of Narcissistic Personality Disorder.

96 On the basis of all the evidence, I am satisfied that Dr Lucire’s diagnosis of Narcissistic Personality Disorder and Paranoid Delusional Disorder is incorrect.

Orders

97 The powers of the Tribunal when reviewing a reviewable decision are set out in s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). That section states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. when determining an application for the review of a reviewable decision, to:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

98 Pursuant to s 63(2) the Tribunal may exercise all of the functions that are conferred or imposed by the FOI Act on the agency. It follows that the Tribunal cannot exercise any functions, or make any orders, which the agency itself could not have made. In this case, the reviewable decision, made under s 44 of the FOI Act, was to refuse to amend its records in accordance with Mr C’s application. The agency submitted that the Tribunal’s power to grant relief is limited to “amending [the] records in accordance with the application.” The Tribunal held in Hayward Brown v Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46 at [22] that “The Tribunal has power to make any order which conforms with the substance of the applicant’s application, or part of that application.”

99 In his letter to the Tribunal dated 28 May 2001, Mr C requested that a line be drawn through the following words/phrases:

100 Paranoid delusional disorder, paranoia, paranoid disorder, paranoid personality disorder/delusional disorder (persecutory type), delusional disorder, paranoid notions, obviously paranoid, frank paranoia, pervasive disorder of perception, narcissism and paranoid personality, perhaps delusional, narcissistic personality disorder, narcissistic disorder, primarily narcissistic, narcissism, narcissistic characteristic of narcissistic personality disorder, compulsive traits, obsessional and anxious person, obsessionally, could not call Mr C ‘a reasonable man’, not normal, disturbance of grandiosity and entitlement, afflicted with one or two of these.

101 Mr C also requested a notation be added saying:

The identified words/phrases have been obliterated as a result of legal proceedings before the NSW Administrative Decisions Tribunal. They form part of a biased and unsubstantiated opinion.
102 In his final submission to the Tribunal, Mr C stated that he sought the following relief:
The information contained in the report, and repeated in other records of the respondent be corrected as far as possible;

My preferred option is the one identified in my letter to the Tribunal dated 28 May 2001, i.e. that a line be drawn through certain words/phrases and an appropriate annotation be added to the record;

Another option is that just an annotation be added to other records stating that the opinions contained in the Report are incorrect and misleading and should not be relied on;

In both cases I would like the annotation to state that the amendment was directed by the Administrative Decisions Tribunal;

In addition I would like the tribunal’s final decision record in this matter to be attached to the Report or at least placed on the file(s) containing the Report or its copies;

Also I would like to receive a letter from Treasury advising me of the amendments and providing me with a copy of the amended Report;

In the alternative I would like the records amended in a way the Tribunal considers appropriate.

103 Some of Mr C’s requests fall outside the agency’s, and consequently the Tribunal’s, functions. However, there is no doubt that the Tribunal can “amend” the document.

104 There is no guidance in the FOI Act as to the manner in which records can or should be amended. Mr C did not suggest that the document be removed from the file and courts and tribunals have generally refused to interpret "amendment" as allowing the removal of an entire document from a file. (See, for example, Cox and the Department of Defence (20 ALD 499 at 499-500 per Deputy President Todd.)

105 Pursuant to s 46 an agency is required to add a notation that meets the requirements of that section. An amendment to the record is treated separately from a notation, suggesting that they are mutually exclusive. However the Court of Appeal in Crewdson appears to support the view that an amendment can be made by way of notation in the passage quoted above at [88].

106 Similarly, in this case, any change to the document would make it unintelligible and would re-write history. When determining the manner in which a record should be amended the Tribunal should have regard to the implications for both the agency and the applicant of the various alternatives.

107 In my view the only fair way to amend the document is to attach a notation to it in the following form:

The attached document is incorrect in a material respect pursuant to the Freedom of Information Act 1989. In particular Dr Lucire’s diagnosis that Mr C (insert full name) has a Narcissistic Personality Disorder and a Paranoid Delusional Disorder is incorrect. For further details see the decision of the Administrative Decisions Tribunal in C v-Secretary, NSW Treasury (No 3) [2003] NSWADT 200.
108 If the agency discloses to any person (including any other agency or any Minister) any information contained in Dr Lucire’s report, the agency should ensure that the above notation is included when that disclosure is made.

Costs

109 Mr C sought an opportunity to make an application for costs if he was successful. Under s 88 of the ADT Act the Tribunal may only award costs “if it is satisfied that there are special circumstances warranting an award of costs.” Mr C was not legally represented so would presumably have no solicitor/client costs in relation to this matter. If Mr C wishes to apply for costs in relation to other expenses which he claims constitute costs, then a written application for costs itemising the costs sought and the reasons costs should be granted should be made to the Tribunal and served on the agency within 28 days of the date of these reasons. The agency should file and serve written submissions in response to any such application within 28 days of being served with the application. The question of costs will then be determined on the papers pursuant to s 76 of the ADT Act.