Central Sydney Area Health Service v Crewdson

[2001] NSWADTAP 44

Appeal Panel

CITATION:	Central Sydney Area Health Service -v- Crewdson (GD) [2001] NSWADTAP 44 revised - 14/02/2002
PARTIES:	APPELLANT Central Sydney Area Health Service RESPONDENT Gerard Michael Crewdson
FILE NUMBER:	019001
HEARING DATES:	03/07/2001
SUBMISSIONS CLOSED:	07/03/2001
DATE OF DECISION:	12/28/2001
DECISION UNDER APPEAL:	Crewdson -v- Central Sydney Area Health Service [2000] NSWADT 184
BEFORE:	O'Connor K - DCJ (President); Fleming G - Judicial Member; Bolt M - Member
CATCHWORDS:	application of common law test - relevant/irrelevant considerations - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993252
DATE OF DECISION UNDER APPEAL:	12/12/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Public Sector Management Act 1988
CASES CITED:	Crewdson -v- Central Sydney Area Health Service [2000] NSWADT 184 Hayward-Brown -v- Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46 RR v Department of Army (1980) 482 F Supp 770 Re Gordon and Department of Social Security (1991) 25 ALD 335 Re Cox and the Department of Defence (1990) 20 ALD 499 Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369 Re Stephens and Victoria Police (1988) 2 VAR 236 Director General, Department of Community Services v S [2000] NSWADTAP 27 Re Corbett and Australian Federal Police 5 AAR 291 Re Leverett (1985) 8 ALN N135 Re Resch and Department of Veterans' Affairs 9 ALD 380 A and Director of Family Services [1998] ACTAAT 249 e Clements and Health Department of Western Australia and Graylands Hospital [1995] WAICmr 57 Bushell v Repatriation Commission (1992) 175 CLR 408 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Woodside v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 Morgan v Director General, Dept Education and Training [1999] NSWADT 91
REPRESENTATION:	APPELLANT N Williams, barrister RESPONDENT In person
ORDERS:	1. Decision under appeal set aside; 2. In substitution for the Tribunal’s order, there be entered an order affirming the agency’s decision to refuse the applicant’s request for amendment, as particularised in para [40] of the Tribunal’s decision.

1 This appeal arises under the Freedom of Information Act 1989 (FOI Act).

2 In Crewdson v Central Sydney Area Health Service [2000] NSWADT 184 (12 December 2000) the General Division of the Tribunal (the Tribunal) set aside the decision of an agency, the Central Sydney Area Health Service (CSAHS) to refuse an application for amendment made under the FOI Act by Mr Gerard Crewdson (Mr Crewdson).

3 It ordered CSAHS to delete the conclusion from a report given by its HealthQuest service to Mr Crewdson’s employer, the Department of Community Services (the Department). The report related to Mr Crewdson’s suitability for continued employment. It ordered that a notation be added to the record. Those orders have been stayed pending determination of this appeal. The Government Medical Officer heads the HealthQuest service.

4 The Department had employed Mr Crewdson since 1990 as a residential care worker. As at October 1997 he was assigned to a group home at Eastwood that provided care and assistance to adults with a range of disabilities who lived there from time to time.

5 As arranged by the Department, Mr Crewdson had on 29 October 1997 attended at HealthQuest for a psychiatric examination. It was conducted by Dr Mary Carolyn Roberts, a psychiatrist. She reported her conclusions to Dr Helen MareeJagger, who was the deputy head of HealthQuest and a delegate of the Government Medical Officer (then Dr H Gapper) for the purpose of issuing reports to the referring agency.


The Record in Issue
6 Dr Jagger issued the report. It is headed ‘Interim Advice’ (and will be referred to as the ‘the report’ or the ‘Interim Advice’ in these reasons). The material text follows:
"The above employee attended HealthQuest today as arranged for independent assessment of his fitness to continue duty. He had not received the appointment letter due to incorrect address details supplied and he was given wrong instructions about HealthQuest's location and consequently arrived late. Because of this and also Mr Crewdson's agitated and distressed state about his attendance at HealthQuest, a clear and full psychological assessment has not been possible today.
Mr Crewdson is currently unfit for work and in need of further psychiatric assessment and consideration of treatment. He has been told that he should seek referral to a psychiatrist via his own doctor. He should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest. This will take about three months as he needs to be seen more than once to explore his mental health fully.
A request for a report is being provided to Mr Crewdson and the details of consequent personal and medical information will remain confidential at HealthQuest. You will be advised of any necessary administrative action when the report is received and our assessment is finalised." (emphases in original)
The Statutory Basis for the Report
7 The Department’s power to refer public servants for such an examination derives from the Public Sector (Management) Act 1988 with the detailed provisions found in the Public Sector Management (General) Regulation 1996 (the Regulation). Part 3 of the Regulation deals generally with the conditions of service of public servants, and cl 17 provides:
‘ 17. Health and safety
(1) For the purposes of this clause, a public servant is not fit for work if the health of the public servant:
(a) may render the public servant a danger to other public servants or to the public, or
(b) is likely to be seriously affected by the public servant's remaining on duty or, if the public servant is absent from duty, by the public servant's resuming duty.
(2) The appropriate Department Head may direct a public servant to submit to such medical examination or other health assessment as the Department Head may, on the advice of the Government Medical Officer, consider necessary, if the Department Head has reason to believe that the public servant is not fit for work.
(3) If the appropriate Department Head has issued any such direction to a public servant, the public servant:
(a) must, if on duty, cease duty immediately, and
(b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of the Government Medical Officer is first obtained or a certificate is furnished by a medical practitioner that the public servant is fit for work.
(4) If the appropriate Department Head receives a health assessment from the Government Medical Officer that a public servant:
(a) is fit for work, the Department Head is to direct in writing that the public servant, if absent from duty, must resume duty, or
(b) is not fit for work, the Department Head is to direct in writing that the public servant must cease duty immediately or, if absent from duty, must not resume duty.
(5) If a direction has been given to a public servant under subclause (4), the nature of the leave, if any, to be granted to the public servant during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of the Government Medical Officer.
(6) A public servant to whom a direction has been given under subclause (4) (b) must not resume duty unless the appropriate Department Head, on the advice of the Government Medical Officer, approves in writing.
(7) The appropriate Department Head is to give the health care professional providing a health assessment of a public servant under this clause any requested information about the duties of the public servant's position that is reasonably required for the purpose of providing the assessment.’
Action
8 As required by cl 17(4)(b), the Department acted on the Interim Advice, and placed Mr Crewdson on 3 months’ sick leave. Mr Crewdson did not subsequently return to duty but remained after the first 3 months on leave until 2 October 1998. On that date proceedings brought by Mr Crewdson against the Department in the Industrial Relations Commission were apparently settled. Mr Crewdson apparently entered into a deed of settlement agreeing to the termination of his employment on terms. (Mr Crewdson has since claimed that he remains an employee of the Department on leave without pay, and has in other proceedings challenged the lawfulness of the Department’s conduct giving rise to the deed of settlement.)

Right to Request Amendment
9 CSAHS has in response to applications made by Mr Crewdson pursuant to the FOI Act released many documents relating to the referral for assessment, as well as documents brought into existence after that event. The only agency decision relating to his FOI applications that Mr Crewdson has put in issue is its refusal to amend the Interim Advice.

10 The right to request amendment of a personal record is conferred by Part 4 of the FOI Act (ss 39 to 51): see generally Hayward-Brown -v- Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46.

11 The FOI Act allows applicants to whom records have been disclosed to apply for amendment of information in them ‘concerning the person’s personal affairs’ and the record remains available for use in the agency in respect of its ‘administrative functions’: s 39. In this case it is agreed that the Interim Advice was such a record.

12 A request for amendment may be made on the basis that information is ‘incomplete, incorrect, out of date or misleading’ (s 39).

13 An agency must determine such an application (s 43) either by ‘amending its records in accordance with the application’ (s 43(1)(a)) or by ‘refusing to amend its records’ (s 43(1)(b)). In this instance the agency refused.

14 The grounds upon which it may refuse to amend are set out in s 44, and in this instance it relied on s 44(a) which provides:

‘ 44 Refusal to amend records
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 …’.
15 Section 46 confers a right on the applicant, where an agency has refused to amend, to require the agency by notice in writing to add to the records a notation.

16 Mr Crewdson did not seek to exercise that right in this case. Instead, following an unsuccessful application for internal review (see s 47), he applied for external review by the Tribunal of the decision to refuse amendment, as permitted by s 53(1) of the FOI Act.

Decision to Refuse Application for Amendment

17 The agency refused his request for amendment, agreeing only to include a notation with the record setting out Mr Crewdson’s point of view as to the adequacy of the record. The notation is an extensive one, and is set out at para [42] of the reasons of the Tribunal.

18 Following confirmation of its decision on internal review, Mr Crewdson applied to the Tribunal for review of the agency’s decision. The Tribunal heard evidence on 7 April and 21 June 2000, delivering its decision on 12 December 2000.


Amendments Requested
19 The Tribunal sought clarification from Mr Crewdson as to the amendments that he sought. He advised the Tribunal as follows, and the hearing was conducted on that basis.
"1. I wish that a line be drawn through Dr Jagger's words statement: "Mr Crewdson is currently unfit for work" in accordance with Department of Health directives.
2. I wish [a] notation to be added to explain that Dr Jagger relied upon information from my employer in formulating this opinion that had not been examined for its veracity and balance.
3. I wish [a] notation to be added that there was no objective evidence to show that I was unfit for my duties prior to on or after 29 October 1997.
4. I wish [a] notation to be added to state also that the direction given by Dr Jagger for me to cease work was unnecessary as per section 6-8.11.5 of the New South Wales Personnel Handbook."’
Tribunal Order
20 Mr Crewdson was successful before the Tribunal in relation to the first of the four requests referred to above. It substituted the following decision:
‘The words ‘currently unfit for work and’ should be removed or obliterated from the original and from any copy of the Interim Report dated 29 October held or contained in the [agency’s] records.
An annotation in relation to each such record should be added by the [agency] containing the following words: ‘The Administrative Decisions Tribunal of NSW has determined that some words formerly in this record be removed or obliterated pursuant to section 43(1) of the Freedom of Information Act 1989 .’’
21 There is no response in the decision to the second, third and fourth requests of Mr Crewdson.

Appeal
22 CSAHS has pursuant to s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) appealed against the decision raising several questions of law. The grounds of appeal are set out later in these reasons.

Tribunal’s Reasoning Process
23 The Tribunal’s reasons for decision are detailed. They refer to the administrative steps that immediately preceded the referral of Mr Crewdson for assessment.

24 They include a number of comments on the adequacy of the procedures adopted by the Department. They refer to the legislative scheme noted earlier under which the assessments are issued.

25 The Tribunal concluded that the Interim Advice was ‘incomplete, incorrect, out of date and misleading in material respects to the extent that it contains the words that the applicant ‘is currently unfit for work.’’: para [50].

26 The Tribunal said at [51]:

‘The record contains a firm declaration that the applicant was unfit for work at a point of time. It is obviously outdated. It is misleading because it implies that a reasonable clinical assessment has been made upon which that declaration has been made. This is not the case here. The offending words are not couched in terms of an expressed ‘opinion’ by Dr Jagger that the applicant was unfit for work. Even it was qualified in this way, it would be misleading because it would suggest that it was an opinion based on a reliable clinical assessment of the applicant. One matter that is clear from the evidence is that there was no reliable clinical assessment made of here [sic]. There was an ‘interim report’ in which the author states that she could not make a reliable clinical assessment and that the applicant should be seen by a private psychiatrist so as to be reliably assessed.’
27 The administrative steps that preceded the referral were the following:
- 15 September 1997 : confidential memorandum from Ms Julia Gillett, manager at group home where Mr Crewdson worked, to area manager, Ms Jacklyn Pitchford, expressing concerns in relation to Mr Crewdson’s behaviour. The memorandum is headed ‘Consideration of Temporary Transfer’ and is a closely typed document of almost 8 pages (forming part of Ex 6 before the Tribunal).
- 10 October 1997 : Contact with HealthQuest by Ms Shand of the Department in relation to alleged concerns about the applicant’s unusual behaviour at work. Discussion at that time with Dr Jagger as to possible actions. Standard form Request for Services sent to HealthQuest seeking a ‘fitness to continue’ medical examination. Appointment fixed for 9 am 29 October 1997.
- 13 October 1997 : Mr Crewdson was hand delivered an undated letter from Ms Pitchford advising him of the appointment. The letter contained 8 stated issues of concern which according to the Tribunal ‘primarily related to work performance issues and were not particularised’: [32]. (It was given to the doctor by the applicant during the interview on 29 October 1997.) There was a 2 hour discussion between Ms Pitchford and Mr Crewdson over the contents of the document with Ms Pitchford concluding that she still wanted him to go for assessment: [32]. The Tribunal said that the letter of 13 October was clearly based on the memorandum of 15 September 1997.
-- 15 October 1997 : detailed fax sent to CSAHS by Human Resources Manager, Northern Sydney Area Office.
-- 29 October 1997 : Mr Crewdson attended appointment, and was interviewed by Dr Roberts who reported to Dr Jagger. The interview took one and a half hours. Dr Robert kept detailed notes. They formed the basis of her report to Dr Jagger. She had documents from the Department before her at interview in particular the confidential memorandum to Ms Pitchford from Ms Gillett, and the note from Ms Shand (evidence to Tribunal, second day, ts 16).
28 Before reaching the conclusion that Mr Crewdson ‘is currently unfit for work’, Dr Jagger was briefed orally by Dr Roberts after the interview. She also took into account the material supplied to HealthQuest by the Department on 15 October 1997. That material included the confidential memorandum of 15 September 1997 from Ms Gillett.

29 The Tribunal was highly critical of the fairness and adequacy of the processes followed by CSAHS.

30 It made adverse findings in respect of the contents of the confidential memorandum of 15 September. It found that most of the concerns expressed in that memo were ‘significantly overstated’. It noted that the memo was written for the purpose of effecting a temporary transfer, and did not propose that the Mr Crewdson be medically assessed as to continued fitness for work: see reasons [16]. The Tribunal stated, ‘This memorandum provided a slim basis for seeking to have a fellow employee medically assessed as unfit for work’. It noted adversely that the memo was not provided to Mr Crewdson before or during his interview with the doctor.

31 It described the actions of the Department on 10 October, but made no adverse comment.

32 It did make adverse comments in relation to the undated letter delivered on 13 October. The Tribunal said, ‘The letter contained … a misleading picture as to the nature of the proposed interview …’; and noted that the letter was not given to the applicant either prior to or at the interview: [18].

33 It was generally critical of the way the Department went about making its request to HealthQuest for a report on the applicant’s continued fitness for work.

34 It considered that the request was not made in accordance with cl 17 set out above. The Tribunal stated the applicant ‘never received sufficient information about the interview’: [13]. The Tribunal found that he was never informed of its nature and the ‘true reasons’ for it, was not given the documents that were given to CSAHS, was not sent the standard form by CSAHS regarding the appointment and was given the wrong address by the Department to attend the interview: [13].

35 CSAHS submitted that the Tribunal had erred in its construction of the scheme set out in cl 17. It said there were two paths allowed for by cl 17. One involved the giving of a direction and an immediate stand-down from work: the cl 17(2) and (3) procedure. There was a separate possibility, it was said. A public servant could be allowed to remain on duty, with action only being taken if a cl 17(4) negative assessment was received: see cls 17(4), (5) and (6). In this instance, we do not consider it necessary to resolve the difference of view between the Tribunal (which construed the provision as involving only one path) and the CSAHS’s view that it allows for two paths. The CSAHS submitted that it was the second path that was being used in this case not the one involving cls 17(2) and (3), as the Tribunal had assumed.

36 The Tribunal noted ([20]) that Dr Roberts had stated (in a report dated 19 January 2000) that she did not reach a diagnosis when she saw the applicant on 29 October. The Tribunal was critical of her statement that the applicant did not give the information ‘that a patient normally gives to a psychiatrist’. He felt that the statement was ‘unusual’ given that the patient was being called to an interview by the employer, and was not undertaking it as a private choice.

37 The Tribunal noted Dr Roberts had concluded that a psychotic illness could not be ruled out because what she saw as the applicant’s ‘intensely agitated state, his clear anxiety, his hostility and very marked distrust of anyone and everything.’ The Tribunal emphasised that Dr Robert had formed an opinion based on these direct observations and also took account of the ‘incidences’ (sic) described in the employer’s report. She recommended that he go off on sick leave until an accurate diagnosis was obtained. The Tribunal noted, among other things, that Dr Roberts did not conduct any investigation into the truthfulness of the employer’s allegations against the applicant ([22]).

38 The Tribunal referred to the evidence given by Mr Crewdson. By July 1997 Mr Crewdson was in dispute with Ms Gillett over work practices adopted at the group house which he saw as impinging on the rights of people with disabilities. It noted that he had in September 1997 agreed to be transferred. Soon thereafter Ms Gillett initiated the process leading to the referral for assessment. The Tribunal noted, on the other hand, that Ms Gillett had appraised Mr Crewdson’s work performance as satisfactory on 20 September 1997. On 21 October, 8 days ahead of the appointment, Mr Crewdson obtained a report from his own doctor, Dr Baker. It is in the nature of a testimonial (set out at [33]) rather than an assessment of his current general physical health or mental condition. It was described by the Tribunal as a ‘medical certificate’ at [34] where it observed: ‘There is no evidence that this medical certificate was ever shown to the respondent [CSAHS] before or during the interview.’ (In our view, this report is of no probative value as it does not provide any indication of a detailed consultation, its purpose or a statement as to current health.)

39 In reviewing Mr Crewdson’s evidence the Tribunal made a number of observations that were negative as to the process. See for example [35] where the Tribunal said:

‘The real issues of concern to the employer in substance can only have related to work performance and management of staff issues. They related only marginally to the question of the applicant's mental health. To make matters worse, the applicant did not co-operate with the doctor during the interview. He insisted on taking notes during the course of the interview and was very tired from having worked nightshift prior to the interview. The doctor was at times hostile towards the applicant and admitted this in cross examination (transcript day two, page 38). She said she also made a lot of effort to try and get the applicant on side to win over his confidence. However that did not happen. She recognised that she did not gain the applicant's trust. She thus formed the view that he be assessed by a private psychiatrist who could he could trust in order that an accurate diagnosis could be made.’
40 The Tribunal’s key findings leading to its ultimate conclusions are at paras [46] to [49], and follow:
‘46 In my view, the applicant has not been fairly treated by the respondent and his employer in relation to the prudent and careful recording of matters which could affect his fitness for work. A careful examination of all the relevant documents at the time should have indicated to the medical professionals concerned that the real issues involved in the applicant's case primarily concerned work practices, staff personalities and internal work and management disputes. They did not sufficiently relate to or relevantly reflect on the applicant's mental stability as at the time of his interview on 29 October 1997. There are many reasons that explain the applicant's behaviour at the interview and why he was unable to be assessed properly. Indeed there is significant (and uncontested) evidence that the applicant was in fact capable of and was performing his duties adequately at about the time of the medical interview which I have referred to earlier in these reasons.

47 In terms of the Interim Report itself, the medical assessment of the applicant was "unclear" and incomplete. In an exchange with the Tribunal in her oral evidence, the following was said:

"TRIBUNAL: Is it fair to say that you made your recommendation in your letter of 29 October out of more abundance of caution than anything else?
Dr JAGGER: Yes, I think that's a fair assessment."
48 Given that fact and this admission, and when combined with the unfortunate series of events that led to the decision, including the extremely prejudicial, inflammatory and unsubstantiated comments contained in the documents emanating from the Department here to which both doctors had regard in arriving at their assessment, I do not think the positive finding that the applicant was "currently unfit for work" can now stand or should remain on the applicant's file.

49 It may be true that the applicant voluntarily attended the HealthQuest interview. However, he was not then aware of the extent of the material on the file against him or of the highly prejudicial comments that had been made about the then alleged state of his mental health by this employer. He was not aware of how the two doctors would take that material into account, what importance they would attach to it or whether it would form any part of their determination of his fitness for work. Had he known all that, he might well have chosen not to attend the interview, which would have been within his legal rights.’

41 The Tribunal then went on to make its principal findings [50]-[51], already set out at paras [25] and [26] of these reasons.

Grounds of Appeal
42 The amended notice of appeal filed 28 February 2001 lists a number of alleged errors of law in the reasons for decision. The agency does not seek leave for the appeal to extend to the merits of the decision.

43 The grounds of appeal are:

1. The Tribunal erred in law in taking irrelevant considerations into account in determining whether the impugned passage was ‘incomplete, incorrect, out of date or misleading’ within the meaning of s 44(a) of the FOI Act.
2. The Tribunal erred in law in failing to take into account relevant considerations in determining whether the impugned passage was ‘incomplete, incorrect, out of date or misleading’ within the meaning of s 44(a) of the FOI Act.
3. The Tribunal erred in law in its interpretation and application of s 44(a) of the FOI Act
4. The Tribunal erred in law in misapplying the test in RR v Department of Army (1980) 482 F Supp 770 ; and
5. In the alternative that the Appeal Panel does find that the impugned passage was ‘incomplete, incorrect, out of date or misleading’ within the meaning of s 44(a) of the FOI Act, then the Tribunal erred in law in the method of amendment to the record that it ordered.
44 CSAHS filed written submissions on 28 February 2001. At hearing on 3 July 2001 further oral submissions were made by counsel for CSAHS, Mr Neil Williams. Mr Crewdson filed detailed written submissions in reply. He also made oral submissions at the hearing.

45 The appeal challenges the process of reasoning undertaken by the Tribunal. In our view, the first and second grounds of appeal can only be dealt with once the third and fourth grounds are addressed. The third and fourth grounds raise the question of the approach to be adopted by the Tribunal in discerning whether the correct and preferable decision has been made by the agency in refusing requests for amendment pursuant to s 44(a). Whether the considerations taken into account were relevant or irrelevant (the first and second grounds) must depend on what is the proper approach to the interpretation and application of s 44(a) of the FOI Act.


Approach to be taken in Amendment Cases: Interpretation and Application of s 44(a) and Relevant Test (Grounds of Appeal 3 and 4)
46 First of all, the Tribunal must ascertain precisely what amendments are sought by the applicant. In this case that occurred: see [19] above.

47 It then follows, we consider, that the applicant must be able to produce some evidence to show that the record might be inadequate in the ways set down in the FOI Act. In our view the applicant must present a rational basis for claiming that the information recorded is incomplete, incorrect, out of date or misleading in a material respect. While this is not an issue in the appeal, we doubt whether that point was ever reached in this case. Apart from his own assertions, Mr Crewdson produced no independent evidence as to his state of health and the adequacy of his performance of his duties at or in the recent period prior to the HealthQuest assessment. In our view, self-serving assertions in relation to an expert opinion would rarely, if ever, be sufficient to require the agency to revisit the record.

48 We have described in some detail the approach taken by the Tribunal in this case. Following its assessment of the evidence, the Tribunal turned to the question of the applicable law. It said:

‘52 The respondent relied on a number of cases from other jurisdictions involving the amendment of personal records under FOI legislation. These cases were said to support the proposition that the Tribunal cannot amend medical records as they are not matters of fact and they are parts of history and matters of professional medical opinion. It was said the Tribunal cannot rewrite history. I was referred to, inter alia , Re Gordon and Department of Social Security (1991) 25 ALD 335; Re Cox and the Department of Defence (1990) 20 ALD 499. These cases do not relate to a situation where the opinion, notwithstanding that it is an historical fact, is so misleading, unsafe and unsatisfactory as to warrant it being appropriately amended by the Tribunal. In any event, statements of opinion are held in other jurisdictions to be amenable to amendment by excision from the record (see, for example, Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369.) I see no basis to read down or limit the statutory power of this Tribunal in the manner contended for by the respondent.

53 On the question of personal records containing expressions of opinion, I was referred by both parties to the Victorian case of Re Stephens and Victoria Police (1988) 2 VAR 236. That case did not concern a medical opinion. However, the Tribunal there quoted extensively from an American case, a decision of District Judge Gesell in RR v Department of Army (1980) 483 F Supp 770 in which the Court considered related American legislation. From that decision, the Victorian Tribunal then outlined (at page 239) four "useful" categories for a decision-maker to have regard to when determining whether there should be an amendment of opinion information. The decision-maker should consider whether:

"1. the facts underlying such opinion have been thoroughly discredited or have been demonstrated to be totally inadequate;
2. the person forming such opinion was tainted by bias or ill will, incompetence or lack of balance, or necessary experience;
3. the factual substratum underlying the opinion is so trivial as to render the opinion formed dangerous to rely upon and likely to result in error;
4. the facts upon which the opinion was based were misapprehended."
54 In my opinion, although I do not feel constrained to adopt these categories as the only ones applicable in making determinations of this kind, they are a useful guide to the proper approach under the NSW FOI Act.

55 In the present case, categories 1 and 3 are relevant and applicable for the reasons I have indicated. I suspect category 4 might well be applicable as well, however, I do not need to find so for present purposes.’

49 CSAHS submitted that instead of applying the test in s 44(a) the Tribunal wrongly adopted the test ‘misleading, unsafe and unsatisfactory’ which it said comes from the Criminal Appeal Act 1912 . There is no indication in the reasons for decision that that was the source from which the Tribunal obtained this phraseology. We agree that the words ‘unsafe’ and ‘unsatisfactory’ should have been avoided, but we do not regard this as an error of significance.

50 CSAHS submitted that it was not the function of the Tribunal to act as an expert medical board of review, acting on its own opinion of clinical assessments reached and the materials upon which they were based, unsupported by an contrary expert evidence of any relevant kind. It noted that there was no psychiatric evidence to suggest the respondent was fit for work at the date of the assessment; nor was there any expert evidence, except for a general statement by the respondent’s general practitioner, which did not to purport to express a psychiatric opinion at all. (As to the latter point we have already indicated our agreement earlier in these reasons.)

51 CSAHS submitted that the Tribunal proceeded from a misconception as to the nature of an expert opinion. Counsel for CSAHS submitted that an opinion is ‘an inference drawn from facts’; and that an opinion does not become misleading just because some of the facts on which it was based are shown by other evidence to be unfounded or doubtful or recorded in circumstances that might be inadequate from the viewpoint of the principles of procedural fairness.

52 As to the much-cited US case, RR v Department of Army (1980) 482 F Supp 770 (Gesell J), CSAHS submitted that the decision has never received unqualified acceptance in Australia. Counsel noted that the decision is based on interpretation of a different statutory scheme.

53 Counsel for the CSAHS submitted, in reliance on these authorities, that the Tribunal’s power in reviewing a s 44(a) decision does not extend to investigation of facts not recorded in the document in question, and forming but one part of a factual substratum on which they opinion is recorded in the record is based. He submitted that the Tribunal is not permitted to undertake a review of the fairness, appropriateness or desirability of agency conduct leading up to making the notation in question.

54 Mr Crewdson submitted that the amendment applicant had an unqualified right to an amendment. He referred to the provision in s 39 giving the right to make the application, and then the provision in s 43(1)(a) stating that ‘[a]n agency shall determine an application: … by amending its records in accordance with the application.’ His contention was that a duty arose. Such a submission seeking to render immaterial the power of refusal given to agencies by the next provision, s 44, was considered in Hayward-Brown, cited above, where the Tribunal (Hennessy DP) said at [40]:

‘The use of the word "may" in this provision [s 44] means that the agency has a discretion to refuse to amend a document in certain circumstances. For example, under 44(a) if the agency is satisfied that the information is not incomplete, incorrect, out of date or misleading it may refuse to amend its records. However, this provision does not prevent an agency from amending a record even if it is not satisfied that it is incomplete, incorrect, out of date or misleading. Neither does it require an agency to amend its records if it is satisfied of those facts. Of course, the Tribunal has to examine all the relevant factual material including the reasons for making such a determination before deciding whether the agency had come to the correct and preferable decision.’
55 Mr Crewdson submitted that it was permissible for the Tribunal to investigate the ‘factual substratum’ (as Gesell J described it) when seeking to ascertain whether an opinion meets the statutory standard set by the FOI Act. He noted that no statutory basis or authorities were cited in favour of CSAHS’s assertion that the Tribunal does not have power to undertake review of the fairness, appropriateness or desirability of agency conduct. He contended that to ignore procedural fairness issues would not sit with the statutory objectives of the FOI Act (FOI Act, s 5) and the Tribunal’s own enabling legislation (the Administrative Decisions Tribunal Act 1997 , s 3).

Amendment of Opinions
56 We do not accept the Tribunal’s characterisation of the record made by Dr Jagger as one that did not involve the giving of an opinion: see [51] of the Tribunal’s reasons. The conclusion expressed by Dr Jagger has to be read in the context of the statutory scheme, as set out in cl 17 of the Regulation. The task of the Government Medical Officer involves the making of an assessment. It is the case that the assessment does not only involve the formation of a medical opinion. It also involves the application of expertise, drawn from experience in regularly making cl 17 assessments and from information supplied - by the referring agency and the affected employee- as to the nature of the duties performed.

57 The Appeal Panel has, in a decision that was not referred to in CSAHS’s submissions, dealt generally with a number of the issues raised in this appeal: see Director General, Department of Community Services v S [2000] NSWADTAP 27.

58 There the Appeal Panel dismissed an appeal by an agency against a Tribunal decision ordering the removal of opinions negative to the parents from a Departmental investigative report relating to the care of there child, who was affected by a disability. The Tribunal found in that case: one, there was no factual basis on which the opinions expressed in the Intake Summary documents (an official report prepared when a person is taken into care, recording any concerns and possibly recommending action) could have been validly formed; and, two, that the opinions were based on incorrect or non-existent facts that were misleading because they suggested, among other things, that the child could be at risk because of his parents' conduct. The Appeal Panel noted that the opinions did not involve the application of special expertise or professional expertise.

59 The agency had argued that if the opinions were genuinely held they should be immune from excision. In the agency’s view only opinions that were inaccurate or misleading and not genuinely held could be the subject of an order for removal from the record. The Appeal Panel rejected this submission: at [35]. The Panel went on to discuss the issue of amendment of opinions:

‘35 A genuinely held opinion can nevertheless be a misleading one, and so misleading that it may as a matter of good administration and in fairness to its subject be necessary to remove it from circulation. The case-law, appropriately, reflects care on the part of courts and tribunals in approaching the question of whether opinions should be revised or changed by way of formal amendment. The Tribunal below at [25] and [27] cited several cases which acknowledge these propositions: see, for example, Re Corbett and Australian Federal Police 5 AAR 291, Re Leverett (1985) 8 ALN N135, Re Resch and Department of Veterans' Affairs 9 ALD 380; Re Cox and Department of Defence 20 ALD 499, Re Jacob v Department of Defence 15 ALD 645, and the leading United States case frequently referred to in this context, RR v Department of Army (1980) 482 F Supp 770. See also Re Warren and the Department of Defence (Cth AAT, 22 December 1993 N92/621).

36 It is also important to differentiate between on the one hand expressions of opinion where the opinion is based on the possession of special expertise, such as applies in the case of a medical practitioner making a diagnosis, and on the other hand a situation where the opinion derives from a conclusion as to fact where no special expertise is involved. This is a case of the latter type. See generally A and Director of Family Services [1998] ACTAAT 249 (8 April 1998) esp at [35]. This case was one where the Tribunal found that an initial assessment gave misleading picture as to claims of physical injury and physical abuse towards a boy by his foster family. In that case the Tribunal concluded that it was sufficient that appropriate notations be placed on the documents, an issue which is further examined in the heading, 'Mode of Amendment', below.

37 The cases properly distinguish situations where there is a factual foundation for an opinion which is expressed and those where there is none. They also properly distinguish those cases where the opinion has followed from a process of assessing and resolving conflicting versions of the facts. Both of these factors were present in the case of Morgan v Dept Education and Training [1999] NSWADT 91, upon which the agency sought to rely but which we do not consider to be directly applicable here.

38 The present case, as the Tribunal noted, was not one where the opinion had been shown to have a factual foundation or one reached after making choices between conflicting versions of the facts. This was a case where both an independent inquiry and the material placed in evidence before the Tribunal permitted the conclusion that there was no factual basis shown for the opinions and concerns expressed in key parts of the two Intake Summaries.’

60 The Appeal Panel also made the following observations on RR v Department of Army :
‘41 As to the US case, RR, we make the following brief observations. This is an early and important ruling on the operation of the US Privacy Act 1974 rights of access and amendment to Federal agency personal records. We endorse the thrust of the following observations at 774:
'Remedial legislation should be liberally construed in order to effect its obvious purpose. ... 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. This position is reinforced in the Act's legislative history, where there are clear indications that insidious rumors and unreliable subjective opinions as well as simple factual misrepresentations fall within the ambit of the Act's strictures. … That the Privacy Act contemplates ... expungement and not merely redress by supplement is fairly implicit in the decisions of this and other circuits. ... The proposition that judgmental or evaluative matters are not beyond the purview of the Privacy Act has been tacitly accepted in some instances ... Plaintiff is therefore authorised to seek amendment of both inaccurate biographic data and unsupported diagnostic conclusions relating to his 1951 hospitalization.'
42 We note that the reference to amendment only being permitted where all the facts have been 'thoroughly discredited' relates to the circumstance where a professional judgment is in issue. The case here is not one of professional judgments (in the strict sense) being placed in issue. In any case we are inclined to the view that a threshold of 'thorough discreditation' may be too restrictive in some instances. When this sentence is read in the context of the court's other observations it is reasonably clear that this test is not seen as applicable to all kinds of judgmental or evaluative material.

43 On the particular facts in RR the court ordered deletion of a number of biographical history items that were shown in evidence to be 'conclusively false.' ( 775)

44 As to a doctor's professional diagnosis of the individual's mental condition the court found that the doctor 'did not rely exclusively on the discredited social history when diagnosing plaintiff's condition' (id.). Accordingly it was not prepared to intervene to amend the record, and pointed to the complexities of intervening in circumstances where the 'factual predicates for such opinions are diverse (id.) and where 'it is next to impossible to reconstruct the process by which the opinion was formulated and determine what the opinion would have been.' In this instance the medical judgments were 'not so thoroughly discredited as to justify their deletion or contradiction in the record.' (id.)’

61 Counsel for CSAHS referred to the early Commonwealth AAT case, Re Resch and Dept of Veterans’ Affairs (1986) 9 ALD 380; and in a recent ACT AAT case Re Applicant and Dept Education and Training, Children’s, Youth and Family Services (1998) 53 ALD 509. These decisions broadly adopt the approach taken in RR v Department of Army . (See also Mann v Medical Practitioners Board (Vic AAT, 20 August 1997.)

62 In Re Resch at [33] the Commonwealth AAT (Hall DP) referred with approval to the following passage from Gesell J’s judgment in RR v Department of Army at 775:

‘Where matters of professional judgment such as this are concerned, and the factual predicates for 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.’
63 Hall DP continued:
‘(35) In the absence of adequate argument on the issue, I would not wish to adopt unreservedly all that was said in RR v Department of the Army as applicable to s 48 of the FOI Act. The facts and legislative background in that case are, in any event, distinguishable. However, the distinctions drawn in the reasoning of that decision between a medical history, on the one hand, and an opinion based on that history, on the other, are, I think, useful in the analysis of the issues now before me. I would also add that the proposition for which it stands as authority is very narrow, namely that an expert opinion based solely on discredited facts cannot be allowed to stand.’
64 Hall DP referred to the statutory scheme under which the Repatriation Commission (within the Department of Veterans’ Affairs) makes its decisions as to veterans’ pensions. He saw the question before him as being whether the information placed in issue by the applicant accurately recorded the decision made by the Commission. He concluded:
‘(37) In my view, the relevant “information” relating to Mr Resch’s personal affairs that is contained in the Commission’s determination made on 8 April 1982 is the record of the Commission’s decision as to the condition accepted by the Commission as attributable to Mr Resch’s war service. There is no evidence before me that the determination is other than an accurate record of what the Commission decided. There is no relevant aspect in which that information is incomplete, incorrect, out-of-date or misleading. There is no proper basis therefore for amending that record under Pt V of the FOI Act.
Medical opinions
(38) With respect to the doctors’ opinions, there is no evidence to establish (as in RR ) that the factual premises upon which those opinions are based are erroneous. There is no evidence to suggest that the opinions are other than the opinions which the doctors genuinely held - both then or now. The evidence goes no further than to establish (as the Commission has, at all material times, been aware) that there is a conflict of medical opinion as to the correct diagnosis of Mr Resch’s condition. In my view, the medical opinions of the Departmental medical officers and consultants are not shown to be “incorrect” merely by producing medical opinions to the contrary- particularly when neither of those opinions are supported by reasons and where such detail as is available as to the basis of the conflicting diagnosis of Mr Lahz involves a recognition that the diagnosis is “atypical” and that the diagnostic criteria applied are “wider than those of many other acknowledged experts in the field”.’
65 In the more recent ACT AAT case, Re Applicant , Curtis P said:
‘(62) There are, of course, limitations to the amendments that might be made to the record of an opinion. The limitations arise, not from any express restriction on the powers of the tribunal, but from the inherent nature of the provisions of the FOI Act (ACT) for correction of records. … The situation is more complex where the opinion is formed as the result of applying special knowledge or skills to a set of facts, such as the diagnosis of an illness by a skilled physician observing a set of symptoms. In such a case, it may be necessary to have the opinion of other experts. If the facts on which the opinion in the record is based occurred some time in the past and could not be replicated at the time amendment of the record is being considered then, in the absence of bias or lack of qualification of the author of the opinion or some other such matter, it may be very difficult to come to a conclusion as to whether the opinion was correct or not. …

(63) Where an opinion, even an expert opinion, is based on facts that are shown to be wrong or misunderstood, it is clear that the opinion cannot be allowed to stand as correct information. Even before the amendments to the FOI Act (Cth) to which I have referred, it was established that such an opinion might be corrected by the procedures of Pt V of the FOI Act (ACT). [The President then referred to Re Leverett and RR v Department of the Army and Re Jacobs and Department of Defence (1988) 15 ALD 645; Re Resch and Department of Veterans’ Affairs]’

Curtis P continued:
‘(65) … I see no reason why an opinion should be allowed to stand as correct if the principal factual support for the opinion is shown to be erroneous unless it appears that same opinion would have been given if the author of the opinion had not relied on the discredited facts. …’
66 We prefer this approach, one somewhat broader than the proposition expressed in RR v Department of Army and in Re Resch , though still a cautious one. It is consistent with the view expressed by the Appeal Panel in S’s case .

67 Whichever of these approaches is adopted, Mr Williams for CSAHS submitted that the decision under review remained in error.

68 We agree with Mr Williams’ essential submissions. The opinion tendered by Dr Jagger after report from Dr Roberts did not depend entirely on the information supplied by the Department. Even if that information were found to be entirely discredited, there remained Dr Roberts’ observations of Mr Crewdson at interview. It was a long interview and the subject of detailed clinical notes. Dr Roberts gave evidence at hearing as to the wide range of matters canvassed in the interview.

69 A distinction can be drawn between facts provided to a doctor, either by an employer or an employee, and the doctor’s own observations of the employee referred for a medical examination. This distinction comes from Daniel v Department of Defence Nos. P94/46 and P94/47 AAT No. 9739, 19 August 1994, where Senior Member Allen said at para 15:

‘All in all, I consider that the Applicant’s application in these proceedings is misconceived. There is evidence to challenge the opinions of the Army doctors who compiled the documents in question. There is, however, no evidence that those opinions were based on facts which had been discredited, as opposed to a different of professional opinion on those facts. So far as the discharge medical is concerned, the distinction must be drawn between the history, which the Applicant gave, and was noted, and the physical signs observed by the examining medical practitioners and their opinions formed as a result of their observations.’
70 A Western Australia case provides a succinct illustration. In Re Clements and Health Department of Western Australia and Graylands Hospital [1995] WAICmr 57 (29 November 1995) the Commissioner concluded that:
‘The agency admits that Dr Groves did not document specific evidence for his opinion regarding the potential risks posed by the complainant. However, I am not required to determine the correctness or otherwise of that opinion. In my view, there is material before me, including the description of the particular medical condition with which the complainant was diagnosed, to establish that the factual substratum … was not trivial.’
71 We agree with Mr Williams that observations made by Brennan J are of assistance. They were made in a dissent (but not as to this point) in Bushell v Repatriation Commission (1992) 175 CLR 408; since cited with approval by Burchett J in Sun v Minister for Immigrationand Ethnic Affairs (1997) 81 FCR 71 (Fed Ct, FC):
‘Although s 120(3) [ Veterans’ Entitlement Act 1986 ] entrusts the determination of the issue of reasonableness to the decision-maker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner who supports the reasonableness of the hypothesis favouring entitlement.’
72 The Tribunal in the present case formed a view as to the adequacy of how Dr Roberts went about the task of conducting a professional interview; and similarly about how Dr Jagger went about reaching her opinion. It formed a view as to various omissions and failures on their part: see [21]-[27]. It did so without the benefit of any appraisal from a person with expertise in psychiatric interviewing techniques. This is not a satisfactory way to approach amendment disputes relating to the adequacy opinions involving the application of special expertise.

73 This approach is not consistent with the approach reflected in Re Resch and Re Applicant, and the warning given (albeit in another statutory context) by Brennan J in Bushell.

74 We agree with Mr Williams, that the view reflected in Re Gordon and Department of Social Security (1991) 25 ALD 335 is applicable. There the AAT said at [17]:

‘In the present matter, Mr Gordon called no medical evidence, although he read to the tribunal a passage from a medical textbook. Without the evidence of appropriately qualified medical witnesses, we consider that it is not open to us to find that information contained in medical reports is incomplete, incorrect, out of date or misleading.’
75 That statement followed a reference to the case of Re Cox and Department of Defence (1990) 20 ALD 499 where the Tribunal did find that certain specialist medical reports forming part of an ex-officer’s defence service records contained information which was incomplete, out of date or misleading. The Tribunal in Re Gordon noted that in Re Cox the Tribunal had made its finding ‘with the assistance of specialist medical reports and of the oral evidence of two clinical psychologists.’

76 Mr Crewdson did not produce any expert evidence on these matters. The Tribunal did not obtain an expert to assist it. Because two types of expertise were involved – psychiatric expertise and expertise in assessment of the nature of the duties performed - it may have been necessary for two experts to be called, or one expert who is qualified in both areas.

77 Much attention was given in the case to the agency documentation that led to the referral. In our view caution must be shown in shifting the focus of inquiry in an FOI amendment application from the document in issue (here the Interim Advice) to other documents that were taken into account in formulating the document in issue.

78 As we noted earlier, in ordinary circumstances the task of the agency officer faced with an amendment application, and of the Tribunal on review, is to ask whether the applicant has presented a rational basis for claiming that the information recorded is incomplete, incorrect, out of date or misleading in a material respect.

79 This test is similar to the ‘reasonable hypothesis’ test found in the different statutory context which was the subject of the decision in Re Bushell to which we have referred above. When the challenge is made to an opinion involving the exercise of special expertise, something more will normally be required than mere contrary assertions by the applicant. Similarly, something more would normally be required in a context like the present before supervisors’comments could be rejected as not providing some, or the entire, basis for the opinion expressed.

80 Even accepting for present purposes the view that the concerns expressed by Ms Gillett in September were not well-founded, it is difficult to see how the Tribunal could reach the conclusion that Dr Roberts and Dr Jagger should somehow have detected that and not proceeded to express any final view. Dr Roberts and Dr Jagger had before them a report expressing concerns from Mr Crewdson’s supervisors. There was also Dr Roberts’ interview. They considered that it corroborated, at least to some degree, the concerns of the supervisors. They produced a provisional diagnosis, and acknowledged the need for a further diagnosis to be made, including having regard to any professional opinion obtained by Mr Crewdson.

81 This case fell short of one where it could be said that the ‘substratum of facts’ on which the opinion was based was entirely discredited, or the material facts were discredited.

82 The document in issue in this case, the Interim Advice, is brief. It did not contain detailed reasoning leading to its primary conclusion. The clinical notes (Ex 6) of Dr Roberts are extensive. They form a major part of the ‘substratum of facts’. The Tribunal would need to have persuasive expert evidence that they opinion could not be reasonably founded on the substratum.

83 In our view the approach taken by the Tribunal was in error in making an assessment as to matters of special expertise without any independent evidence from persons possessing such expertise. The third ground of appeal, which we see as the most fundamental, is made out. The fourth ground of appeal is also made out, i.e. that it misapplied the test in RR v Department of Army, as it has been amplified in Australian FOI law.


Irrelevant and Relevant Considerations: Grounds of Appeal 1 and 2
84 CSAHS submitted that among the irrelevant considerations taken into account by the Tribunal were these: whether an agency has treated an applicant fairly; whether an applicant might not have chosen to attend a medical appointment; and its noting that that the medical professionals did not have relevant documents and that if they did that ‘a careful examination of all the relevant documents at the time should have indicated to the medical professionals concerned that the real issues in the applicant’s case concerned work practices, staff personalities and internal work and management disputes’ (at [46] of decision.

85 CSAHS submitted that the following considerations should have been taken into account: the nature of the decision which declared the Respondent unfit for work; the context of the impugned words. CSAHS also criticised the Tribunal for not giving any reasons as to why the opinion became outdated when there was an absence of any further medical opinion as to the present accuracy of the record.

86 Mr Crewdson submitted that the matters relied upon by CSAHS simply sought to re-agitate issues as to the fact-finding process, and were instances of the Tribunal reaching conclusions with which it did not agree, and referred to the Appeal Panel’s decision in S’s case in support. He also drew attention to the dicta of Brennan CJ, Toohey J, McHugh J and Gummow J that an appellate court should be slow to disturb a find by a primary decision maker: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 282; also discussed in Woodside v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 at [72] and following. We agree, as Wu Shan Liang affirmed, an ‘overzealous approach’ should not be taken by a reviewing court ‘by seeking to discern whether some inadequacy may be gleaned from the way in which reasons are expressed by an administrative decision-maker’ (id.). A similar principle applies to the role of the Appeal Panel vis a vis the primary level of this Tribunal.

87 Mr Crewdson also submitted that the Tribunal’s finding that the advice was ‘obviously outdated’ at [51] referred to the Tribunal’s observation of his conduct during the case, including comments on the respondent’s intelligence and quality of written submissions.


Assessment
88 In our view it is a misconception of the nature of the inquiry in a record-amendment dispute to examine the procedural adequacy of the steps that gave rise to the record in issue.

89 The Tribunal spent a considerable portion of its reasons focussed on process considerations. Although procedural fairness is a core value in public administration, the FOI Act does not, in our view, confer any jurisdiction on the Tribunal to examine these issues in the context of an amendment application.

90 The focus is the record itself and its contents. The object of the record-amendment inquiry is the quality of the information, not the quality of the process that gave rise to the information.

91 The Tribunal made its own assessment of the adequacy and fairness of the underlying material. Having itself formed a negative view in relation to that material, it concluded that the author of the opinion was not entitled to have regard to the material.

92 This is our view sets an unrealistic standard for those providing expert opinions in the course of government administration. In this instance the material was clearly relevant, as it gave supervisors’ perceptions as to Mr Crewdson’s current work performance and their concerns about his stability. That the original purpose of the confidential memorandum of 15 September was to raise the possibility of a temporary transfer does not, in our view, detract from its value as information that might assist the higher-order issue (stand-down) that was open to be considered by HealthQuest in late October.

93 Unless there is some obvious cause for serious concern on the face of the material supplied or arising from the interview itself, a professional adviser in the circumstances of Dr Roberts and Dr Jagger is, we consider, justified (especially in the framework of a statutory scheme of the kind found in cl 17) in taking into account such material.

94 While our general view is that a Tribunal should only move to amend an expert opinion on the basis of credible expert evidence justifying that course, we acknowledge that there may be cases where the facts upon which the professional assessment was based may be shown to be ‘thoroughly’ discredited (to use the words of Gesell J) through ordinary fact-finding processes.

95 It is conceivable that an expert opinion could be shown to have no satisfactory basis in fact and should be withdrawn.

96 However 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. We agree, with respect, with the sentiment of Brennan J as reflected in the dicta in Re Bushell that the mere fact that another expert might have taken a different view on the same facts is not enough. The opinion under challenge must be shown to be one not open to a competent expert.

97 We also agree with CSAHS that the Tribunal irrelevantly took into account the question of whether the applicant might not have chosen to attend the appointment; and what perceptions the doctors should have formed as to relevant documents and the nature of the employment concerns. We also agree that the Tribunal gave insufficient consideration to the nature of the statutory scheme under which the advice was rendered.

98 We do not consider it necessary on this occasion to reach any concluded view on the approach to be adopted in relation to the question of the test that should be applied to determine whether a record is ‘outdated.’ We agree that the Tribunal’s reasons in this regard were inadequate. As Mr Crewdson suggested in his submissions, it seems to have formed its view on the basis of his presentation at hearing. We agree with Mr Williams that ordinarily one would expert a record based on special expertise only to be updated once a further opinion employing the same expertise indicates that is appropriate. Moreover, records by their nature represent a statement of what is considered relevant or necessary information at the time they are created. Only in relation to unvarying facts will they remain continuously up-to-date. We note that the FOI Act does not include any requirement that information be ‘relevant’. This omission may support the view that in an FOI amendment application context the question is whether the record in dispute was ‘up-to-date’ at the time it was created. But we express no final view on this issue.

99 The first and second grounds of appeal are established.


Mode of Amendment
100 In light of our conclusions it is not necessary to rule on the fifth ground of appeal. CSAHS’s submission is that obliteration of a record made pursuant to a statutory duty is not a proper form of order under the FOI Act; at most ‘striking through’ is sufficient.

101 In reply Mr Crewdson sought to seek an expansion of the Tribunal’s orders to include deletion of the entire HealthQuest record. Such an application is not open to an applicant who is a respondent on appeal. The respondent is bound by the specific application for amendment made in the original proceedings before the Tribunal.

102 As to the obliteration issue (and the companion issue – destruction of the record), the Appeal Panel refers to the views expressed at length on this subject in Director General DOCS v S [2000] NSWADTAP 27 at [59] – [79]. We will not reiterate them here. We also note and agree with the comment of the AAT in TB Jacobs v Department of Defence (AAT, 5 August 1988) where the Tribunal agreed to amendment of documents stating:

‘I agree as to the undesirability generally of rewriting history. However where information contained in a document is incomplete out of date or misleading, justice may require additions deletion or amendment in some satisfactory way.’
103 The Appeal Panel considers that in extreme cases it may be necessary, as a matter of justice, to order deletion in the form of obliteration or in the form of destruction; but, as was noted at [80] and following of that decision, the Tribunal should ensure before the making such an order that the agency is given an opportunity to address its practicalities, and whether it is desirable to preserve an archived record of the original unamended record. See also Morgan v Director General, Dept Education and Training [1999] NSWADT 91 (decision set aside on appeal on other grounds) at [24] and following.

Determination
104 The first four grounds of appeal are made out. We are satisfied that the decision under review should be set aside. There was no application by CSAHS to extend the appeal to the merits.

105 In light of the reasoning approach and the principles that we consider should have been adopted, there is, in our view, no reasonable prospect that Mr Crewdson would be successful if his amendment application were to be remitted and reheard.

106 In these circumstances, we consider it appropriate to exercise the power conferred by s 114(2) (c) of the Administrative Decisions Tribunal Act 1997, which provides:

‘ (2) The orders that may be made by the Appeal Panel on any such appeal [an appeal on a question of law] include, but are not limited to, any of the following:
…
(c) an order made in substitution for an order made by the Tribunal.’
107 Accordingly, we consider that a final order in substitution should be entered to affirm the original decision of the agency to refuse the application for amendment, as particularised at para [40] of the Tribunal’s reasons. That leaves open the possibility of an amendment by way of notation, as previously proposed by the agency.

ORDERS
1. Decision under appeal set aside.
2. In substitution for the Tribunal’s order, there be entered an order affirming the agency’s decision to refuse the applicant’s request for amendment, as particularised in para [40] of the Tribunal’s decision.