Czerniecki v TAFE NSW - [2017] NSWCATAD 278

Civil and Administrative Tribunal

New South Wales

Case Name:	Czerniecki v TAFE NSW
Medium Neutral Citation:	[2017] NSWCATAD 278
Hearing Date(s):	29 August 2017
Date of Orders:	15 September 2017
Decision Date:	15 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	Ms Czerniecki’s application for the summons to Dr Hekel to be set aside or for TAFE NSW not to be given access to those documents is refused.
Catchwords:	SUMMONS – professional confidential relationship privilege – doctor/patient relationship - whether harm caused to applicant if documents disclosed – whether summons should be set aside as being oppressive
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Director General Department of Community Services v D [2006] NSWSC 827 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261
Texts Cited:	Stephen Odgers, Uniform Evidence Law, (11th ed 2013, Lawbook Co)
Category:	Procedural and other rulings
Parties:	Maria Czerniecki (Applicant) TAFE NSW (Respondent)
Representation:	Counsel: M Gregory (Applicant) Solicitors: Minter Ellison (Respondent)
File Number(s):	2017/00158651
Publication Restriction:	Nil

REASONS FOR DECISION

Overview

A preliminary issue in this case is whether TAFE NSW should be given access to documents produced by Ms Czerniecki’s general practitioner, Dr Hekel, under summons. Ms Czerniecki says TAFE should not be given access to the documents because they are subject to “professional confidential relationship privilege”: Evidence Act 1995 (NSW) Part 3.10, Div 1A. Alternatively she says that the summons is oppressive because it is too wide.
TAFE issued the summons to Dr Hekel in proceedings brought by Ms Czerniecki under the Anti-Discrimination Act 1977 (NSW). Ms Czerniecki’s complaint includes that TAFE discriminated against her on the ground of her disabilities in several ways including by refusing to enrol her in a course or by making her enrolment subject to certain conditions: Anti-Discrimination Act, s 49L. Ms Czerniecki identified her disabilities as being environmental sensitivity, multiple chemical sensitivity and spondylolisthesia. TAFE’s reason for issuing the summons to Dr Hekel was that Ms Czerniecki had “not provided sufficient evidence that she has a disability” and that TAFE requires access to her health records to “consider the issue of disability and prepare its evidence and submissions …”
At the hearing TAFE added another ground for issuing the summons. It was said that reliance on the “unjustifiable hardship” defence in s 49L(4) and (5) meant that information about when Ms Czerniecki was suffering from the symptoms of her illness and the treatment she received is relevant.
I have decided to allow TAFE to have access to the documents produced by Dr Hekel because I am not satisfied that evidence of the documents could not be adduced in proceedings before a NSW court by reason of the operation of Part 3.10 (Privileges) of Chapter 3 to the Evidence Act.

Consideration

The summons identified the documents that he must produce as follows:
A true copy of your entire file in relation to all consultations with, treatment administered to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 278
Decision Date: 15 September 2017

CaseChat Overview and Summary

Czerniecki brought proceedings against TAFE NSW, seeking to set aside a summons for Dr Hekel to produce certain documents related to a medical assessment of the applicant. The applicant claimed professional confidential relationship privilege over the documents, arguing that disclosure would harm her and render the summons oppressive. The court had to decide whether the summons should be set aside as being oppressive and whether harm would be caused to the applicant if the documents were disclosed.

The court considered the principles governing professional confidential relationship privilege and whether the applicant had established that disclosure would cause her harm. The court also assessed whether the summons was oppressive in the circumstances. The applicant argued that the disclosure of the documents would breach her privacy and cause her psychological harm. However, the court found that the applicant had not provided sufficient evidence to support her claim of harm. The court also held that the summons was not oppressive, as it was necessary for the proper administration of justice.

The court concluded that the applicant had not demonstrated that the summons should be set aside or that the documents should not be disclosed. The court refused the application to set aside the summons or to prevent TAFE NSW from accessing the documents. The court held that the summons was not oppressive and that the applicant had not shown that disclosure would cause her harm. The court emphasised that the privilege was not absolute and could be overridden in the interests of justice. The court further noted that the applicant had already disclosed the documents to TAFE NSW, which undermined her claim of harm.

The court ordered that Ms Czerniecki’s application for the summons to Dr Hekel to be set aside or for TAFE NSW not to be given access to those documents is refused. The court found that the summons was necessary for the proper administration of justice and that the applicant had not established that disclosure would cause her harm. The court also held that the applicant had already disclosed the documents to TAFE NSW, which weakened her claim of harm.

Orders

Orders of the court

Ms Czerniecki’s application for the summons to Dr Hekel to be set aside or for TAFE NSW not to be given access to those documents is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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