FCZ v Illawarra Shoalhaven Local Health District

[2022] NSWCATAD 79

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FCZ v Illawarra Shoalhaven Local Health District [2022] NSWCATAD 79

Hearing dates:

21 December 2021

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop, Senior Member

Decision:

(1) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW), no action will be taken in this matter.

(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the name of the applicant, her child or her ex-husband is prohibited.

(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the name of the applicant’s friend as proposed representative is prohibited.

Catchwords:

ADMINISTRATIVE LAW — health information of child —parent’s access to information — authorised representative — public interest considerations — whether contravention of health privacy principle

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 58, 59

Administrative Decisions Tribunal Act 1997 (NSW), s 75

Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 27(1)(b), 36(1), 38(5)(c), 45, 50(2), 64, 73(2)

Civil and Administrative Tribunal Rules 2014 (NSW), cl 32

Family Law Act 1975 (Cth), ss 4, 61B, 61C, 121

Government Information (Public Access) Act 2009 (NSW), ss 3, 12, 13, 14, 55

Health Records and Information Privacy Act 2002 (NSW), ss 6, 8, 11, 22(3), Sch 1

Privacy and Personal Information Protection Act 1998 (NSW), ss 53, 55

Cases Cited:

AIN v Medical Council of New South Wales [2017] NSWCATAP 21

Department of Justice and Attorney-General v AY [2010] NSWADTAP 17

OD v Department of Education and Training (GD) [2005] NSWADTAP 74

Mansfield v Department of Family and Community Services [2014] NSWCATAD 43

Rilak & Tsocas (No 8) [2015] FamCA 1235

Rilak & Tsocas [2020] FamCA 49

Rodny v Stricke [2018] NSWCATAP 136

State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69

WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FCZ (Applicant)
Illawarra Shoalhaven Local Health District (Respondent)

Representation:

Applicant (self-represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2021/00259392

Publication restriction:

(1) Pursuant to order of the Tribunal made on 18 October 2021, publication or broadcast of the name of the applicant is prohibited. A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the name of the applicant, her child or her ex-husband is prohibited.
(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the name of the applicant’s friend as proposed representative is prohibited.

Judgment

1. The applicant, FCZ, seeks a review of the respondent’s conduct in refusing to provide her with access to health information about her 10 year old daughter. The health information sought is in the electronic medical record of FCZ’s daughter for the period 1 September 2013 to 30 November 2015, and an expert certificate of Dr Katherine Brown of the respondent (“Confidential Documents”).

2. In early 2015, FCZ made allegations that her ex-husband (the father of their daughter) had sexually abused the child. FCZ took the child (who was aged five at the time) to the Wollongong and Port Kembla Hospitals for medical examinations, including a vaginal swab, and the child was also examined by Dr Brown. It is the health information obtained and generated from these examinations that are contained within the Confidential Documents.

3. The sexual abuse allegations were made in the context of over 33 Family Court proceedings between FCZ and her ex-husband. On 13 November 2015, Family Court orders were made concerning FCZ’s daughter (“2015 Orders”), including that FCZ’s ex-husband have sole parental responsibility for FCZ’s daughter. The 2015 Orders were not disclosed by FCZ to the respondent or the Tribunal.

4. On the application of the respondent, at the hearing I made an order under s 59 Administrative Decisions Review Act 1997 (NSW) (“ADR Act”), that the respondent be relieved of its obligation to lodge the Confidential Documents. My written reasons for making this order are set out below.

5. Just prior to the hearing, FCZ purportedly filed an application to be represented by her friend (referred to in this decision as DQB), who is not a lawyer. My written reasons for refusing leave for DQB to represent FCZ are also set out below.

Background facts

6. On 13 January 2021, FCZ completed and lodged with Port Kembla and Wollongong Hospitals, facilities of the respondent, a Health Records and Information Privacy Act 2002 (NSW) (“HRIP Act”) application form requesting access to the following:

“1.   All Medical Records from Wollongong and Port Kembla Hospitals, including but not limited to W’gong Hospital records on 3-4 April 2015.

2.    If separate from the above, I also request any documentation related to [FCZ’s daughter’s] attendance upon Dr Katherine Brown at Port Kembla on 10 May 2015, including but not limited to certificate under s 177 under the Evidence Act.”

7. FCZ then attended the medical records department of Wollongong Hospital, providing proof of identity including a Medicare card which also listed her daughter’s name. This was used by FCZ as proof of parental responsibility for release of the medical records.

8. Some documents were released to FCZ by the medico-legal officer at Wollongong Hospital, but they did not include the documents that form the Confidential Documents.

9. On 1 February 2021, FCZ lodged with the Kids & Families Division of the Domestic and Family Violence & Sexual Assault Services (a facility of the respondent) a further health records application form in respect of her daughter requesting access to the Confidential Documents.

10. On 11 March 2021, the respondent notified FCZ that she would need to obtain a subpoena in order to access the expert certificate prepared by Dr Brown.

11. FCZ responded by providing orders of the Family Court of Australia in Rilak & Tsokas [2020] FamCA 49 made on 4 February 2020 (“2020 Orders”) which included the following:

(1)That, pursuant to s 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the Applicant Mother [FCZ] be and hereby are dismissed.

(2)That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Applicant Mother [FCZ], … be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child …

(3)That, pursuant to s 102QB(2) of the Family Law Act 1975, the Applicant Mother [FCZ], … be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Respondent Father ...”

12. It was not known to the respondent whether FCZ and her ex-husband had sole or equal parental responsibility for their daughter.

13. Given the content of the 2020 Orders, on 9 April 2021, the respondent requested FCZ provide a copy of the final parenting orders issued by the Family Court with respect to her daughter before any requested information relating to her daughter could be released.

14. Two further requests were made (via email) for FCZ to provide a copy of the final parenting orders. FCZ did not provide a copy of the orders.

15. On 12 May 2021, the respondent refused FCZ’s request for access to information relating to her daughter. In the decision, the respondent noted that in order to release the information, it required consent from the parent with parental responsibility and that to release the information otherwise might contravene a health privacy principle (“HPP”) under the HRIP Act and under s 14 Government Information (Public Access) Act 2009 (NSW) (“the GIPA Act”).

16. FCZ again requested her daughter’s medical records but did not provide a copy of the final parenting orders. The respondent again stated it required a copy of the final parenting orders made by the Family Court in order to reconsider its position on release of the documents.

17. On 21 June 2021, FCZ made an application for internal review of her 13 January 2021 application for medical records.

18. In July 2021, two further requests were made by the respondent for a copy of the final parenting orders. FCZ maintained that she had “disclosed all materially relevant information”. FCZ also refused to provide the contact details of her ex-husband to the respondent.

19. On 17 August 2021, the respondent issued its decision with respect to the internal review under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (the “PPIP Act”) in relation to the respondent’s conduct under the PPIP Act and the HRIP Act. The respondent determined:

“In relation to the handling of the information regarding [FCZ’s daughter’s] medical records, I am satisfied that the ISLHD did not breach any section of the HRIP Act in light of the steps it took to confirm the applicant’s authorised representative status and there being overriding public interest considerations against disclosure.

The internal review affirms ISLHD’s decision not to grant the applicant access to [her daughter’s] health information under HPP 7 and HPP 11 of the HRIP Act, and there being overriding public interest considerations against disclosure under Table 14 3(a), 3(b), 3(g) of the GIPA Act. I recommend that the ISLHD take no further action on the matter pursuant to section 53(7) of the PPIP Act.”

20. On 10 September 2021, FCZ lodged her application for administrative review of the respondent’s conduct in refusing to give her access to the Confidential Documents.

FCZ’s family law proceedings

21. There were over 33 Family Court proceedings between FCZ and her ex-husband. In several of these proceedings, FCZ represented herself.

22. On 13 November 2015, Loughnan J made the following findings in Rilak & Tsocas (No 8) [2015] FamCA 1235 (the names used are pseudonyms assigned by the Family Court):

“174. Aside from the physical examinations of [the child] by the mother or in her care, I am unable to find that the mother has physically assaulted [the child]. Whether deliberate or not, there is no doubt that the mother has at times instilled in [the child] an unwarranted and inaccurate narrative about being assaulted by the father. The mother did that, despite advice from the authorities and in breach of Court orders.

175. Importantly, Dr [C] agreed in cross-examination that the risk to the child of psychological harm in the mother’s household warranted the adjective ‘grave’…

176. Counsel for the father submitted that the risk of [the child] developing false memories and experiencing psychological harm while in the mother’s care has escalated since the allegations were made by the mother. The mother has continued to seek a psychological review of [the child] in respect of the alleged sexual abuse. She has made ongoing attempts to provide evidence that support her allegations. It was submitted that despite the change in the orders sought by the mother, she will continue to interrogate the child, have her medically examined, complain to authorities and have other people examine the child. I share those concerns.

177. Notwithstanding the very substantial change in the orders she seeks, there is no reason to think that the mother will change her attitude to the father, her belief that he has and will abuse [the child] or her search for evidence of abuse. The search for evidence of abuse has resulted in [the child] being repeatedly and inexpertly questioned by the mother, the maternal grandmother and maternal aunt. It has resulted, unnecessarily, in repeated JIRT interviews and [the child] being medically examined, including undergoing a vaginal swab. The advice the mother received from the police, FACS, the medical authorities, Dr [C] and through Court orders of this Court, is inconsistent with the mother’s ongoing beliefs and she has steadfastly ignored that advice.

178. When put to Dr [C] that [the child] is living in an abusive environment in the mother’s home, Dr [C] opined that ‘in terms of allowing [the child] to have a relationship with her father and her brother, and grandmother, I would agree that that is emotionally abusive’.

179. As discussed above at paragraph 107, there is now no contention before the Court that [the child] has been abused by the father or that she is at risk, let alone grave risk, of such abuse in the future. For completeness, I should say that in any event, the evidence would not support either finding.”

23. This case adopted pseudonyms for the parties to the proceedings. However, on the evidence, including the 2015 Orders, I am satisfied these findings are made in the family law proceedings between FCZ and her ex-husband

24. FCZ’s appeal from this decision was dismissed by the Full Court and the High Court.

25. Despite the 2015 Orders, FCZ continued to agitate that her ex-husband had sexually assaulted their daughter and ultimately in 2020, on the application of her ex-husband, the Family Court made the 2020 Orders preventing FCZ from commencing any further proceedings in the Family Court.

26. Shortly before the hearing of the present matter, FCZ’s ex-husband provided to the Crown Solicitor’s Office, a copy of the sealed 2015 Orders. These were the very orders the respondent had requested on numerous occasions.

27. Of relevance are the following orders:

“(5)    The father shall have sole parental responsibility for long-term decisions about [the child]…

(8)   Unless the parents otherwise agree in writing… the child shall spend time with [FCZ] at such times and on such dates as may be arranged with and supervised by Interrelate…

(14)   The father shall advise the mother in a timely manner about any long term parenting decisions, invite the mother’s views about all decisions, consider such views as the mother may express, and advise the mother of the decisions he ultimately makes…

(30)   The father shall advise the mother immediately if [the child] suffers illness or injury requiring hospital admission.”

Issues

28. The issues for determination are:

1. Whether, in light of the respondent’s conclusions that FCZ was not an authorised representative and there was an overriding public interest considerations against disclosure, the respondent breached HPP 7 by not giving FCZ access to the Confidential Documents;

2. If a breach is established, whether and if so, what action should be taken under s 55(2) of the PPIP Act.

Legislation

29. The Tribunal has jurisdiction under s 55 of the PPIP Act to administratively review conduct that was the subject of an application for review under s 53(1) that Act.

30. The task of the Tribunal is to review the conduct complained of and to determine whether or not that conduct was conduct which amounted to a breach, such as an alleged contravention of HPP.

31. Under s 11 of the HRIP Act, an “organisation” that is a health service provider must comply with HPPs. There is no dispute that the respondent is an organisation, public sector agency and health service provider for the purposes of s 11.

32. The scope of the review proceeding in the Tribunal is limited by the scope of the application for internal review: OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]-[14].

33. Clause 7 of Sch 1 to the HRIP Act (HPP 7) requires an organisation to provide an “individual to whom the information relates” with access to their health information without delay or excessive expense.

34. Clause 11 (HPP 11) restricts an organisation from disclosing information for a purpose other than the purpose for which it was collected (being the primary purpose) unless, among other things, the individual to whom the information relates has consented to the disclosure of the information for a secondary purpose.

35. There is no dispute in this proceeding that the review proceeding relates only to an alleged contravention of HPP 7 arising from the respondent’s refusal to provide FCZ with access to the Confidential Documents.

36. Under s 6 of the HRIP Act, “health information” means:

(a) personal information that is information or an opinion about –

…

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service …

37. Under s 8(1) of the HRIP Act, an “authorised representative” in relation to an individual means:

(c) a person having parental responsibility for the individual, if the individual is a child.

38. Further, “parental responsibility” is defined in s 8(3) as follows:

parental responsibility, in relation to a child, means all the duties, powers, responsibility and authority which, by law, parents have in relation to their children.

39. Under s 22(1) HRIP Act, nothing in the HRIP affects the operation of the GIPA Act. Further under s 22(3) HRIP Act, conditions or limitations imposed under the GIPA Act with respect to access to health information effectively apply as if they were provisions of the HRIP Act. Consequently, if there is an overriding public interest against disclosure under the GIPA Act, an agency is not required to provide access to a document under the HRIP Act.

40. Section 12 of the GIPA Act provides a general public interest in favour of disclosure and provides that nothing limits any other public interest considerations in favour of disclosure that may be taken into account for the purposes of determining whether there is an overriding public interest against disclosure.

41. Section 13 of the GIPA provides as follows:

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

42. When determining whether there is an overriding public interest against disclosure, s 14(2) of the GIPA Act provides that the considerations listed in the Table to s 14 may be taken into account. There is a public interest against disclosure where disclosure could reasonably be expected:

1. to reveal an individual’s personal information (cl 3(a));

2. to contravene a health privacy principle under the HRIP Act (cl 3(b)); and

3. where the disclosure is personal information about a child, that disclosure would not be in the best interests of the child (cl 3(g)).

43. Further, under s 55 GIPA Act, in determining whether there is an overriding public interest against disclosure of information various factors may be taken into account including:

1. The applicant’s identity and relationship with any other person;

2. The applicant’s motives for making the access application,

3. Any other factors particular to the applicant.

44. Section 55(3) stipulates that these “personal factors” can only be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2-5 of the Table to s 14 GIPA Act.

45. The “personal factors” can also be taken into account as factors in favour of providing the applicant with access: s 55(2) GIPA Act.

Evidence and submissions

46. FCZ filed with the Tribunal a summary of legal arguments dated 14 November 2021 and Response to Respondent’s submissions dated 17 December 2021. She did not file any evidence in the substantive proceeding.

47. The respondent relied on an affidavit of Dr David Cooper of 6 December 2021 and otherwise relied on the Confidential Documents filed in support of its s 59 application; the s 58 documents lodged with the Tribunal and written submissions dated 6 December 2021. In addition, the respondent provided the email communications between the Crown Solicitor’s Office and FCZ’s ex-husband where he provided copies of the 2015 Orders and communicated that he did not consent to the respondent disclosing the Confidential Documents to FCZ.

FCZ’s argument

48. FCZ’s case was put on two bases. First, FCZ argued that the information she was seeking relates to her because she took her daughter to Wollongong and Port Kembla Hospitals to be examined and gave consent for those examinations to occur. As she requested the examinations be undertaken and the information held by the respondent would not have been collected but for FCZ’s consent, she is the “individual” to whom the information relates within the meaning of the HRIP Act.

49. Secondly, FCZ argued that despite the 2015 Orders, she has joint parental responsibility with her ex-husband for her daughter’s day-to-day health care. She asserted that she is able to make “short-term” medical decisions for her daughter. The example she gave was if her daughter was with her and needed to go to hospital, she could call the ambulance. FCZ did not provide any evidence, nor did she engage with the rest of the 2015 Orders relating to her daughter.

50. FCZ contended she has parental responsibility within the definition in s 61B of the Family Law Act 1975 (Cth) being “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Section 61B is subject to the exception in s 61C which says that both parents have parental responsibility subject to any orders of a Court. FCZ contended that there was no displacement of the presumption about parental responsibility because no court order has taken away or extinguished her parental responsibility: rather it has been displaced only in relation to long-term decisions. She further contended that whatever the current arrangements are (by Court order), they are temporary and only permanent extinguishment of parental authority (such as in adoption) would negate the public interest in a parent being aware of the respondent’s information held about her child. In any event, as she had parental responsibility at the time the medical examinations occurred, she should be able to have access to them now.

51. FCZ further contended that even though the Confidential Documents have not been publicly disclosed it would not be against the public interest to disclose them to her as she is already aware of the gist of the information. Disclosure to her would therefore be consistent with the policy of HRIP Act.

52. During the hearing I requested FCZ make submissions about the “personal factors” considerations in s 55 of the GIPA Act, in particular her motive for making the access application.

53. FCZ first asserted that the GIPA Act was not relevant. However, after taking her to and reading to her the relevant provisions in the HRIP Act referred to in [39] above, she accepted the GIPA Act applied.

54. FCZ first submitted that her motives for seeking access were “not the Tribunal’s business”. She then contended that as the primary purpose for the respondent making the medical records was to provide her with information about her daughter and disclosure of the written records to FCZ is directly related to the obtaining of the medical records for FCZ in the first place; effectively, her motive does not matter. Ultimately, FCZ submitted the Family Court judge did not have the benefit of the Confidential Documents and that there is a public interest in disclosure of the documents because her daughter has been sexually assaulted and that has not been investigated.

55. FCZ also contended that the officers of the Crown Solicitor’s Office had illegally obtained the 2015 Orders from her ex-husband and breached s 121 of the Family Law Act by putting them before the Tribunal which was, in her submission, akin to disseminating to the public.

Respondent’s argument

56. The respondent submitted that it had not breached HPP 7 in refusing to provide FCZ with access to the Confidential Documents for the following reasons:

1. The health information in the Confidential Documents is not FCZ’s health information but her daughter’s health information. Properly characterised, the information contained in the Confidential Documents is information about the child’s physical health or information about health services provided to the child by the respondent. It is not information about FCZ;

2. FCZ is not her daughter’s authorised representative for the purposes of the HRIP Act, particularly having regard to the 2015 Orders. Therefore, FCZ cannot make a request under HPP 7 to access her daughter’s health information on her daughter’s behalf;

3. In the event FCZ can make a valid request under HPP 7, it is subject to an overriding public interest against disclosure within the meaning of the GIPA Act (and by operation of s 22(3) of the HRIP Act) which is outweighed by any considerations in favour of disclosure here.

57. Mr McDonnell, of the Crown Solicitor’s Office, who appeared for the respondent, submitted that the expression “long-term decisions” in the 2015 Orders is consistent with the definition of “major long-term issues” in s 4 of the Family Law Act which includes:

…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about…

(b) the child’s health                 

58. Mr McDonnell further submitted that in providing the 2015 Orders to the Tribunal, s 121 of the Family Law Act had not been breached as there is an exception in subs (9) for use of those documents in proceedings in a court and the definition of “court” in subs (11) includes NCAT.

Mr Cooper’s evidence

59. The respondent relied on the affidavit of David Cooper, Director of Medical Services, Northern Illawarra Hospitals Group dated 6 December 2021. Mr Cooper is a medical doctor, an emergency physician and has practised for over 37 years. His responsibilities for the respondent include executive operational responsibility for the medical records department at Wollongong Hospital and requests for medical records.

60. FCZ objected to his evidence as it did not comply with the rules about expert evidence. Mr McDonnell confirmed that Mr Cooper’s evidence was not tendered as expert evidence but was evidence about general matters at the hospital within his knowledge including about the confidentiality regime. I admitted the evidence provisionally and Mr Cooper was cross-examined extensively by FCZ.

61. Mr Cooper stated:

1. Maintaining confidentiality of health records is paramount;

2. Access restrictions are usually placed on information relating to medical examinations of children conducted in the context of sexual assault allegations and access restricted to relevant staff and external agencies such as the Joint Child Protection Response Program;

3. Unauthorised release of information might otherwise have a significant psychological impact on the person to whom the information relates particularly in the context of sexual assault allegations and the health information is that of a child;

4. The non-Gillick competent child is not able to refuse access to their medical records and are at the behest of the parent with parental responsibility over them for such consent. This leaves the child in a vulnerable position because they are not able to give or withhold consent.

62. Other than the evidence noted above and general evidence about the practices at the hospital including the management of health information, I gave the balance of Mr Cooper’s evidence, particularly his opinions and conclusions about the Family Court proceedings, little to no weight.

Consideration

Is FCZ an authorised representative?

63. On the evidence before me, in particular the 2015 Orders, I am satisfied that FCZ is not an authorised representative within the meaning of the HRIP Act.

64. This is for the reason that under the 2015 Orders, FCZ does not have parental responsibility for her daughter: she does not have, in respect of her daughter, “all the duties, powers, responsibility and authority which, by law, parents have in relation to their children”. By reason of the 2015 Orders, FCZ was aware that her ex-husband had sole parental responsibility for her daughter and that he had the authority under the 2015 orders to make all final long-term decisions for their daughter including health decisions.

65. Further, FCZ did not file any evidence that demonstrates that FCZ had parental responsibility at the time she made her request for the Confidential Documents or that she has parental responsibility now.

66. Even if FCZ’s contention that the ability to make short-term decisions about her daughter fell within the meaning of “parental responsibility” was correct, I am not satisfied that FCZ has authority to make short-term decisions about her daughter. FCZ provided no evidence that she makes short-term decisions about her daughter or that she has such authority given the totality of the 2015 Orders, including those about access to her daughter.

67. I also reject FCZ’s contention that she is the individual to whom the health information relates (within the meaning of HPP 7). The “individual” referred to in the definition of “health information” in s 6 of the HRIP Act is the person to whom a health service was provided or whose physical health is the subject of the information. It is clear on the evidence that the health services provided at Wollongong and Port Kembla Hospitals and by Dr Brown (recorded in the Confidential Documents) were provided to FCZ’s daughter, not to FCZ. The health information is information about FCZ’s daughter and not FCZ. That same individual, being FCZ’s daughter, is the person to whom the health information relates.

68. Consequently, FCZ was not entitled to request access to the Confidential Documents and the respondent did not breach HPP 7 by refusing her access. To the contrary, the respondent repeatedly requested proof that FCZ had parental responsibility for her daughter and took steps to ensure the Confidential Documents were not disclosed to FCZ without that proof. This was to ensure the respondent did not breach HPP 11. The respondent’s caution was entirely warranted.

Public interest considerations

69. Even if FCZ was an authorised representative, after considering the public interest considerations, I find, in the circumstances of this case, that those in favour of disclosure are outweighed by those against disclosure.

70. The public interest considerations in favour of disclosure include the general public interest in favour of disclosure (s 3 and s 12(1) GIPA Act) and that the information relates to FCZ’s daughter (s 55(1)(a) and s 55(2) GIPA Act). There is generally a public interest in favour of a parent being aware of information held about their children: Mansfield v Department of Family and Community Services [2014] NSWCATAD 43 at [645].

71. The public interest considerations against disclosure include the following:

1. Disclosure could reasonably be expected to reveal FCZ’s daughter’s personal information (cl 3(a) of the Table in s14 of the GIPA Act). Having reviewed the Confidential Documents I am satisfied they contain personal information about FCZ’s daughter. While FCZ may be aware of what occurred during some of the examinations, the Confidential Documents have not been publicly disclosed and providing them to FCZ would reveal personal information about her daughter.

2. Disclosure could reasonably be expected to contravene a HPP (cl 3(b) of the Table to s 14 GIPA Act). HPP 11 restricts an organisation from disclosing information other than for the purpose for which it was collected (the primary purpose) unless the “individual to whom the information relates” consents to disclosure for a secondary purpose. HPP 11 would be breached if the Confidential Documents were disclosed to FCZ for the following reasons:

1. The primary purpose for collecting the personal health information of FCZ’s daughter was for the respondent to provide health services to the daughter. I reject FCZ’s contentions that the primary purpose was to provide FCZ, at her request, with information about her daughter’s medical condition and that the primary and second purposes are the same – to provide her with that information.

2. As FCZ is not the individual to whom the information relates, the Confidential Documents cannot be disclosed to her for a secondary purpose unless consent is given. In this regard, FCZ’s daughter cannot give that consent and FCZ’s husband, who has parental responsibility for their daughter, has expressly stated in the email correspondence to the respondent that he does not consent to the disclosure.

3. Disclosure is not in the best interests of FCZ’s daughter (s14(2) cl 3(g) GIPA Act). There is a risk to FCZ’s daughter if FCZ is provided with the information. The risk is identified in the findings of Loughnan J (referred to at [22] above) being a risk of FCZ’s daughter suffering harm as a result of FCZ’s unrelenting pursuit for evidence of an alleged sexual assault which the “police, FACS, the medical authorities” and the Court have already determined is unfounded. The best interests of FCZ’s daughter are served by protecting her from further harm. The best interests of FCZ’s daughter are served by not giving FCZ access to the Confidential Documents. This is a weighty public consideration against disclosure.

72. In determining whether there is an overriding public interest against disclosure I have taken into account:

1. FCZ’s relationship as mother to her daughter (s 55(1)(a) GIPA Act); FCZ’s motive for the application to obtain access to the Confidential Documents (s 55(1)(b) GIPA Act) which I find is to reagitate her allegations of sexual assault against her ex-husband;

2. FCZ’s steadfast refusal to accept that the conclusions of police, medical practitioners, Family and Community Services and the Family Court in respect of the allegations (s 55(1)(c) GIPA Act);

3. The 2020 Orders declaring FCZ vexatious as well as the findings of Gill J including that FCZ refused to spend time with her daughter in accordance with the 2015 Orders as FCZ refused to tolerate being restricted to supervised time with her daughter (s 55(1)(c) GIPA Act).

73. On balance, public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. As there is an overriding public interest against disclosure, the respondent’s refusal to provide FCZ with access to the Confidential Documents was not in breach of HPP 7.

74. I find that there was no breach by the respondent under HPP 7 and no further action is required to be taken.

Application under s 59

75. On 18 October 2021, the respondent made an application, under s 59 of the ADR Act, for an order relieving the respondent of the obligation to lodge with the Tribunal the Confidential Documents.

76. The respondent also sought an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW (“CAT Act”) that the Tribunal dispense with the hearing of the application.

77. The respondent filed submissions, an affidavit of Emily Azar dated 16 November 2021 and reply submissions. The Confidential Documents were also provided to the Tribunal on this application and are the documents the subject of the substantive proceeding. FCZ also filed submissions.

78. By consent, the timetable for the evidence and submissions on this application were such that the final documents were not lodged with the Tribunal until 17 December 2021 – two business days before the hearing of the substantive proceeding.

Legal principles

79. Section 58(1)(b) of the ADR Act requires an administrator to lodge documents with the Tribunal which the administrator considers to be relevant to the determination of the application for review by the Tribunal. That provision does not require the administrator to provide those documents to an applicant. In most administrative review proceedings, the Tribunal makes directions requiring documents lodged under s 58(1)(b) of the ADR Act to be provided to the applicant.

80. The only way in which the administrator may be relieved of the obligation to lodge is by way of an application under s 59 ADR Act. The effect of an order under s 59 is that the administrator is not required to lodge the document or documents the subject of the order at all and even though the Tribunal and administrator may have access to the documents in the substantive proceedings, the applicant does not.

81. The Tribunal may order that a document or documents not be lodged where it considers that an application could have been successfully made in respect of that material under s 64 of the CAT Act: s 59(2)(b) of the ADR Act.

82. Section 64 of the CAT Act confers a broad discretion on the Tribunal to restrict disclosure of certain documents. It provides as follows:

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders –

…

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence give before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

83. In State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69 (“Dezfouli”) (a case decided under s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) being the predecessor provision to s 64 of the CAT Act), the Appeal Panel emphasised the “three elements of prime importance” being the words “desirable”, “for any other reason” and “may”. The Appeal Panel stated at [50]:

“These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.”

84. The Appeal Panel, at [81], set out the matters which might apply when considering whether to make an order under s 64, including (but not limited to):

1. The presumption in favour of open justice;

2. The need to for an applicant to establish good grounds for making the order;

3. The range of purposes that may be served in the “any other reason” consideration; and

4. The comparative breadth of the criterion of “desirability”.

Submissions of the parties

85. The respondent submitted that it is “desirable” for the Confidential Documents to remain confidential from the applicant and would be subject to an order under s 64. Therefore, an order should be made under s 59. This was said to be for three reasons:

1. The primary issue in the proceedings is whether the applicant is entitled to access the Confidential Documents under the HRIP Act and to require the respondent to lodge those documents under s 58 would render the proceedings pointless.

2. The respondent’s arguments that FCZ is not entitled to access her daughter’s health information under the HRIP Act have more than reasonable prospects of success.

3. The Confidential Documents are confidential and sensitive in nature.

4. The simple act of commencing administrative review proceedings in this Tribunal under the PPIP Act or the HRIP Act should not be used to provide the applicant with a vehicle to obtain access to documents that she or he could not have otherwise accessed under the HRIP.

86. FCZ submitted that the respondent had not proven that it was desirable for the Tribunal to alleviate it of the need to lodge the Confidential Documents under s 58. In particular, FCZ contended as follows:

1. The substantive proceedings decide the question of whether FCZ should be given a copy of those documents. However, if the respondent was required to lodge the Confidential Documents, she would merely look at the documents with “usual undertakings applying”. Therefore, the substantive proceedings would not be rendered pointless.

2. The respondent does not have a strong case including for the reasons that a prima face case arises in her favour under HPP 11 which the respondent has failed to dislodge. In support of this contention, FCZ relied on her submissions in the substantive proceedings. FCZ also made a number of submissions to the effect that the respondent’s submissions were manifestly unreasonable including for the reason that they relied on an “hypothesised psychological impact” on her daughter if FCZ was given the Confidential Documents. She pointed to the lack of an evidential basis for the hypothesis.

1. The respondent has drawn misleading inferences from the 2015 Orders and FCZ did have “lawful parental authority” at the time the medical examinations and interviews were conducted in 2015.

2. The respondent’s reliance on the findings made by the Family Court in relation to her daughter’s medical examinations and interviews (which included a vaginal swab), as being unnecessary, amount to a finding that “a staff member of [the respondent] sexually assaulted a 5 year old by penetration”.

3. The Confidential Documents are no more confidential than the ones the respondent has already provided to her and she attended each of the interviews and examinations to which the Confidential Documents relate. FCZ also contended that she commissioned the reports and had them paid under her Medicare entitlements.

87. FCZ objected to the respondent’s application being determined on the papers including for the reasons that “the policy issues underlying the application are complex and traumatic” and that the respondent has complicated matters by making “misleading representations and attempting to assassinate my character”. FCZ requested that she be given the opportunity to make oral submissions on the application.

Consideration and findings

88. Given the final submissions on this application were lodged two business days prior to the substantive hearing, I decided that the respondent’s application would be heard at the commencement of the hearing. This was communicated by the Tribunal to the parties on 17 December 2021. At the hearing FCZ relied on her written submissions and made no further oral submissions on the respondent’s application.

89. I am satisfied that the Confidential Documents are confidential and sensitive. They concern health information of a child, currently 10 years of age, who lacks capacity to make a request for or consent to the disclosure of her health information. Disclosure of the Confidential Documents could reveal health information of the child that she has disclosed in confidence to a treating medical professional. This is inherently confidential.

90. This conclusion is reinforced by the procedures in place by the respondent to protect the Confidential Documents from unauthorised access, use or disclosure including by the respondent storing the Confidential Documents in a location where access is restricted to persons holding particular offices or positions, or to persons who hold a key to the locked storage.

91. The mere fact that FCZ was present at the time some of the medical assessments occurred, does not mean that the medical reports and records are not confidential. FCZ was not present in all of the examinations and interviews and the opinions expressed by medical practitioners concerning FCZ’s daughter in the Confidential Documents may not have been discussed with FCZ.

92. In addition, even though the respondent provided some medical records to FCZ in January 2021 (on the presentation of a Medicare card which included the names of FCZ and her daughter), this does not undermine the confidential nature of the Confidential Documents.

93. The Confidential Documents for which the respondent seeks an order under s 59 are the same documents FCZ seeks access to in the substantive proceedings. To provide access now would render the proceedings pointless. It would be desirable to preserve the position pending determination of the substantive proceeding which is being heard at the same time as this application.

94. When weighing these factors against the concept of open justice, I am satisfied that if an application were made under s 64 of the CAT Act it would be appropriate to make an order under that section prohibiting disclosure of the Confidential Documents until at least determination of the question of whether FCZ is an authorised representative for the purposes of s 8(1) of the HRIP Act.

95. Consequently, I am also satisfied that an order under s 59 should be made. This will preserve the question of whether FCZ should be granted access to the documents for final determination in the substantive proceeding.

Applicant’s application to be represented by DQB

96. On 15 December 2021, FCZ purportedly filed a Notice of Representation by email requesting that her friend, DQB, who is not a lawyer, represent FCZ at the hearing. That notice was not before the Tribunal.

97. DQB was present at the hearing via telephone and I asked her some questions about the proceedings.

Non-legal representation

98. The Tribunal has a discretion to give permission to a person other than a legal practitioner to represent a party: s 45 CAT Act.

99. Clause 32 of the Civil and Administrative Tribunal Rules 2014 (NSW) sets out the criteria to be satisfied for permission to be granted:

32   Granting and revocation of leave for a person to represent party

(1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to—

(a)  such of the following circumstances as it considers are relevant to the proceedings—

(i)  whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal,

(ii)  whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings,

(iii)  whether the proposed representative is vested with sufficient authority to bind the party, and

(b)  any other circumstances that it considers relevant…

100. Relevant to the exercise of the discretion whether to grant leave (or permission) for a lay person to represent a party is whether it would promote the interests of justice. Those interests include the interest of the party having their case put effectively; the interest of the opposite party in not having a style of representation which exacerbates cost, expense and trauma to no positive end; and the interest of the community in having disputes dealt with in a cost efficient, timely and conclusive way: Department of Justice and Attorney-General v AY [2010] NSWADTAP 17 (at [40]-[42]), see also WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271 at [69].

101. The Appeal Panel in Rodny v Stricke [2018] NSWCATAP 136 at [88] (“Rodny”) set out several considerations which may be relevant to the grant of leave including:

1. The complexity of the issues raised for determination;

2. The capacity of the individual seeking leave to be represented to understand and effectively participate in the proceedings in a manner which allows them a reasonable opportunity to be heard;

3. The need to ensure that there is no material imbalance between the parties.

102. In addition, as stated in Rodny at [82]-[86], where leave is required there is no automatic right to representation and ss 3, 36(1), 38(5)(c) of the CAT Act are also relevant to any grant of leave.

Submissions of parties

103. In this application, FCZ relied on three submissions why leave should be granted:

1. The matter concerns highly emotional and stressful material concerning, what she alleges to be, the sexual abuse of her daughter by her ex-husband.

2. English is her third language.

3. For the past couple of weeks she has become aware of unethical behaviour on the part of the Crown Solicitor and officers of the Crown’s Solicitor’s Office, especially Mr McDonnell and Ms Azar.

104. The respondent objected to DQB representing FCZ and referred me to an email that DQB sent to the Tribunal on Wednesday 15 December 2021 at 10.30am. This email was copied to the respondent, the Attorney-General of NSW, Mr Mark Speakman SC and the Crown Solicitor, Ms Karen Smith. The heading of this email was “Urgent: Abuse of power issue”.

105. In this email, DQB made a number of contentions including that the substantive matter involved issues of corruption; that she has appeared on behalf of FCZ’s on previous occasions in the Family Court and so was very familiar with the history such that she has written about FCZ’s cases in academic papers which she is seeking to have published; and that she is extremely concerned that FCZ’s ex-husband is involved in secret correspondence with officers of the Crown Solicitor’s Office.

Consideration

106. Having regard to the factors in cl 32(1)(a)(i) and (ii), I am not satisfied that DQB has sufficient knowledge of the precise issues in dispute to represent FCZ. When I queried DQB about her knowledge, she informed me that the issues for determination were issues of corruption and also a contempt application. Given the allegations in her email correspondence, I did not have confidence that DQB would be able to deal fairly with the respondent in the proceeding.

107. Further, having regard to “other circumstances” in cl 32(1)(b), despite FCZ’s submission that as English was her third language and that made it difficult for her to represent herself, I did not perceive FCZ to have any difficulty understanding or effectively participating in the proceedings. She was articulate and easy to understand. I further note FCZ accepted that she has conducted numerous proceedings without legal representation in the Family Court.

108. If there was a material imbalance between the parties, I do not consider that having DQB represent FCZ would have resolved an imbalance, particularly given DQB’s allegations of corruption.

109. On balance I was not satisfied that leave should be granted for DQB to represent FCZ. I made an order at the hearing refusing FCZ’s application to be represented by DQB.

110. After informing FCZ that her application was refused, she informed me that she would need to have a short adjournment to consider whether to appeal or to ask me to recuse myself. I adjourned for approximately 20 minutes.

111. After the short adjournment, FCZ informed me that she might make an application for me to recuse myself as my “boss”, the current President of NCAT, was the former Crown Solicitor and the former boss of Mr McDonnell and they were both corrupt and the system was biased and unfair. However, FCZ ultimately decided that she would not ask me to recuse myself but that she wanted more time to consider whether to appeal my decision or seek an adjournment of the hearing. I further adjourned for approximately half an hour to enable FCZ to consider what application she might want to bring.

112. After the adjournment, FCZ informed me my decision was unfair and there was an unequal playing field. I gave FCZ the opportunity to make an application for an adjournment to get legal representation and to have the opportunity to appeal my decision. FCZ informed me that she would not make an application for an adjournment and that she would continue on with the hearing representing herself including for the reason that the system was corrupt and biased anyway so there was no point appealing or asking for an adjournment.

Other matters

113. For completeness, the Tribunal notes that on 10 December 2021, FCZ also made a contempt application under s 73(2) of the CAT Act to the effect that the Tribunal I make orders that the Crown Solicitor’s Office was guilty of contempt relating to the respondent’s alleged failure to lodge the Confidential Documents pursuant to s 58.

114. I refused to hear the applicant’s contempt application for the following reasons:

1. the Tribunal was not appropriately constituted to hear proceedings for contempt as required by s 27(1)(b) of the CAT Act (which requires that application to be heard by the President or any other member who is a current or former NSW judicial officer); and

2. an application for contempt must be a made separately and not as an interlocutory application in the existing proceedings: AIN v Medical Council of New South Wales [2017] NSWCATAP 21 at [18].

Orders

1. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW), no action will be taken in this matter.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the name of the applicant, her child or her ex-husband is prohibited.

3. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication or broadcast of the name of the applicant’s friend as proposed representative is prohibited

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

01 April 2022 - Representative for the Respondent corrected from "J McDonald" to "J McDonnell" on coversheet and in paragraphs [57], [58], [60], [103](3), and [111].

11 August 2022 - 11 August 2022 - Order added.

11 August 2022 – Coversheet: typographical error amended and solicitor advocate removed.

Decision last updated: 11 August 2022