Holmes, Peter v Northern Territory of Australia

[1998] FCA 1001

FEDERAL COURT OF AUSTRALIA

Administrative Law – Judicial Review – decision by delegate of HREOC on complaint that failure to provide medical records to a patient constituted discrimination against the patient – decision maker not named as a respondent – medical records given to the applicant after the decision – no continuing issue of practical significance – proceedings permanently stayed

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Disability Discrimination Act 1992 (Cth), ss 4(1), 5(1), 24, 24(2), 79(1)

Beitseen & Ors v Johnson & Ors (1989) 29 IR 336
La Roche v Cormack & Ors (1991) 33 FCR 414
Mayne Nickless Limited v Transport Workers Union of Australia & Ors (unreported, Full Court Federal Court, Black CJ, von Doussa and Carr JJ, 16 July 1998)

Matter No. DG7 of 1997

PETER HOLMES v NORTHERN TERRITORY OF AUSTRALIA

VON DOUSSA J
11 AUGUST 1998
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG7  of   1997

BETWEEN:	PETER HOLMES APPLICANT
AND:	NORTHERN TERRITORY OF AUSTRALIA RESPONDENT
JUDGE:		VON DOUSSA J
DATE OF ORDER:		11 AUGUST 1998
WHERE MADE:		DARWIN

THE COURT ORDERS THAT:

The proceedings be permanently stayed with no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT

REGISTRY

 DG7 of 1997

BETWEEN:	PETER HOLMES APPLICANT
AND:	NORTHERN TERRITORY OF AUSTRALIA RESPONDENT

JUDGE:	VON DOUSSA J
DATE:	11 AUGUST 1998
PLACE:	DARWIN

REASONS FOR JUDGMENT

This matter comes before the Court on application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).The background is that Mr Holmes lodged a complaint with the Human Rights and Equal Opportunities Commission (“HREOC”) on 24 March 1994 pursuant to s 5(1) of the Disability Discrimination Act 1992 (Cth) (“the Act”) through the Disability Advocacy Service of the Northern Territory. He complained of alleged unlawful discrimination on the grounds of a perceived disability in respect of access to medical records concerning himself held by the respondent in its capacity as the authority administering the health services in the Northern Territory, and in particular the Alice Springs Hospital.

Negotiation of the complaint proved unsuccessful and an inquiry was held pursuant to s 79(1) of the Act before Commissioner McEvoy. Evidence was given before the Commissioner by Mr Holmes that he had been subject to prolonged and thoroughly unjustified police harassment and other harassment. In an effort to establish that the police harassment was unjustified he sought copies of his medical records from the Alice Springs Hospital. He had been a patient at the hospital from time to time during the years that he had lived in Alice Springs. He denied before the Commissioner that he was suffering any mental illness, and he denied suggestions, that had been made periodically, that there might be a risk of violence on his part if the medical records were released to him.

Two psychiatrists from the Alice Springs Hospital also gave evidence.  They said that they had diagnosed Mr Holmes as suffering from a mental disorder which they characterised as paranoid psychosis.  They gave evidence that they believed it was not in the interests of the health of Mr Holmes and his well-being that he be shown the hospital file.  They also expressed the opinion that there was a potential risk to hospital staff identified by the records if the files were disclosed.

I emphasise that the diagnoses and the suggestions of violence on the part of Mr Holmes have always been denied by him.  It was stressed by Mr Holmes in the course of the hearing before the Commissioner that there was no history of violence and indeed when some medical information had been released unintentionally to Mr Holmes, it did not precipitate any violence on his part.

The Commissioner, after hearing evidence and submissions over three days, delivered lengthy written reasons. Mr Holmes says that he does not agree with those reasons. In substance the Commissioner held that the provision of medical records by the hospital would be the provision of a service within the meaning of s 4(1) and for the purposes of s 24 of the Act. However, the Commissioner held that there had been neither direct nor indirect discrimination of Mr Holmes by the decision of the respondent to withhold the records, because it was in the interests of Mr Holmes that the records be withheld. That was a conclusion of fact which the Commissioner says she reached having regard to the evidence that was led before her. The Commissioner also held that s 24(2) of the Act applied so as not to render the conduct complained about unlawful discrimination because the provision of the medical records to Mr Holmes would bring about unjustified hardship to the respondent. For those reasons the Commissioner dismissed the complaint which had been made by Mr Holmes.

Mr Holmes, being dissatisfied with that decision, has brought the present proceedings. When the proceedings were issued he was represented by a legal aid body which has since withdrawn its assistance to him. The ADJR Act permits this Court to review a decision on the ground that the decision maker committed an error of law. If an error of law is identified the power of this Court would be to set aside the decision and send the matter back to the decision maker for further consideration.

This Court has no power to embark upon a reassessment of the merits of the evidence that was given before the Commissioner, or to substitute some other view of the facts.

The proceedings commenced in this Court have named the Northern Territory of Australia as the respondent. The Northern Territory of Australia is named in its capacity as the authority administrating the medical health system responsible for the relevant medical records. Early in the proceedings a Judge of this Court directed that the matter be referred to a Registrar to determine what papers were to be prepared for the hearing. The Registrar initially took the view that the grounds of review required the Court to have before it all the evidence taken before the Commissioner and all the exhibits. That view was taken because not only would it be necessary to have some knowledge of the facts to determine whether errors of law relating to the interpretation of the Act had occurred, but more importantly, because it is alleged in the application that the exercise of power, that is the making of the particular decision by the Commissioner, was unreasonable and unjustified by the material before her. It is not possible to consider a complaint of that kind without thoroughly investigating what the evidence was.

The parties, however, apparently persuaded the Registrar that there was no need to have that material before the Court.  I am informed by Mr Grant, counsel for the respondent, that directions were issued by a Registrar for the preparation of a more confined transcript book for use today, but those directions are not presently on the Darwin file.  More importantly no papers have been filed and I have seen none of the papers that were before the Commissioner.  If it were otherwise possible to proceed with the hearing today I would be inhibited because I do not have the factual material that lies behind the reasons for decision.

There is another fundamental problem with the proceedings which I pointed out to the parties today. HREOC, as the decision maker, should have been the respondent to the proceedings. Whilst it is understandable that the Northern Territory of Australia would be involved as a party interested, it is critical in a case like this that the decision maker be present. The Northern Territory of Australia has indicated that it would argue against there being any error by the Commissioner in her interpretation and application of ss 4 and 24 of the Act insofar as the Commissioner held that there was no unlawful discrimination. The Northern Territory of Australia, however, does not propose to argue against the conclusion that the provision of medical reports by the hospital would be a “service” within the meaning of the Act. Although the Commissioner held that such a provision would be a service it seems to me that that is a most important issue of wide application and an issue upon which HREOC may have views that differ from the Northern Territory of Australia. In my opinion if the application were to be heard and determined it would be critical that HREOC be a party to these proceedings and for HREOC to have the opportunity to assist the Court in the proper interpretation of the Act. As HREOC has not been named as a party that is another reason why these proceedings cannot go ahead in their present form.

Those are procedural technicalities which given time and enough money could be overcome.  However, there are other events which had occurred in the meantime.  Once these proceedings were initiated the authorities with custody of the hospital records at the Alice Springs Hospital apparently had a change of heart as to the wisdom of withholding the records from Mr Holmes.  An offer was made to allow him to see them, and that offer was then extended to providing him with a copy and in addition with the assistance of a doctor to inform him about terms used if he required that assistance.

In short, the medical records have now been made available and to that extent Mr Holmes has vindicated his position.  That which he sought to achieve, namely the provision of the hospital records to him, has occurred.

Whilst Mr Holmes may not see that as a complete victory, it is a significant one on his part. Because the records have been produced the Northern Territory of Australia has put in written submissions to the effect that this Court should not proceed to hear an application under the ADJR Act in any event because there is no longer any controversy between the parties, that is between Mr Holmes and the Northern Territory, over the provision of the hospital records. There is no practical significance in continuing with the application.

Mr Holmes has appeared and explained to the Court today his concerns and his distress over what has happened over the last few years.  He kindly produced a lengthy hand-written document that summarised all the distressing events that he has been through.  The Court asked him what he now hoped to achieve by going on with these proceedings and he said that he wanted to stop the corruption that he thinks exists in the administration in the Northern Territory.  He wants to stop the police following him and continuing the harassment about which he has been complaining for a long time.  He repeats a complaint that he has made on many occasions that if he goes to the police and informs them that he is being followed and that he would like the police harassment to stop, the police simply do not believe him that it is occurring and say that he is suffering paranoia.  So he finds himself in a difficult situation which, understandably, he would like to have removed.

The Court has endeavoured to explain to Mr Holmes that in these proceedings, even if he were to correct the procedural shortcomings, neither this Court, not if he were successful here, HREOC at a rehearing, could address those concerns which I have just mentioned.

The only issue that was raised by the initial complaint to HREOC, and more recently to this Court, concerns the provision of the medical records to him.  Those records have now been provided.  That particular topic of complaint is now resolved, and in these proceedings there is no remaining issue which could usefully be pursued by the Court.

This Court on a number of occasions has emphasised that it should not embark upon the hearing and determination of matters that have become moot and no longer have any practical or legal significance.  See Beitseen & Ors v Johnson & Ors (1989) 29 IR 336, at 337 and 338; La Roche v Cormack & Ors (1991) 33 FCR 414 and Mayne Nickless Limited v Transport Workers Union of Australia & Ors (unreported, Full Court Federal Court, Black CJ, von Doussa and Carr JJ, 16 July 1998).  In my opinion because the medical reports have now been provided there is no real issue that can be usefully pursued in these proceedings.  Because the proceedings are not properly constituted at the moment and because even if Mr Holmes were prepared to spend a substantial part of his pension in rectifying the procedural difficulties, the Court could not give him the remedies that he presently seeks, I think the proper order of the Court is that these proceedings be permanently stayed with no order as to costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice  von Doussa J

Associate:
Dated:             11/08/98

The applicant appeared in person
Counsel for the Respondent:	Mr M Grant
Solicitor for the Respondent:	Solicitor for the Northern Territory
Date of Hearing:	11 August 1998
Date of Judgment:	11 August 1998