JT v Technical and Further Education Commission
[2011] NSWADT 63
•23 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: JT v Technical and Further Education Commission [2011] NSWADT 63 Hearing dates: 23 March 2011 Decision date: 23 March 2011 Before: S Montgomery, Judicial Member Decision: The Summons issued on 16 February 2011 is set aside.
Catchwords: Summons to produce documents - legitimate forensic purpose Legislation Cited: Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998Cases Cited: QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54 Category: Interlocutory applications Parties: JT (Applicant)
Technical and Further Education Commission (Respondent)Representation: Counsel
P Ginters (Respondent)
JT (Applicant in person)
File Number(s): 083301 Publication restriction: Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the applicant.
reasons for decision
In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as JT. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.
The Applicant has applied to the Tribunal for review of a decision of the respondent concerning alleged breaches of the Privacy and Personal Information Protection Act 1998 ("PPIP Act") and the Health Records and Information Privacy Act 2002 ("HRIP Act"). The Applicant 's allegations concern conduct of a number of officers employed by the respondent.
In February 2011 JT requested that the Registrar issue a summons requiring that the Respondent produce the following to the Tribunal:
1. A Copy (including those in electronic and printed form) of all correspondence (including Telstra and mobile statement), notes, records of meetings and records of telephone discussions between [Ms S] and the counsellor's office at [the] TAFE regarding [JT] that have been kept by the respondent for the period between 2 February 2005 and 17 February 2005;
2. A Copy (including those in electronic and printed form) of all correspondence (including Telstra and mobile statement), notes, records of meetings and records of telephone discussions between [Ms G] and [Mr C] regarding [JT] that have been kept by the respondent for the period between 2 February 2005 and 17 February 2005;
3. A Copy (including those in electronic and printed form) of all correspondence (including Telstra and mobile statement), notes, records of meetings and records of telephone discussions between [Ms G] and [Ms S] regarding [JT] that have been kept by the respondent between 2 February 2005 and 17 February 2005;
4. A copy of all counselling records for [JT] including but not limited to notes, minutes from weekly meetings, records of any meetings between any counsellors and [Mr C] and/or [Ms G] for the period between 2 February 2005 and 30 June 2005.
5. A copy of all counselling records for [JT] including but not limited to notes, minutes from weekly meetings, records of any meetings between any counsellors and [Ms G] and/or [Ms S] for the period between 1 February 2004 and 30 June 2005.
6. A copy of all meeting records for [JT] including but not limited to notes, minutes from the meetings, records of any meetings between "Susan" (on email 4 February 2005) and [Ms B] for the period between 3 February 2005 and 30 June 2005.
The Respondent has brought an application for an order that the summons be set aside. It says that the documents sought are irrelevant to matters in issue in the proceedings and do not serve a legitimate forensic purpose. It says that the summons amount to no more than a fishing expedition in that it does not seek documents to prove the Applicant's case as pressed but, rather, the Applicant seeks to trawl through the Respondent's documents to see if he has a case at all.
Scope of the Applicant's case
The scope of the Applicant's case was settled in correspondence dated 9 August 2010 ("the 9 August letter") from the solicitors acting for the Applicant to the Crown Solicitor. The Applicant's solicitors confirmed that the Applicant restricts his claim to the loss and damage suffered by reason of the contravention referred to in paragraph 33 of his points of claim filed on 18 December 2008. Paragraph 33 of the Points of Claim alleges:
On 4 February 2005, [Ms S] sent an email to [Ms B] that stated that the respondent spoke with [Ms G] in the morning to find out if the counseling [sic] unit had a file on the respondent[sic] which could be accessed by the staff. The file existed and [Ms G] indicated that she would alert [Mr C] to this file prior to the Monday Meeting ([Mr C] is a new recruit to [the TAFE]). The email also stated that "Maria was most supportive of our situation regarding his case".
The Applicant asserts that the 9 August letter was sent without instructions and that he was not informed of the correspondence between the parties. The solicitors who wrote that letter no longer act for the Applicant.
In my view, the Applicant is bound by the advice provided to the Respondent in the 9 August letter. It is not in dispute that the solicitors who wrote that letter were acting for the Applicant at the time and the Respondent was entitled to rely on the advice as accurate. It follows that the Applicant's case is limited to the allegation contained in paragraph 33 of his points of claim.
The Applicant's submissions
The Applicant asserted that the documents he seeks are necessary for fairly disposing of the matter.
He said that he has reason to believe that Ms S contacted his psychologist, Ms G and that Ms G had contacted Mr C and that they colluded to write false comments about him in his counselling file. He also believes that Mr C gave a number of TAFE staff members unauthorised access to the counselling file.
He believes that the documents he seeks will confirm his suspicions.
Principles to be applied
I recently considered the principles that will guide the Tribunal in its consideration of the application to set aside the summons in QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54. In that matter I referred to a number of authorities which have identified those principles. I will not repeat them here. Mr Ginters has summarised the relevant consideration as follows:
(a) The proceedings are of limited compass.
(b) This is not a case where the issue is one of voluntary disclosure. Rather, the Applicant is seeking the exercise of the Tribunal's coercive powers to compel the Respondent's production of documents.
(c) It is necessary for a summons to state with reasonable particularity the documents which are to be produced.
(d) Where a summons is challenged on the ground(s) that it lacks a legitimate forensic purpose, the onus falls on the issuing party "to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought."
(e) A summons which does not serve a legitimate forensic purpose is liable to be set aside.
(f) There are two elements to the requirement that a summons must be issued for a legitimate forensic purpose.
(g) First, it is not sufficient for a party seeking production pursuant to a summons to merely establish that the documents sought are or may be relevant.
(h) Merely because a document is relevant, or opens up a new line of inquiry, does not make it necessary for fairly disposing of the cause in a matter.
(i) The party seeking production is not entitled to have access to such documents simply to see whether the documents assist their case.
(j) Secondly, the Tribunal must have some concrete ground for belief that the documents sought in the summons will materially assist the case of the party issuing the summons which takes the case beyond a mere fishing expedition.
(k) It is not legitimate to use a summons for the purpose of discovery, whether it is addressed to a stranger to the proceedings or a party to the proceeding. This is all the more the case in proceedings in the Tribunal where discovery is not available.
I agree with that summary.
I also agree with the Respondent's contention that there are only two issues before the Tribunal i.e. firstly, whether the Respondent allowed the Applicant's personal and health information as contained in his counselling file to be used for a purpose other than that for which it was collected and secondly, whether there were in place security safeguards that were reasonable in the circumstances to ensure that the Applicant's personal and health information contained in his counselling file was protected against loss, unauthorised access, use, modification or disclosure or other misuse.
I note that the Applicant has been provided access to his counselling file and has had the opportunity to read all the documents contained in that file, including the record of all persons who had accessed the file.
JT must identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. He must provide some concrete ground for belief that the documents sought in the summons will materially assist his case. In my view, he has not done so. He merely suspects that there will be documents that might assist his case. He is not entitled to have access to the documents simply to see whether they will assist his case. It follows that the summons should be set aside.
Costs
The Respondent also sought an order that the Applicant pay its costs in relation to responding to the summons and making documents available to the Tribunal for its inspection.
This application will be considered at the hearing in the substantive matter.
Order
The Summons issued on 16 February 2011 is set aside.
**********
Decision last updated: 30 March 2011
1
1
2