Kitson v Dennerstein
[2017] VSC 381
•29 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 02315
IN THE MATTER of an application for leave to appeal under s 148 of
the Victorian Civil and Administrative Tribunal Act 1998
BETWEEN:
| KEITH KITSON | Plaintiff |
| – and – | |
| LORRAINE DENNERSTEIN | Defendant |
JUDGE: | Mukhtar AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 August 2016, 7 November 2016 |
DATE OF JUDGMENT: | 29 June 2017 |
CASE MAY BE CITED AS: | Kitson v Dennerstein |
MEDIUM NEUTRAL CITATION: | [2017] VSC 381 |
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APPEAL ― Leave to appeal from Victorian Civil and Administrative Tribunal ― Statutory requirement to apply for leave no later than 28 days after Tribunal’s order ― Deliberate decision not to seek leave to appeal ― Change of thinking ― Application filed 877 days after expiration of limitation period ― Court’s statutory discretion to extend time ― Absence of any explanation to excuse inordinate delay ― Application refused ― Victorian Civil and Administrative Tribunal Act 1998 s 148(2), (5).
MEDICAL PRACTITIONERS AND SERVICES ― Workplace compensation litigation ― Plaintiff’s attendance for medico legal report by psychiatrist ― Diagnosis of a recognised mental disorder ― Person’s statutory right of access to ‘health information’ held by health service provider ― Request for information to discover unstated matters taken into account in making diagnosis ― Apparent object of testing or questioning the diagnosis ― Impermissible statutory request ― Health Records Act 2001 s 25, 28, 29, 33.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Ms F Cockram | John W Ball & Sons, Lawyers |
HIS HONOUR:
Under s 148(2) of the Victorian Civil and Administrative Tribunal Act 1998 an application for leave to appeal to this Court, which can only be on a question of law, must be made no later than 28 days after the day of the Tribunal’s order. The Court has a discretion to extend that time limit under s 148(5).
In this case, the order of the Tribunal, in its Human Rights Division (as constituted by Senior Member, now Deputy President, Nihill), was made on 24 December 2013. The Tribunal dismissed Mr Kitson’s complaint under the Heath Records Act 2001 that the defendant, a psychiatrist, had deprived him of access to ’health information’ under the Act. Mr Kitson filed his originating motion in this Court seeking leave to appeal on 16 June 2016. That is 877 days, or about two years and four months, after the expiration of the 28 day time limit. To obtain an extension of time for such an egregious delay requires a detailed and compelling explanation, and a demonstration of an arguable case that the Tribunal made an error of law.[1] It is no less necessary to consider the prejudice to the defendant and the desideratum of finality after such a long time, to lead to the ultimate question: would a refusal of an extension of time be an injustice?
[1]See Pizer’s Annotated VCAT Act (5th Ed) 932-4. See also for example Advaland Pty Ltd v Bitcon [2015] VSC 235, [37]-[41]; and MK Builders Pty Ltd v 420 Balcombe Road Pty Ltd [2015] VSC 547.
On 9 November 2016 the Court decided, for reasons to be published afterwards, to refuse Mr Kitson’s application for an extension of time. I now publish these reasons for the refusal, which are threefold. First, Mr Kitson has no excuse for the delay. Indeed, he admits he made a conscious decision not to appeal the order, deciding and electing instead to try and achieve his objects by other means including other actions in the Tribunal, all which have failed abjectly. On that cardinal ground alone, the application would be refused. Secondly, and anyway, the decision of the Tribunal is not in my view attended with any doubt. What Mr Kitson sought to do was unattainable under the Act or ulterior to it, and I think the Tribunal was right to refuse his application. Thirdly, the interests of finality must prevail here. Justice calls for a refusal of the application to put an end to what has been, at his hands alone, a very protracted matter.
After the Court announced its decision, on 24 November 2016 Judge Harbison as Vice President of the Tribunal made an extended litigation restraint order against Mr Kitson under s 17 of the Vexatious Proceedings Act 2014. Her Honour was satisfied that Mr Kitson ‘has frequently commenced or conducted vexatious proceedings’ in the Tribunal against the defendant and three other medical practitioners who came into contact with him in various ways in 2010.[2] Although that order does not affect his entitlement to have brought this prior application, an expectable strong part of the defendant’s secondary resistance to this application (the primary resistance being the intolerable and prejudicial delay) made necessary reference to the multitude of failed complaints made by Mr Kitson to the Health Services Commissioner and then to the Tribunal to pursue information from the defendant under the Health Records Act.
[2]Sheehan, Cole, Puszet and Dennerstein v Kitson [2016] VCAT 1964.
The font of Mr Kitson’s complaint is County Court litigation commenced by him in 2009 for a workplace injury. The details of that claim are not given to the Court and are immaterial. The defendant is a Professor Emeritus at the University of Melbourne and a Fellow of the Royal Australian and New Zealand College of Psychiatrists. She has practised as a specialist psychiatrist for 36 years, and takes consultations to make medico-legal reports. The insurer for the defendant in the County Court litigation engaged her to make a health assessment of Mr Kitson and to produce a report for possible use in Court. Mr Kitson attended one appointment with her on 13 August 2010. She produced a report dated 19 August 2010. Her diagnosis was that Mr Kitson suffered from a narcissistic personality disorder. Later that month Mr Kitson settled his WorkCover claim at mediation. Therefore, her report was not presented to the Court, and she was not required to give evidence.
If the case is over, and the defendant’s diagnosis came not to be propounded or tested in Court, what is the remaining issue under the Heath Records Act? It wold be rather well known in medico legal litigation that psychiatric diagnoses are made or classified by reference to criteria in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association. The fourth edition of that manual is referred to as DSM IV. Mr Kitson complains that Professor Dennerstein’s report did not identify or reveal, within it, the specific DSM IV criteria on which her diagnosis was made. And he wants to now gain information, by force or means of the Health Records Act, to see if and what criteria under the DSM IV were applied by her in stating her diagnosis in the report. That is, he is looking for information to see if her opinion can be substantiated by specific reference to DSM IV.
The materials before the Court include some correspondence between Mr Kitson and Professor Dennerstein between October 2012 to December 2012. To help refine the issue I shall isolate the relevant part of a letter he sent to her in 28 October 2012[3] ― two years after her report ― which reveals Mr Kitson’s pursuit under the Health Records Act. His letter said :
[3]Annexure H to the respondent’s submissions.
As you – undoubtedly – hold a copy of you ‘expert witness’ report, being ‘health information’ as defined by the Act, you are obliged to observe the requirements of the Act in regard to affording access to the information in your possession or control.
…
With your extensive experience as an “expert witness” you will – undoubtedly – be familiar with your obligation to the courts (as distinct from your client), in particular in regard to presenting impartial and accurate information based on your own personal observations and investigations.
You will recall that – at commencement of the interview – you declared that the one-hour time frame allotted for the interview was grossly inadequate to enable you to conduct sufficient ‘examination’ to enable you to draw any reliable conclusion(s).
You showed no interest in rescheduling the interview for a more appropriate time and length.
On examination of your report I find an inordinate number of discrepancies and errors of fact.
It is immediately noted that you have reported my date of birth incorrectly.
You have inaccurately presented material I related to you at interview, in particular various matters you present as my ‘Past History’ (sic).
You declare your ‘personal’ diagnosis of “Narcissistic Personality Disorder”.
With your qualifications and experience you will be aware that DSM-IV is the industry recognised ‘manual’ for defining diagnoses. You will be aware that for each diagnosis DSM-IV details specific criteria without which the diagnosis cannot be sustained and-or recognised by competent medical professionals.
You acknowledge that you have been requested/instructed – by your client – as follows:
Your diagnosis and prognosis. If the plaintiff has a current psychiatric diagnosis, please express this in DSM-IV terms, outlining the specific criteria satisfied to make this diagnosis, and commenting on the severity of his condition.
As best as can be determined you have failed to identify and/or reveal – within your report to the Court – the “specific (DSM-IV) criteria satisfied to make (any) diagnosis.”
You expend numerous pages quoting from and referring to (and presumably relying upon) various reports of other practitioners – who, in the main, provide/reveal no substantiating evidence (as per DSM-IV) for their ‘opinions’ – without concern for the accuracy of same.
…
Seemingly you do not consider DMS-IV diagnostic criteria – ie substantiating evidence – to be relevant to the Court’s consideration of the matter or, more immediately, to the substantiation of “your” diagnosis. It appears that you believe the court has no interest in, or reason to be afforded access to, the specific criteria (pursuant to DMS-IV) satisfied to make (your) diagnosis.
…
In particular, and pursuant to the Act, I would be very interested to receive any and all “specific criteria (pursuant to DSM-IV) satisfied to make (your) diagnosis” and which you arrived at/discovered/determined/revealed from information derived directly from myself, as required of an independent ‘expert witness’ – and reasonably expected of a professional and competent medical practitioner.
…
Another letter dated 2 December 2012[4] helps understand his contention a little better and his interrogative pursuit of information to ‘substantiate and support‘ the diagnosis. He there stated:
[4]Ibid.
…
You seem to suggest that you are unclear as to the nature/identity of the health information to which I have requested access. Your apparent request for clarification comes some 28 days after the initial request for access.
I believe I have clearly defined the aforementioned health information in my correspondence dated 28 October 1012, however, for your benefit, I repeat that I request access to:
all records and material of any nature, in your possession or control, which you purport to substantiate and or support your expressed ‘diagnosis’, ie those which record the specific (DSM-IV) criteria satisfied to make your personal diagnosis.
It has already been noted that your report to the Court, dated 19 August 2010, does not reveal – or even suggest – any specific (DSM-IV) criteria satisfied to make your personal diagnosis. The (third party) documents to which you refer in your report afford no specific (DMS-IV) criteria satisfied to make your personal diagnosis. As you have not collected the information contained with said documents directly from the subject, in regard to your own ‘investigations’ the reports and opinions of third parties amount to nothing more than hearsay.
It is reasonable to assume, and to expect, that a competent, professional medical practitioner – especially one engaged to act in the role of ‘expert witness’ – will record and retain any and all evidence upon which their ‘professional opinion’ is based and relies.
As I have yet to be afforded access of any nature to my health information held by you, you are required to clearly identify all health information which falls within the description of that requested – or to state that no such health information exists.
…
However, it will be eminently feasible for a competent qualified professional to comment on whether the “specific (DSM-IV) criteria” presented in your records – having been gathered directly from the subject – satisfies (any of) the prerequisites of such a diagnosis. To that end you are required to identify and afford access to all health information which, in any manner, incorporates and/or reveals the specific (DSM-IV) criteria satisfied to make your personal diagnosis.
Your reluctance to substantiate your “professional opinion” is noted and recorded for future reference/evidence.
Of particular interest to me (and any Court) is the existence – or otherwise – and source of any and all ‘evidence’ relating to “specific (DSM-IV) criteria” and presented in your records, and upon which you rely in forming your ‘personal diagnosis’.
To assist in your comprehension of my request, I suggest you consider and address the following:
1.Do you hold or have you ever held records/items of my health information which incorporate and/or reveal the specific (DMS‑IV) criteria satisfied to make your personal diagnosis, such ‘evidence’ of relevant symptoms having been obtained by you directly from myself?
2.If your answer to item 1 is “Yes”, kindly clearly identify all such records/items and make appropriate arrangements to afford access to same pursuant to the Act.
3.If your answer it item 1 is “No”, kindly clearly advise accordingly by sworn statement.
4.Do you hold or have you ever held records/items of my health information which incorporate and/or reveal the specific (DSM-IV) criteria satisfied to make your personal diagnosis, such ‘evidence’ of relevant symptoms having been obtained by a suitably qualified third party directly from myself’.
5.If your answer to item 4 is “Yes”, kindly clearly identify all such records/items and make appropriate arrangements to afford access to same pursuant to the Act.
6.If your answer to item 4 is “No”, kindly clearly advise accordingly by sworn statement.
You are reminded that I retain my audio record of our entire meeting as reference and evidence, should the need arise.
Your reluctance to provide the information sought of you strongly suggests you are unable to substantiate your ‘diagnosis’, in any recognised professional manner.
There was more correspondence all to the same effect, and responses from the defendant to which I need not refer. What matters is that the Tribunal found, on the evidence that Professor Dennerstein gave him a copy of her whole file. It comprised 33 pages including 13 pages of handwritten notes and the 14 page medical report. Mr Kitson was free to take the health information as provided by her to any other medical practitioner for appraisal. The Tribunal also found, on the evidence, that the health information given to him was all of the health information about him that she had. It found no health information was being withheld by her. Those factual findings based on evidence are incapable of challenge. Before the Tribunal, Mr Kitson agreed he has seen and was given the opportunity to accept copies of that heath information. The Tribunal had evidence from the defendant that there were other medical reports provided to her by the insurer’s lawyers as referred to in her report. She did not keep copies of them but they were obtainable from the practitioners who wrote them.
On the facts, it is plain that Mr Kitson’s purpose was to obtain information in aid of testing the impeachability of the defendant’s opinion. The Tribunal decided –
The HR Act does not require Professor Dennerstein to justify or provide further detail as to her diagnosis. … In my view, Mr Kitson, in seeking to have Professor Dennerstein analyse and provide further detail as to her diagnosis, is seeking to achieve an outcome beyond that contemplated by the HR Act. He is seeking to rely on the HR Act to meet an objective that is beyond its reach.
It follows that I find I do not have the jurisdiction to make the orders sought by Mr Kitson. Professor Dennerstein has responded to the request made by Mr Kitson for access to his health information. She has provided full and complete access. There is in my view, nothing more that the HR Act requires her to do.[5]
[5]Kitson v Dennerstein (Human Rights) [2013] VCAT 2189 [28]-[29].
So how is it that Mr Kitson says in this Court that the Tribunal’s order ‘…will subvert the meaning and intent and application of the HR Act and perpetuate gross injustice’ and that ‘…rectification of the Order… is of general and public interest and importance’? [6] As noted by the Tribunal ‘His complaint is that he does not want the whole of the health information, but only specific information, that is anything relied upon by Professor Dennerstein in making the diagnosis set out in the report’.[7] As explained to me, his argument, abstruse I think, is as follows. He says the purpose of seeking access to health information is irrelevant if the Act entitles a person access to health information. That general proposition can be accepted, but it begs the question of what ‘health information’ the person is entitled to under the Act; and that question is the issue and the basis of the Tribunal’s decision. Then he says, ‘health information’ under the Act is information ‘about’ the ‘physical, mental or psychological health (at any time) of an individual’ and he says the word ‘about’ gives him an entitlement of what he termed a subset of information. He contends it is not enough that the defendant just hand over the file; she must identify if there are documents in that file that reveal the specific DSM IV criteria that were considered, and satisfied, to make the diagnosis. As the medical report does not do so on its face, he says if the defendant did apply the DSM IV criteria there expectably would be some other material in the file revealing that; but if not, the defendant should say so. Put another way in my words: ‘I want documents showing whether you did or did not apply the DSM IV criteria and how the criteria were satisfied; it is not enough to produce the whole file and say that is the only health information that exists and shows you all there is to show in documented form the health information.’
[6]His first affidavit, sworn 16 June 2016.
[7]Kitson v Dennerstein (Human Rights) [2013] VCAT 2189 [21].
I turn to the relevant parts of the Act.
The purpose of the Health Records Act 2001 as stated in s 1 is this:
The purpose of this Act is to promote fair and responsible handling of health information by –
(a)protecting the privacy of an individual’s health information that is held in the public and private sectors; and
(b)providing individuals with a right of access to their health information; and
(c)providing an accessible framework for the resolution of complaints regarding the handling of health information.
The Act contains a body of Health Privacy Principles each of which is identified by number as ‘HPP’ in Schedule 1 of the Act. In general, the HPPs apply in relation to the use, holding and disclosure of health information.
There is a right of access to health information. It is conferred under s 25(1) which states that: ‘Subject to sub-sections (2) and (3), an individual has a right of access, in accordance with this Part and HPP 6, to health information relating to the individual held by a health service provider or any other organisation.’ HPP 6.1 states in part: ‘If an organisation holds health information about an individual, it must provide the individual with access to the information on request by the individual in accordance with Part 5’. It is very important to understand the legislation is about providing access to information held by, in this case, a psychiatrist.
‘Health information’ is defined in section 3(1) to mean where relevant for present purposes:
health information means—
(a) information or an opinion about—
(i)the physical, mental or psychological health (at any time) of an individual; or
(ii) a disability (at any time) of an individual; or
(iii)an individual's expressed wishes about the future provision of health services to him or her; or
(iv) a health service provided, or to be provided, to an individual—
that is also personal information; or
(b)other personal information collected to provide, or in providing, a health service; or
…
‘Health service’ is defined to mean where relevant for present purposes:
health service means—
(a)an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or the organisation performing it—
(i) to assess, maintain or improve the individual’s health; or
(ii) to diagnose the individual’s illness, injury or disability; or
(iii)to treat the individual’s illness, injury or disability or suspected illness, injury or disability; or
…
The process for requesting access is stated in the provisions of Part 5 Division 2 of the Act. In essence, an individual who has a right of access to health information may request the information holder to provide access to it.[8] The request must amongst other things identify health information sought, specify the way in which access is sought; that is, whether it be by inspection, by a print-out of information stored in electronic form, by a copy of the health information or by viewing the health information and having its content explained.
[8]Section 33(1).
The task for this Court is not to decide the appeal. I am at the threshold stage of considering whether the Tribunal’s decision is attended with sufficient doubt as one factor for possibly granting an extension of time, putting to one side my view that there is no excuse for the egregious and prejudicial delay. The Act and Health Privacy Principle 6 is about access to health information about someone. It is not about evaluating or testing the information for which access has been given. How Professor Dennerstein came to her diagnosis is presumably stated in her report the contents of which did not come to be tested in the litigation. The foundation of her thinking and then her opinion presumably is a product of her knowledge and experience for which she was engaged and willing to give evidence if the matter proceeded to trial. She may have consulted DSM IV or held a retained store of knowledge about it anyway or cerebrated about it as part of a coming to a diagnosis without producing something in writing about it. As I see it, Mr Kitson is looking for ‘health information’ under the Act to understand her cogitations in reaching her diagnosis or, as Mr Kitson put it, to get a ‘sub-set’ of information about the diagnosis. He may speculate that if a practitioner makes a diagnosis then somewhere in the file there will be some criteria that supports that diagnosis. It depends on the practitioner, the opinion and the subject matter. A diagnosis of narcissistic personality disorder may involve criteria so well-known and recognisable and used in applied or clinical psychology that a practitioner sees fit to give an opinion without reference to DSM IV. Mr Kitson has no right to test her opinion outside the litigation, which never proceeded. So he looks to the Health Records Act in an attempt to see how the diagnosis was reached.
The Act is concerned with access to information as it exists. The incontrovertible fact is that all medical records have been handed over. He is assuming the diagnosis could not have been reached unless there was ‘somewhere in the file’ some documented criteria that supports the diagnosis. There can be criteria to support the diagnosis but that does not necessarily manifest itself in documents on the medical file. The Act is concerned only with available information. He has obtained the available information. And that is why the Tribunal held, correctly in my view — as a concomitant to its primary finding that the respondent had done all that the law required — that his residual pursuit of so called ‘health information’ was outside or ulterior to the Act and therefore outside the jurisdiction of the Tribunal.
I turn back now to the question of delay which I would hold disqualified Mr Kitson’s application for an extension anyway.
This application went over two separate days. Mr Kitson’s primary affidavit in support of the application, sworn 16 June 2016, said nothing at all to explain the delay. He does not rely on mistake or ignorance or some supervening or extenuating factor. After the application was adjourned part heard, a second affidavit sworn 2 November 2016 was the opportunity to explain himself, but nothing more was said. That second affidavit was riddled with argument, commentary and irrelevancies. Despite all that, I was willing to hear any explanation he had for the delay, and pressed him for one. This is what emerged. The Court has its own transcript, not professionally prepared, from a recording of the proceeding.
First, Mr Kitson said in Court ‘… I agree with you that on the surface there doesn’t appear at this point to be much acceptable excuse as to why it’s taken so long’, but said he was looking to convince the Court there was a good reason to proceed with the appeal. Secondly, he said he had difficulty in getting information on how to go about lodging an appeal. That is very hard to accept given the effluxion of time and his long experience as a complainant. In any case this explanation is shown to be untrue by his third explanation, on which I shall concentrate.
Mr Kitson told the Court ‘There was a deliberate decision at that time because I felt that my objective could be achieved via other avenues’ and that the situation he had now obtained had ‘arisen as a result of that unfortunate bad decision on my part’. That was a crucial and highly inimical revelation. He said that having been denied access to health information, he as a lay person weighed up the costs of bringing an appeal to the Supreme Court and decided instead, he says on the advice of the Health Commissioner, to issue a request for health information under Health Privacy Principle 11 under the Act to lead to the same result. Principle 11 obliges a health service provider, on request, and on payment of a prescribed fee, to provide health information to another health service provider. That is done to enable a person to have another practitioner look at the health information to assist an understanding of the health information.
It is not very clear to me what actual steps Mr Kitson took on the faith of Principle 11, but I gather he later made three complaints to the Health Services Commissioner under s 45 of the Act. The Commissioner subsequently declined to entertain the complaints under s 51 of the Act. Mr Kitson then required the Commissioner to refer the three complaints to the Tribunal under s 51(2) and s 74 of the Act thus creating the third, fourth and fifth proceedings in the VCAT against Professor Dennerstein all concerning the same issue about the health information as had already been decided by Senior Member Nihill in December 2013 which, it has to be kept steadily in mind, is the decision for which Mr Kitson seeks an extension of time to appeal. For that apparent reason, Professor Dennerstein then brought an application for summary dismissal of those three applications under s 75 of the VCAT Act as being frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The foundation of the application was that the issue in all three proceedings had already been decided by Senior Member Nihill; that is, the request for information was misconceived as being beyond the reach of the Health Records Act. On 3 June 2015 Member Dea granted those applications and summarily dismissed the three proceedings. Member Dea found that the applications were an abuse of process. I shall confine myself to referring to these paragraphs of the Member’s reasons:[9]
[9]Kitson v Dennerstein (Human Rights) VCAT 783 (3 June 2015).
73I am satisfied that, even leaving to one side whether Mr Kitson seeks to have the diagnosis explained or substantiated or have the source of the diagnosis identified, he is not entitled under the HR Act to require the provision of what he terms the ‘sufficiently identified subset of health information reasonably believed to exist.’ DP Nihill found that Prof Dennerstein was under no obligation to identify such a set of documents and that, by providing a complete copy of all health records held, she had met Mr Kitson’s access request. Further, it seems to me that, where all records are already held, Mr Kitson’s request calls either for Prof Dennerstein to highlight or annotate the documents or create a new document setting out the specific health information sought. That would be the same as analysing and detailing further material which DP Nihill found is not required under the HR Act.
74Issue estoppel applies to these circumstances because the Tribunal has already, in proceeding 1, considered and made findings about a request for the same health information which is sought in each of proceedings 3, 4 and 5. Mr Kitson cannot raise that matter again as the question of whether Prof Dennerstein is required to identify a subset of the health information contained in the documents for the purposes of providing access under section 33(3)(b) of the HR Act has been decided.
75While Mr Kitson has emphasised the fact that he has sought to make use of different access methods on each occasion, I do not consider that is material. That is because, irrespective of the method of access, the Tribunal has found that he has no entitlement to access the health information he has defined and it is that defined health information which is at the heart of his access requests and these three proceedings.
76This conclusion is a sufficient basis to determine that the entirety of the three proceedings are misconceived and lacking in substance under section 75(1)(a) of the VCAT Act and so ought to be dismissed.
…
105It seems to me that, despite his denials, what Mr Kitson seeks is either a medical consultation or an opportunity to put to Prof Dennerstein in person his views about her diagnosis and to seek a change. In the absence of any suggestion in the HR Act that a medical practitioner who has previously had dealings with an individual is compelled to be available for such a discussion, I consider an explanation of health information of that kind to be beyond the obligations created by the HR Act.
…
110Taking all of these matters together with material such as the interrogatories, I find it to be more probable than not that Mr Kitson’s motivation has been to trouble Prof Dennerstein by bringing multiple complaints and proceedings and by finding new ways to re-litigate essentially the same issue. I find that Mr Kitson is seeking to use the HR Act to address his grievances with Prof Dennerstein about the content of her report, her diagnosis and opinions and her refusal to accede to his requests. That is not a proper use of the HSC process or of proceedings in the Tribunal.
…
112While Mr Kitson’s concerns are not said to be more appropriately dealt with under another Act, it is my view that, like Mr Reaper, he seeks to use the HR Act as a means to achieve an outcome beyond its scope. The nature of the HR Act, and the HPPs in particular, tend to allow for the construction of complaints relying on different provisions or HPPs where in truth the complaint arises from the same circumstances or is directed at the same purpose.
...
114Mr Kitson claims that his concerns are about significantly different forms of interferences with privacy arising from the same health information held by the same person. I do not accept that position for the reasons already given in respect of the content and nature of the access requests he has made. Further, the fact that he can construct arguments relying on different provisions and HPPs does not of itself make the nature of the proceedings different or appropriate. This is particularly so in circumstances where I have found that they have been brought to address his grievances with Prof Dennerstein about the content of her report, her diagnosis and opinions and her refusal to accede to his requests.
On 27 October 2015, Member Dea ordered Mr Kitson to pay the costs of Professor Dennerstein.[10] I think it not unreasonable for counsel for the defendant to apprehend that the application to this Court is an attempt to undo the decision to then collaterally and retroactively undo all other dependant decisions including the costs orders.
[10][2015] VCAT 1703.
Those facts expose vividly, I think, the untenable position Mr Kitson has taken on this application. He deliberately chose not to appeal the order of Senior Member Nihill made on 24 December 2013 because he decided to pursue his object in three new proceedings. They all failed as an abuse of process, and he was ordered to pay costs, which would be unusual in the Human Rights Division in VCAT for a self-represented litigant. They failed because the issue had already been decided in the December 2013 decision of Senior Member Nihill. Then more than 8 months after Member Dea’s costs order, Mr Kitson filed his motion in this Court for leave to appeal the decision in December 2013 that he had previously decided not to appeal. On the first day of hearing, Mr Kitson said he had intended to appeal Member Dea’s summary dismissal decision but after taking advice about the prospects of success, he eventually decided it was more appropriate to appeal the earlier decision of Senior Member Nihill.
I think all those facts demonstrate he has no explanation excusing or extenuating his gross delay. He decided not to appeal and ought to be conscientiously held to that. In the circumstances as I have exposed them, I think he has forfeited any possible means to contend that he ought be given an extension of time. Moreover, to extend time would be manifestly unfair and prejudicial to Professor Dennerstein. As the Tribunal has remarked ‘Mr Kitson’s motivation has been to trouble Prof Dennerstein by bringing multiple complaints and proceedings and by finding new ways to re-litigate essentially the same issue…’[11]
[11][2015] VCAT 783, at [110].
It was for those reasons the Court refused the application.
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