L, N v Central Adelaide Local Health Network Inc - [2014] SADC 18

District Court of South Australia
(Civil)
L, N v CENTRAL ADELAIDE LOCAL HEALTH NETWORK INC
[2014] SADC 18
Judgment of His Honour Judge Slattery (ex tempore)
25 October 2013
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
Appeal from determination of the Ombudsman under Freedom of Information Act affirming a determination of the respondent – appellant disputes the accuracy of records of the respondent relating to attendance at, and other records of, a specialised clinic that is part of the respondent’s operation - no cogent reason to depart from the determination of the Ombudsman.
Held: Appeal dismissed.
Freedom of Information Act 1991 s19, s23, s29, s30, s31, s34, s35, s36, s38, s49; District Court Act s39, s42E , referred to.
Minister for Education and Child Development v Chapman [2013] SADC 130, discussed.

L, N v CENTRAL ADELAIDE LOCAL HEALTH NETWORK INC
[2014] SADC 18
JUDGE SLATTERY

By a document dated 6 June 2013 FDN1, N.L. (the appellant) brings an action against the Central Adelaide Health Network Inc. (the respondent) in respect to a matter arising under the Freedom of Information Act 1991 (the Act).
The terms of the appeal are as follows:
1. I appeal to have established the correct date of my attendance at the STD Clinic North Terrace Adelaide in June 2003. My attendance was one time and sample (blood and cervical/vaginal swab) were taken (collected) in the one day.
2. The grounds of appeal are: I appeal that the blood test results sent to me date collected (10 June 2003) are not my results. The record shows my attendance: 10 June 2003 and 18 June 2003. I attended the clinic once only and not on 10 June 2003.
3. The following order is sought: (1) I seek order to have verified by Medicare the correct date of my attendance STD Clinic in June 2003; and (2) I seek order to my blood test results in original, to have a microbiologist examine.
There are other matters on the form on p.2 in particular in relation to an extension of time which is not relevant to my consideration in this matter.
The evidence before the Court
At the time that the proceedings commenced today I invited the parties to nominate the evidence that was to be received by me as read into evidence.
The following affidavit material was read into evidence by consent by both parties: FDN2, an affidavit of the appellant sworn 6 June 2003 which reads as follows:-
I, N.E.L. of (address) pensioner take an oath:
1.   The appellant request urgent hearing because: suffer physical injury resulting unsuccessful procedure performed on 20 September 2000, and suffer chronic health problem. Please refer to District Court action: DCCIV 12-2625.
Attachments:
1.      Three copies of blood test results dated 10/6/2003 from STD Clinic (FOI).
2.      Schedule relating to internal review (record).
3.      Ombudsman letter of determination date: 8 May 2013.
This affidavit refers to three exhibits. The first exhibit is an IMVS inquiry result in relation to the appellant in respect of syphilis serology collected 10 June 2003 which is the result of a syphilis antibody test on the blood of the appellant; a HIV serology in respect of a blood specimen received 10 June 2003 showing date collected 10 June 2003; a hepatitis serology test result for blood collected 10 June 2003 testing for hepatitis B and hepatitis C antigens and antibodies.
Exhibit 2 is a document schedule relating to internal review FOI application of the appellant disclosing eight documents.
Exhibit 3 is a letter from the Ombudsman to the appellant enclosing a determination of the Ombudsman in respect of an external review under s.39 of the Act dated 8 May 2013.
Also read into evidence for the respondent was an affidavit of Christine Marjory Joan Barber, sworn 26 August 2013, together with nine exhibits to that affidavit. I will in due course refer to that affidavit in detail in the course of these reasons.
I have also received into evidence FDN6 which is a sworn document (but not in the usual form of an affidavit) called “Response of the Appellant” to the affidavit of Christine Marjory Joan Barber. This document is sworn on 9 September 2013 by the appellant. I have treated this document as if it was a sworn affidavit. I have read and have taken into consideration the contents of all of those documents for the purposes of my determination of these proceedings.
I then invited the appellant to inform me of any matters that she asked me to be aware of for the purposes of my determination of these proceedings. The appellant took the opportunity to make submissions to me in relation to the content of the documents and made a number of submissions concerning her views about the documents, their accuracy and the absences or failures within the document to properly record what she contends may have occurred at particular times. I have taken into account everything that the appellant has said to me today.
Background History
On 11 December 2012 the respondent received a Freedom of Information application (FOI application) from the appellant. It is dated 6 December 2012.
It is addressed to “Clinic 275 STDs”. It is signed by the appellant. It requests “blood test results taken from me in June 2012”. The appellant seeks to inspect the documents and obtain a copy of the documents. It also encloses copies of Centrelink and other material.
Clinic 275 is a specialised clinic for testing and treatment of sexually transmitted diseases and it is a service provided in a ward at the Royal Adelaide Hospital and is therefore part of the respondent's operation. The request was treated as a valid request for the purpose of the Act. In accordance with the provisions of that Act, on 17 December 2012 Mr James Dyson who was an accredited FOI officer under the Act determined pursuant to s.19 of the Act to provide access to three documents relating to blood tests. This was a determination under s.23 of the Act. Section 19 of the Act reads as follows:-
19—Determination of applications
(1)After considering an application for access to a document, an agency must determine—
(a)whether access to the document is to be given (either immediately or subject to deferral) or refused; and
(b)if access to the document is to be given—any charge payable in respect of the giving of access; and
(c)     any charge payable for dealing with the application.
(2)     If—
(a)     —
(i)the principal officer of an agency has, under section 14A, extended the period within which an application must be dealt with by the agency; and
(ii)the agency fails to determine the application within the period as so extended; or
(b)in any other case—an agency fails to determine an application within 30 days after receiving the application,
the agency is to be taken to have determined the application by refusing access to the document to which it relates for the purposes of the provisions of Division 3 and Part 5.
(2a)However, nothing prevents an agency from making a determination to give access to a document on an application after the period within which it was required to deal with the application (and any such determination is to be taken to have been made under this Act).
(3)This section does not require an agency to determine an application if the agency has, in accordance with this Act, transferred the application to another agency or refused to deal with, or to continue to deal with, the application.
Section 23 of the Act reads as follows:-
23—Notices of determination
(1)     An agency must notify an applicant in writing—
(a)     of its determination of his or her application; or
(b)if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document.
(2)     Such a notice must specify—
(a)     the day on which the determination was made; and
(b)     —
(i)the name and designation of the officer by whom the determination was made; and
(ii)    the rights of review and appeal conferred by this Act; and
(iii)the procedures to be followed for the purpose of exercising those rights; and
(c)if the determination is to the effect that access to a document is to be given (either immediately or subject to deferral)—the amount of any charge payable in respect of the giving of access; and
(d)if the determination is to the effect that the document is an exempt document and that access is to be given to a copy of the document from which exempt matter has been deleted—the fact that the document is such a copy and the provision of Schedule 1 by virtue of which the document is an exempt document; and
(e)if the determination is to the effect that access to a document is to be given subject to deferral—
(i)    the reason for the deferral; and
(ii)    if applicable—the likely period of deferral; and
(f)if the determination is to the effect that access to a document is refused—
(i)    the reasons for the refusal, including—
(A)    the grounds for the refusal under section 20(1); and
(B)if a ground for the refusal is that the document is an exempt document—the particular provision of Schedule 1 by virtue of which the document is an exempt document and, if under the provision disclosure of the document must, on balance, be contrary to the public interest in order for the document to be exempt, the reasons why disclosure of the document would be contrary to the public interest; and
(ii)the findings on any material questions of fact underlying the reasons for the refusal, together with a reference to the sources of information on which those findings are based; and
(g)the amount of any charge for dealing with the application, together with—
(i)    a statement of any amount payable by the applicant; or
(ii)    a statement of any amount refundable to the applicant,
in relation to the charge, having regard to the sum of any advance deposits paid in respect of the application.
(3)Where an applicant applies for access to a document that is an exempt document for reasons related to criminal investigation or law enforcement, the notice may be given in a form that neither admits or denies the existence of the document and, if disclosure of the existence of the document could prejudice the safety of a person, the notice must be given in that form.
(4)An agency is not required to include in a notice any matter if its inclusion in the notice would result in the notice being an exempt document.
The determination of Mr James Dyson who at the time was principal officer FOI and legislative compliance of the respondent, was forwarded to the appellant at her home address and is dated 17 December 2012. The letter refers to the application and the request in the application namely: “... the blood test results taken from me in June 2003...” It advises that the determination was made as per s.23 of the Act, and that it has been granted. Review rights were also referred to and enclosed with the letter were three documents. The first is a hepatitis serology result from the IMVS (Institute of Medical and Veterinary Science) in respect of the appellant for testing for hepatitis B surface antigen, hepatitis core total antibody and hepatitis C antibody. The tests were negative. It reports that there was no serological evidence of exposure to hepatitis B virus.
The second document was a syphilis serology report in respect of a specimen collected on 10 June 2003. It was the report of a syphilis antibody test on blood and was identified as non-reactive. It reports that there was no serological evidence of syphilis. It also reports that a syphilis antibody may take up to four weeks to develop, a repeat test may be clinically indicated. It also reports that the syphilis antibody screen is an enzyme immunoassay which detects both IgG and IgM treponemal antibodies.
The third document is an HIV screen also in respect of a specimen collected on 10 June 2003. It is described as an HIV serology and reports that there is no serological evidence of infection with HIV-1 and HIV-2. It also sets out the relevant tests that have been performed by the IMVS.
The evidence discloses that on 16 January 2013 the respondent received an application for internal review pursuant to s.29 of the Act. That section reads as follows:-
29—Internal review
(1)Subject to subsection (5), a person who is aggrieved by a determination made by an agency under any other provision of this Part is entitled to a review of the determination.
(2)     An application for review of a determination—
(a)     must be in writing; and
(b)     must be accompanied by such application fee as may be prescribed; and
(c)     must be addressed to the principal officer of the agency; and
(d)must specify an address in Australia to which notices under this Act should be sent; and
(e)must be lodged at an office of the agency within 30 days after the day on which notice of the determination was given to the applicant or within such further time as the principal officer of the agency may allow.
(3)On an application for review under this section the agency may confirm, vary or reverse the determination under review.
(4)If on a review the agency varies or reverses a determination so that access to a document is to be given (either immediately or subject to deferral), the agency must refund any application fee paid in respect of the review.
(5)An agency that fails to determine an application made under this section within 14 days after it is received by the agency is, for the purposes of this Act, to be taken to have confirmed the determination in respect of which a review is sought.
(6)A determination is not subject to review under this section if it is made by or at the direction of the principal officer of the agency or at the direction of a person or body to which the principal officer is responsible.
The application for internal review was made by the appellant. It indicates that the basis of the application for internal review under ss.29 and 38 of the Act is that the appellant has been refused access to part of the document. In a comments section at the bottom of the document, the appellant states as followed:-
I was advised by STD clinic that my appointment was on 11 June 2003. The results which I received are from the 10 June 2003, also I did not receive the four test results, I was sent only three tests. I request complete original results taken on 11 June 2003.
For the purposes of s.29 of the Act, it is necessary that an internal review is carried out by the principal officer of the relevant agency. I am informed in evidence and I accept that the relevant principal officer was Dr David Panter, the chief executive officer of the respondent.
I am informed and I accept because it is unchallenged that Dr Panter was assisted by Ms Barber in and about the relevant inquiries and searches to assist in a determination to be made by Dr Panter.
I am also informed in evidence by Ms Barber that she requested relevant case files from Clinic 275 relating to the appellant. Ms Barber informs me that she received a file marked with the appellant's details that disclosed what (in the hospital sense) is typically called a unit record or UR number. That number was attributed to the appellant by the Clinic 275.
Ms Barber also identifies that there was a note within the file which indicated a date of visit by the appellant of 23 May 2011, and the time marked on the document is 11:16. Ms Barber also informs me that she made a request to SA Pathology to request all test results for the appellant in the month of June 2003. As a result of that, she was forwarded copies of the three test results the subject of Mr Dyson's determination, but she was also provided with three additional test results from samples taken from the appellant on 18 June 2003.
Despite her attempts, and as was required by the terms of the Act, Ms Barber was unable to make contact with the appellant and attempt to clarify her request in respect of the documents alleged to have been dated 11 June 2003. As I have already set out in these reasons, the documentation indicates an attendance by the appellant on 10 June 2003. It became clear, as a result of a further conversation between the appellant and Ms Barber, that it was in May 2011 that the appellant was informed by a staff member of Clinic 275 that she had attended on 11 June 2003 and not, as the documents plainly indicate, on 10 June 2003. Ms Barber indicates that there may well have been some confusion in relation to dates by virtue of a misreading of the material on the face of the documentation. That is a matter upon which I will form a view based upon the evidentiary material presently before me although it is not necessary to conclude about the accuracy of the matter raised by Ms Barber; it will be necessary to draw conclusions based upon what is disclosed or the face of the documents which are the evidence before me.
Dr Panter carried out his internal review and, as a result, decided to vary the original determination and also decided to provide access to a further five documents. Those five documents were annexures to a letter signed by Dr Panter dated 2 February 2013 and sent by the respondent to the appellant. In that letter, Dr Dyson identifies himself and his task, he also identifies the assistance he has obtained from Ms Barber, he identifies the request for the internal review and says as follows:-
Your internal review request identifies two issues; the first is the date of your attendance at the STD Clinic. You advised Ms Barber that the STD Clinic have stated that you attended on 11 May 2003. I have obtained your case file and have found that a printed two-page "episode report" (document 4) indicates that you attended on Tuesday, 10 June 2003 at 5 p.m., however a handwritten A3 clinical note (document 5) indicates the date of visit was 23 May 2011 and the time in Monday, 11 June (no year indicated). The time DR field (the time you left) is marked as 1116 (11.16 a.m.). I can confirm that 10 June 2003 fell on a Tuesday and 23 May 2011 fell on a Monday. I believe that the information you have received from the Chest Clinic in relation to your attendance may have resulted from the administrative staff member misreading your note (1116) as 11/6 (11 June). For completeness of your attendance history, I have determined to release both documents to you.
Dr Panter then addresses the second issue concerning the attendance at the STD Clinic in June 2003. He refers to the tests on 18 June 2003, the request of the appellant in relation to the test results in respect of that attendance and informs the appellant that he has determined to release those documents to her (these are documents 6-8). He also informs the appellant that there are no other pathology results in relation to her care for June 2003. He goes on to inform the appellant of her review rights.
Attached to the letter is a document schedule relating to “…internal review, FOI application, N.L…” It refers to eight documents and includes the document number, a description and a date. Relevantly there are two bundles of documents concerning June 2003. The first contains four documents and the second contains three documents. The fifth document is a handwritten case note on A3 page dated 23 May 2011.
On 19 March 2013 the respondent, through the Royal Adelaide Hospital, received a letter from the Ombudsman indicating that the appellant had applied for an external review under s39 of the Act. Section 39 Act reads as follows:-
39—External review
(1)     In this section—
interested person, in relation to a review, means a person who should, under Division 2 of Part 3, be consulted in relation to an application for access to a document the subject of the review;
relevant review authority, in relation to a determination, means—
(a)if the determination was not made by a person described in paragraph (b)—the Ombudsman; or
(b)if the determination was made by a police officer or the Minister responsible for the administration of South Australia Police in that capacity—the Police Ombudsman.
(2)     A person—
(a)who is aggrieved by a determination of an agency following an internal review; or
(b)     who is aggrieved by a determination that is not liable to internal review,
may apply to the relevant review authority for a review of the determination.

Dr Panter responded to the Ombudsman in April 2013. In his letter to Dr Panter of 15 March 2013, the Ombudsman made a request for a number of documents set out in six paragraphs on p.1 of the letter. It reads as follows:-
To assist me in the conduct of this review, please provide the following to my office by 5 April 2013:
1.   Copies of the applications for access and internal review
2.   Copies of the agency’s initial and internal review determinations
3.   Copies of all of the documents within the scope of the application for access. For ease of reference, please ensure that all documents are clearly identifiable and numbered. If exemption is claimed over a document or parts of a document, please clearly identify the exemption provision in Schedule 1 to the FOI Act and the relevant parts of the document that have been withheld from access, and those parts that have been released to the applicant
4.   Copies of any further correspondence or file notes recording communication between the agency and the applicant in relation to the application
5.   Copies of any internal communications, or communications between the agency and any other party which are relevant to the application. This should include documentation showing consultations undertaken by the agency with interested parties and other agencies, and legal advice, for example
6.   Any submissions you wish to make in support of the agency’s determination, in view of the agency’s obligations under section 48 of the FOI Act.
The final paragraph will be understood as any submissions that Dr Panter (on behalf of the respondent) would wish to make in support of the agency's determination.
Dr Panter responded to the Ombudsman by letter of April 2013 (there is no specific date identified). He addresses requests numbered 1-5 and in respect of para.6 says as follows:-
... N.L. originally requested all blood tests from June 2003 and advised in her internal review application that she was specifically seeking access to blood test results from 11 June 2003 as the STD Clinic had apparently informed her that her appointment was on 11 June 2003.
Following a review of N.L.’s STD Clinic file, N.L. was advised in the internal review determination, and via telephone on 31 January 2013 that our records indicate she attended the STD Clinic on 10 June 2003 and 18 June 2003, not 11 June 2003. A copy of an episode report showing attendances on these dates (document 4 attached to the internal review letter) was provided to N.L. for her information.
The sixth blood test results, which have already been provided to N.L., are the only blood test results held by the Royal Adelaide Hospital (STD Clinic) and SA Pathology in relation to N.L. for June 2003.
The Ombudsman then set about the review as requested by the appellant. On 11 April 2013 the respondent received a letter from the Ombudsman dated 8 April 2013. The letter enclosed what the Ombudsman described as his provisional determination and reasons. The Ombudsman informed Dr Panter that he had also provided a copy to the applicant, who is the appellant in these proceedings and he advises that his expressed views are tentative only and invites submissions which he will take into account before finalising his determination in the review. Submissions are required to be provided in writing by 1 May 2013 and there will be a final determination after that date.
The respondent wrote to the Ombudsman on 23 April 2013 to inform him that the respondent had no further submissions.
On 10 May 2013 the respondent received a letter from the Ombudsman attaching his final determination and reasons. The Ombudsman upheld the determination of Dr Panter. In the letter from the Ombudsman of 8 May 2013 he says as follows:-
I note that in my provisional determination I wrote: as I understand it, all of the documents have been released to the applicant in full. Despite this, the applicant maintains that she has not received a copy of all documents (1-8). I cannot explain why the applicant may not have received copies of the documents when the agency's determination was to release them all in full. In my view, to assist the applicant, the agency should consider sending her another copy of the documents.
The appeal rights of the agency were then set out in the letter.
By letter of 24 May 2013 Dr Panter wrote to the appellant and enclosed a document schedule and copies of the documents; the letter identified the letter from the Ombudsman of 8 May 2013; it enclosed the eight documents that were referred to as being the relevant documents concerning the attendances of the appellant at the STD clinic.
I am informed by Ms Barber in her affidavit, and I accept, that documents 1-3 inclusive represent test results from samples collected on 10 June 2003. Documents 6-8 represent test results from samples collected on 18 June 2003. Document 4 is an episode report which is a printout from an electronic record of attendance of the appellant. Document 5 is the case note that I referred to above, namely the handwritten note of 23 May 2011.
I have already described in detail the documents 1-3 concerning the syphilis antibodies test, the HIV serology, and the hepatitis B and C antibody test.
Document 4 is an episode report, it shows a date of visit of 10 June 2003 and it identifies that the reason for the visit is: 'asymptomatic volunteer'. It discloses that there was a negative vaginal smear, negative vaginal culture, negative cervical culture, negative cervical Chlamydia, non-reactive syphilis EIA, negative hepatitis B, negative hepatitis C, negative HIV serology, and the diagnosis was there was no illness and no treatment was required. Page 2 of the document shows a date of follow-up on 18 June 2003 and a date of completion of 27 June 2003.
The next document, which is identified as “female STD episode”, is dated 23 May 2011. I will not repeat the matters that I have earlier set out but it is important to state that document 4 discloses client number 030696S and the document of 23 May 2011 shows a unit record number 030696 in respect of the appellant. It reads (this is the note made on 23 May 2011):-
Long history of concerns about venereal disease. Admitted FMC July last year Tx (treatment) for 'sterile pyuria' - Tx ED (treated with an antibiotic).
There is then some commentary in relation to four folders of notes held by the appellant and the note then records as follows:-
Doesn't want screening, wants me to find out what happened during her admission FMC. Explained appears presumptive treatment for UTI (an acronym for urinary tract infection), all results negative encouraged to go back to GP.
For the sake of completeness, sterile pyuria is the presence of elevated numbers of white cells (greater than 10 per cubic millimetre) in urine which appears sterile using standard culture techniques. There are a number of causes of sterile pyuria including urinary tract infection.
Document 6 is a document dated 18 June 2003 that shows results for a specimen from a cervical swab, it shows the results of microscopy and it shows that there is no report in respect of the microscopy nor in the respect of a culture for vaginal flora but there is no growth yeast and no evidence of gonorrhoea. The second report, also dated 18 June 2003 reports on a cervical swab for Chlamydia trachomatis nucleic acid. The report says that there is no detection of that condition. The third report of 18 June discloses that in respect of a vaginal swab specimen and reports that there are no polymorphs seen, there is no vaginal flora, there is no trichomonas vaginalis, there is no growth yeast and no gonorrhoea identified. I reiterate that these were the documents that were given to the appellant with the letter from Dr Panter of 24 May 2013.
On 14 June 2013, the appellant appealed to this Court from the Ombudsman's determination.
The appeal is made under s.49(2)(c) of the Act. A person (other than an agency) who is aggrieved by a determination made on a review under division 1 may appeal against the determination to the District Court. Questions of leave do not arise. A determination made under a review under division 1 relates to the right of external review under s.39 of the District Court Act. For the purposes of s.39(1) the relevant review authority is the Ombudsman and therefore the right of appeal of the appellant in this matter is an appeal as of right.
In evidence I have been informed by Ms Barber that following the receipt of the notice of appeal, she endeavoured to conduct further searches because it was unclear to her what the appellant disputed regarding her attendances. Ms Barber informs the Court in evidence that in conducting those searches she was made aware of further documents relating to the attendances of the appellant at the relevant health authorities.
The matter came on before Master Rice of this Court on 29 July 2013 and from my reading of the Court record, on that occasion, it appears that the appellant now denies that she attended Clinic 275 on 10 June 2003, but accepts that she did attend on 18 June 2003. Following the further searches carried out by Ms Barber, she instructed the solicitors for the respondent to write to the appellant enclosing further documents concerning her searches.
A letter of 31 July 2013, was sent by a solicitor from the Attorney-General's Department to the appellant at her home address. That letter informs the appellant that three further documents had been found. The first, an attendance slip on 10 June 2003, contains the name, date of birth and address details of the appellant. My reading of that document suggests that it has been filled out by or on behalf of the appellant on 10 June 2003. It relates to an attendance at Clinic 275 and in particular asks whether Clinic 275 is able to contact the appellant at the address that she has given.
The second document, document 10, is a handwritten case note dated 10 June 2003. It is in the same format as document 5. This document contains the clinic number (the UR record) 030696. It describes the name of the appellant, it describes her occupation which is the same occupation set out on document 9 and it sets out details in relation to tests carried out and other matters. It is not necessary for me to describe those matters because the document speaks for itself and is plainly a record of what has transpired.
In submissions before me today a reference was made to this document by the appellant. She said that the document discloses time-in as 17.27 (5.27 p.m. in the evening). It then identifies time - the day as being a Tuesday and the following entry:-
Time DR. 17.29.
The submission of the appellant before me today was that having regard to the content of the document, it was impossible for the doctor to have conducted the consultation and all that is involved with the consultation, as is plain from the face of the document, in two minutes.
In my opinion there is a false assumption behind that submission. The time-in at 17.27 is the time recorded on the documentation created on 10 June 2003, being the first visit of the appellant to the STD Clinic. The 'Time DR. 17.29' is the time that the appellant was seen by the relevant doctor, Dr V. Chong. That is easily verifiable. A review of the handwriting of Dr Chong within the document discloses the hand written entry of 'Time-in 17.27' is in a different hand to that of the hand written entry of 'Time DR. 17.29'. I am satisfied that based on an ordinary reading of the document, some two minutes after she arrived the appellant was seen by Dr Chong at 17.29 p.m. I therefore reject the submission of the appellant in that respect.
Document 11 is a handwritten case note dated 18 June 2003. It discloses time-in 14.20 on that day, which was a Wednesday, and the time that the doctor saw the appellant as 15.07, that is 3.07 p.m. in the afternoon. The document is entitled “First Follow-Up Visit”. It is dated 18 June 2003 and is entirely consistent with the advice that was given to the appellant having regard to the inquiries and tests that were made on 10 June 2003, namely that there should be a follow up visit if there was any suspicion in relation to any STDs that may have been suffered by the appellant.
The document also records a HIV test on 10 June 2003. It is signed by Dr Chong and it refers to the fact that the date the results were given was 18 June 2003 and that the date that the episode was completed was 27 June 2003. The final check identified is 15 July or 18 July 2003. It also records in a different hand that on 30 September 2010, the patient arrived at the clinic wanting results from the 2003.
It also records:-
All results were (unreadable). Patient has a illness now and has a ongoing issue with FMC. Patient did not want STI check-up. She has not had any sexual partners since 2003.
The letter went on to provide additional documents by way of disclosure. The letter also refers to the future conduct of the appeal, it suggests that all the documents that do exist have now been given to the appellant and that there is no purpose in the appeal.
In her affidavit of 26 August 2013, which is the unchallenged evidence before me, Ms Barber informs me that following her searches and as a result of them she was made aware of the whole file relating to the appellant held by Clinic 275 which was originally in two parts. She informs me and I accept that she had viewed one part as a result of her inquiries and searches relating to the internal review and the second part, which was held in the archives, she viewed as a result of her further inquiries after the directions hearing on 29 July 2013. She also informs me and I accept that all pathology requests generated from Clinic 275 are processed through SA Pathology as a result of the inquiries that she generated in relation to the medical tests conducted by SA Pathology on behalf of Clinic 275. She informs me and I accept that she has had forwarded to her all test results relating to the appellant for the month of June 2003 and that she is satisfied that the respondent holds no other documents relating to tests involving the appellant in Clinic 275 for June 2003.
I refer to the contents of the notice of appeal filed by the appellant which is FDN1. My understanding of the grounds of appeal is that the appellant seeks to have established the correct date of her attendance at the STD Clinic in June 2003 and secondly suggests that the blood test results were not her blood test results because she attended once only and therefore any test results for 10 June 2003 were not hers. Thirdly, she seeks orders to have verified by Medicare the correct date of her attendance at the STD Clinic and seeks orders for her blood tests to be re-examined by a microbiologist. Quite plainly, the orders sought for verification by Medicare and for reassessment by a microbiologist are not within the jurisdiction of this Court under any appeal under the Act. If I am wrong about that it is necessary to deal with a number of matters that arise. It is necessary to state that the burden of proof establishing the determination lies on the respondent to this appeal (s48 of the Act).
S.42E of the District Court Act reads as follows:-
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
By virtue of that provision I am required to examine the decision of the original decision-maker on the evidence or material before that decision-maker. I am permitted to allow further evidence or material to be presented. I am not bound by the rules of evidence but may inform myself as I think fit but I must act according to equity, good conscience and the substantial merits of the case. Importantly, s42E(3) requires that I give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
In my decision in Minister for Education and Child Development v Chapman,[1] I considered the meaning of the words 'cogent reasons'. I there said the following:-
One matter can be stated with some certainty: the question of what is sufficient to constitute cogent reasons begets a consideration of any number of matters that may change according to the seriousness and importance of the subject matter and the decision under consideration.
[1] [2013] SADC 130
The respondent submits and I accept that there are no cogent reasons to depart from the Ombudsman's determination. In respect of the first ground, I have no authority in respect of Medicare. I am unable to give any direction to Medicare because Medicare is a Commonwealth agency and this matter arises under State legislation. I am not empowered to give a direction in these circumstances to a Commonwealth agency to do anything at all. The Commonwealth is not a party to the proceedings.
Importantly also, para.2 of the orders seeks the blood test results in original and for them to have been examined by a microbiologist. These documents have already been produced and I am satisfied on the evidence that all documents that exist have been produced. I reiterate that I am unable to make any order the blood test results in original be produced now because that is, to an extent, unrealistic and I am certainly unable to make any order that the test results be produced for the purposes of a re-examination by a microbiologist.
I am also satisfied that the contention about the incorrectness of documents is misconceived. In my view, it relies upon the following misconceptions:
1. A misreading of the documents which plainly upon their face record the circumstances and events as they occurred in 2003;
2. It relies upon an imperfect memory and in my opinion this is not a matter where a person's memory of events in 2003 should be preferred to documentary evidence;
3. Under the best evidence rule the documents and their accuracy are to be accepted because of the imperfection of the human memory; and
4. There is no reason why the Court should or would doubt the accuracy of the documents.
For those reasons I reject any assertion by the appellant of the incorrectness of the documents, the incorrectness of the information contained on the face of the documents and therefore the inaccuracy or unreliability of the documents as a continuous record of what transpired in June 2003.
On the question of the alleged right to have established the correct date, as I am not satisfied that this is an inquiry that could be embarked upon in this proceeding I am of the opinion that this matter is beyond the scope of this application and I refer, in particular, to s.30 of the Act. Under that provision there is a right to apply for amendment of an agency's records but that may only occur if a document contains information concerning the person's personal affairs, it is available for use by the agency in connection with its administrative function and the information is, in the person's opinion, incomplete, incorrect, out of date or misleading. In my opinion s.30 has no application in the current proceedings. The status of the agency's documents in my opinion is unchallenged on any basis and merely because an imperfect memory would suggest that something did not happen on 10 June 2003 notwithstanding the records which show that it did happen on 10 June 2003 is not a basis for me to form any preliminary or final opinion that there is any information which is incomplete, incorrect, out of date or misleading. In my opinion this would not be the subject of a review and I refer again to my decision in Minister for Education and Child Development v Chapman.

It is also the case that because there is no decision on this point, there can be no cogent reasons to depart from it. I refer to the contents of s.30, s.31, s.34, s.35 and s.36 of the Act. Those provisions anticipate that an application may be made for amendment of the agency's records. It is necessary for such an application to be dealt with on behalf of an agency by an accredited FOI officer (s.32). It is then necessary for there to be a determination of the application (s.34). The agency may refuse to amend the records in accordance with the application if it is satisfied that its records are not incomplete, incorrect, out of date or misleading or if it is satisfied that the application contains matters that are incorrect or misleading in a material respect or if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than the Act (s.35(a)(b)(c) of the Act). The first two sub-paragraphs of the section are pertinent and it is my opinion that the agency is plainly in a position where it may be satisfied that its records are not incomplete, incorrect, out of date or misleading and it also may be satisfied having regard to that position that the application contains matters that are incorrect or misleading. In my opinion, the application may be treated as confused.
In any event, any application to amend is internally self-contradictory because of the disparity of the appellant's factual evidence. On 29 July 2013 in this Court, Master Rice identified that the appellant denied that she went to the clinic on 10 June 2013. Thus the appellant disclaimed the records of the agency. However, in her response of 9 June 2013 which has been read into evidence the appellant says that she did attend on 10 June 2003 but did not see a doctor on that date. In these reasons I have referred to the events as I find them to have been established and it is plain that the appellant did see a doctor on 10 June 2003. However, the important point is that the issue of the inaccuracy of the respondent's recollection merely underscores and re-emphasises the views that I have formed.
Any ordinary objective reading of the documents that have been supplied by the agency to the appellant plainly disclose attendances on 10 June 2003, tests undertaken, a further attendance on 18 June 2003 and other attendances which are not relevant to these matters. Those attendances all disclose both the fact of the tests and the results of the tests, the fact of the request for the tests made by the appellant and the communication of the results of those tests to the appellant. They also show that on a number of occasions a recommendation was made to the appellant that she should return to her GP.
In my opinion the only logical conclusion based upon the inferences that are overwhelmingly available is that the appellant attended at the STD Clinic on 10 June 2003, that she was seen by a doctor, that bloods and other specimens were taken, that tests were done, that there was a follow-up visit and that proper advice was given to the appellant in relation to the results of all of the tests undertaken for and on behalf of the appellant.
The appeal is dismissed. There are no cogent reasons to depart from the decision under appeal.