LG v Attorney Generals Department of NSW

[2009] NSWADT 141

CITATION:	LG v Attorney Generals Department of NSW [2009] NSWADT 141
DIVISION:	General Division
PARTIES:	APPLICANT LG RESPONDENT Attorney Generals Department of NSW
FILE NUMBER:	093001
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	14 April 2009
DATE OF DECISION:	15 June 2009
BEFORE:	Molony P - Judicial Member
LEGISLATION CITED:	Civil Procedure Act 2006 Criminal Records Act 1991 District Court Act 1973 Freedom of Information Act 1989 Health Records Information Privacy Act 2003 Privacy and Personal Information Protection Act 1998 Uniform Civil Procedure Rules 2005
CASES CITED:	Budd v Director, Attorney Generals Department [2006] NSWSC 1267 HO v Attorney-General's Department [2008] NSWADT 224 N (No. 2) v Director General, Attorney General's Department [2002] NSWADT 33 Nakhl Nasr v State of NSW; George Nasr v State of NSW [2007] NSWCA 101 NZ v Attorney-General's Department [2005] NSWADT 103 NZ v Director-General, Attorney-General's Department [2005] NSWADTAP 62
REPRESENTATION:	APPLICANT In person RESPONDENT T Chisolm, solicitors
ORDERS:	The application is dismissed for want of jurisdiction.

REASONS FOR DECISION

Introduction

1 LG seeks external review of conduct of staff employed in the Registry of the District Court at Sydney in giving her solicitors, in District Court proceedings to which she was a party, access to documents produced under subpoena by her doctor. Those documents were the subject of claims of objections by her doctor (confidentiality, relevance and privilege). There was no order made for access or inspection.

2 On 25 November 2008 LG made an application for internal review of that conduct under the Privacy and Personal Information Protection Act 1998 (‘PPIP Act’) and the Health Records Information Privacy Act 2003 (HRIP Act’). On 8 December 2008 her internal review application was not accepted on the basis that:

Section 6 of the PIPP Act provides that the Act does not apply to the manner in which a court of tribunal exercises its judicial functions. Section 13 of the HRIP Act states to the same effect. The function of receiving, organising and giving access to documents intended as evidence in proceedings is part of the judicial function of a court.

3 On 2 January 2009 LG filed an application to review that decision with this Tribunal.

4 At a planning meeting held on 17 February 2009 it was agreed that I should first determine, as a preliminary issue, whether both the PIPP Act and the HRIP Act applied to conduct alleged by LG. If not, the Tribunal would not have jurisdiction to conduct an external review of that conduct. By consent I made the following order:

The Tribunal will determine the issues of jurisdiction on the basis of the facts as alleged by the Applicant, without the Respondent admitting those facts for the purpose of the substantive proceedings.

5 I made orders for the filing of submissions by the parties.

6 These reasons relate to the determination of that preliminary issue.

7 In her application for review LG set out the following background:

My matter in the District Court of NSW related to an injury in more recent years.
One Packet of relevant documents, records and correspondence to the proceedings were submitted by my Doctor (Packet 3). Subsequently, upon further excessive requests by the Defendants, two further packets were presented (Packets 4 and 5). Packet 4 included a mix of relevant and non-relevant information to the proceedings. One of these additional Packets, Packet 5, was sealed with objections (confidentiality, privilege and relevance) by my doctor. The subpoena list labeled this Packet 5: Privileged by the Producer. As such, no access or inspection was ordered by the Registrar under UNIFORM CIVIL PROCEDURE RULES 2005 - REG 33.9.
The complaint and request for internal review involved unlawful access provided to this latter Packet 5 despite knowledge by the Registry that access was not to be provided and I claim that the Packet 5 access and access issues did not fall within the exemptions outlined by the NSW Attorney General's Department and the access provided was unlawful and as such an External Review is required.
In addition, I noted issues I felt with the subpoena forms not outlining rights according to the actual law (1. an inaccurate and misleading presentation of Rule 33.4 of the Uniform Civil Procedure Rules 2005 and 2. not outlining any rights to object regarding relevance), inadequate control at the court (e.g. lack of audit trails on who accessed and with what identification, lack of accountability) and an apparent lack of uniformity or consistent standard of coding subpoena lists. I feel these security issues fall outside the exemptions and require review in the spirit of information protection and health privacy and security principles and form part of the corrective orders I would seek. I feel it would be extremely sad to think that this breach would not lead to review, improvement or even apology given the seriousness of the effects to those involved. I feel ignoring the issues and denying unlawful access would send an unfortunate message. I would like to see improvement for all concerned.
Upon presentation of the Packet 4 and 5 records, my doctor's lawyer/counsel wrote to me:
"Dr … separated documents in two bundles and sealed the documents [.....] not relevant to the proceeding. In addition, I further understand that he followed my advice and attached a letter to the Registrar of the District Court with a copy of the subpoena advising the Registrar:
-of his compliance with the subpoena;
-the reason for his compliance in two bundles and the nature of each bundle; and
-objecting to the production of the documents in the 'sealed' package on the basis of confidentiality, privilege and relevance."
The information had not been considered by the Court to evidence for the s 6 and s 13 exemptions to apply. The Packet 5 documents were not intended as evidence — objections had been placed on their access and a motion required for access to anyone, including myself as the Plaintiff and patient. The records were sealed with objections (letter citing confidentiality, relevance and privilege), and clearly marked/labeled on the actual packet to only be opened by a Judge. The District Court of NSW Subpoena list cited Packet 5: "Privileged by the Producer" — this was a Doctor. In the District Court of NSW, when documents are privileged by the Producer and that producer is a Doctor, a motion before a Judge (not even a Registrar) is required before access is provided. The Court does not assume whether this is legal or physician/patient privilege. Due process was not observed and they were given out by an Officer of the Court, flouting the fact that no hearing or determination had been made regarding these sealed records. They had not gone to the Judge yet. Due process was not observed. There were no access rights or orders made and my personal information included was not relevant or related to the proceedings. The privilege was waived by no one but an Officer of the Court who knew they were not meant to provide access. Unnecessary and flagrant discretion was shown in violation of Information Protection Principles. The packet was later resealed.
Any practice of providing access to privileged by the Producer information, when that Producer is a Doctor, information is usually blocked without a hearing. There are over-riding patient welfare concerns with confidentiality objections and counseling privilege. The doctor must be advised of the application or called as a witness at motion for the safety of the patient and/or to defend his objections. The possibility of harm to the patient is paramount and in this case the information was not intended as evidence.
I allege the claim of s 6 or s 13 exemption made by the NSW Attorney General's Department is seriously and deeply wrong and a complete violation of privacy and confidentiality has occurred unnecessarily and the issues at the court are not being taken seriously that would see such a breach go un-reviewed. This was an upsetting and unnecessary breach of privacy and confidentiality without access orders or due process.

8 Later, at paragraph 7b of her application, LG alleged her case ‘involves intentional violations of the lack of access orders, and failure to follow due process and provide adequate security.’ She alleged this conduct took place between 22 September 2008 and 1 October 2008.

9 In her review application LG made detailed submissions on the issues of jurisdiction, together with submissions going to the confidentiality which should have been accorded to the information in issue, and its lack of relevance to the District Court proceedings. She alleged breaches of the information protection principles in section 8, 10, 11, 12, 14, 15, 16, 17 and 18 of the PIPP Act.

10 In its submissions, the Respondent made reference to a number of letters which LG had attached to her application to this Tribunal. LG has objected to this, in her submissions in response.

11 In her response LG also made further allegations of fact relating to matters subsequent to those considered by the internal review, and sought to rely on a statement of her own dated 4 April 2009 with various annexures.

12 I have taken the view that, in accordance with the agreement reached between the parties, I should have regard to only the Application filed with the Tribunal and the attached internal review documents. To do otherwise would be change the basis upon which the parties agreed I should determine the jurisdictional issue.

Issues

13 My consideration is limited to the jurisdictional issue. This requires a consideration of whether the conduct complained of by LG was concerned with the exercise of the District Court’s judicial functions, and is, as a result, by virtue of s 13 of the HRIP Act and 6 of the PIPP Act (if applicable), not subject to those Acts. It also requires a consideration of whether or not the conclusion I reach would be any different if, as LG alleges, a District Registry staff member intentionally gave access to her health information in breach of the usual procedure of the District court and access orders.

Consideration

14 I note that in her extensive and lengthy submissions LG has addressed many issues which I have concluded are irrelevant to the jurisdictional issue. I do not propose to address those submissions in detail.

15 LG alleges that the information, which her doctors objected to production of, was health information relating to her. It was therefore health information within the meaning of s 6 of the HRIP Act.

16 Section 11 of the HRIP Act provides:

(1) This Act applies to every organisation that is a health service provider or that collects, holds or uses health information.
Note. The term organisation means a public sector agency or a private sector person.
(2) An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles and with any health privacy code of practice or provision of Part 4 that is applicable to the organisation.
(3) An organisation must not do any thing, or engage in any practice, that contravenes a Health Privacy Principle or a health privacy code of practice or a provision of Part 4 in respect of which the organisation is required to comply.
Note. The application of Health Privacy Principles and the provisions of Part 4 may be modified by health privacy codes of practice. See section 39.

17 Section 13 of the HRIP Act provides:

(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.
(2) …
(3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:
(a) in relation to a justice—such of the functions of the justice as relate to the conduct of committal proceedings, and
(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 1980 .

18 Section 6 of the PIPP Act is in exactly the same terms, save that the word ‘justice’ in ss 3(a) in replaced by ‘magistrate.’

19 Section 21 of the HRIP Act provides:

(1) The following conduct by a public sector agency is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies:
(a) the contravention of a Health Privacy Principle that applies to the agency,
(b) the contravention of a health privacy code of practice that applies to the agency.
(2) For that purpose, a reference in that Part:
(a) to personal information is taken to include health information, and
(b) to an information protection principle is taken to include a Health Privacy Principle, and
(c) to a privacy code of practice is taken to include a health privacy code of practice.
(3) …

20 Part 5 of the PIPP Act contains the provisions of that Act which allow a person aggrieved by the conduct of a public sector agency to seek an internal review of that conduct (s 53(1)); the process to be followed in submitting, considering and determining an internal review (s 53(2) to (8)); the role of the Privacy Commissioner in that process (s 54); the right of a party aggrieved by an internal review to seek an external review in this Tribunal and the powers of the Tribunal on external review (s 55); and, a right to appeal a decision of the Tribunal to an Appeal Panel (s 56).

21 The effect of s 13(1) of the HRIP Act is to exclude from the operation of that Act, or make immune, the manner in which the holder of an office relating to a court, exercises the court’s judicial functions. As a consequence, where an office holder of a court engages in conduct with respect to health information in the exercise of its judicial function, the HRIP Act does not apply to the manner is which judicial functions are exercised.

22 It necessarily follows that the right of a person aggrieved to seek an internal review under Part 5 of the PIPP Act, given by s 21 of the HRIP Act, does not apply, because the HRIP Act does not apply. Thus, if the conduct complained of by LG concerns the manner in which the District Court, or its office holders, exercised their judicial functions, then the decision made on internal review was correct and this Tribunal does not jurisdiction to review that decision.

23 The same result would follow were s 6 of the PIPP Act the relevant provision.

24 What is encompassed within the concept of a court or tribunal’s ‘judicial functions’ has been the subject of a number of earlier decisions in relation to the PIPP Act and the Freedom of Information Act 1989. In NZ v Attorney-General's Department [2005] NSWADT 103, the President considered the term in the context of s 6 of the PIPP Act. There the conduct in issue was the release by the Registrar of a Local Court of documents filed by an applicant for an AVO to other parties. He said, at[14 -18]

"14 Section 6(1), to reiterate, provides that: `Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.' The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court.
15 The conduct did not occur in Court, but involved access to files given at the counter by Registry staff. Does activity of this kind fall within the meaning of the ‘judicial functions’ of the Court? Section 6(3), to reiterate, provides relevantly that: ‘In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it...’.
16 The Tribunal agrees with the Department’s submission that the words ‘relate to’ have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings: Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 per Taylor J at 620, 622; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-480 per Wilcox J.
17 See also N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33 at [32]- [33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989 . In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that ‘relate to’ the hearing and determination of claims. In that instance I ruled that professional communications of this kind ‘are necessary to the efficient conduct of a claim, and fall within the scope ... of those functions that ‘relate to’ the hearing and determination of claims’ (at [31]) (appeal dismissed, [2002] NSWADTAP 41).
18 This is a stronger case. The applicant’s personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that ‘relates to’ the exercise by the Court of its judicial functions.

25 On appeal from that decision the Appeal Panel in NZ v Director-General, Attorney-General's Department [2005] NSWADTAP 62 at [9] said:

9 The appellant disputed that the Registry is part of the Court. Whether or not the Registry is part of the Court is not the issue. Section 6(1) has the effect that nothing in the [Privacy Act] affects the manner in which the Registrar (or those acting on behalf of the Registrar) exercises the court's judicial functions. The Tribunal found at [14] that a Registrar of a Local Court is the holder of an office of a court within the terms of s 6. The appellant agreed with that finding. No error of law is disclosed.

26 On further appeal to the Supreme Court in Budd v Director, Attorney Generals Department [2006] NSWSC 1267 Bell J said, at [20]:

… The Plaintiff's complaint concerned the release of information containing personal details. There is no question of the PPIP Act applying to a court or the holder of an office relating to a court exercising the court's judicial functions. Once the actions of the registry staff were found to relate to the judicial functions of the court within the meaning of the PPIP Act, that was an end to the matter. There could be no question of the Tribunal exercising jurisdiction under that Act. For these reasons, the grounds that I have identified as paragraph [14] (a) and (b) do not establish error of law in the way the Appeal Panel determined the issue.

27 At [27] Bell J commented on the role of the Registrar of the Local Court:

27 The Registrar of a Local Court is, to my mind, plainly the holder of an office relating to the Local Court. The duties of the Registrar include the custody and control of documents filed in proceedings. Thus, provision is made in Pt 31.11 of the UCPR for the Registrar to produce to the Court any documents in the Registrar's custody that by notice in writing, any party to proceedings requests the Registrar to produce to the Court for the purposes of the proceedings.

28 More recently in HOv Attorney-General's Department [2008] NSWADT 224, the applicant sought external review of a decision, made under the Freedom of Information Act 1989 ("the FOI Act"), to refuse to amend a Certificate of Trial and Acquittal that had been issued by the Assistant Registrar of the District Court. The decision to refuse to amend the Certificate rested upon s. 10 of the FOIAct. That section relevantly provides:

(1) For the purposes of this Act:
(a) neither a court nor a person who is the holder of an office pertaining to a court shall, in relation to the court's judicial functions, be taken to be, or to be included in, an agency, and
(b) neither a registry or other office of a court nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the court's judicial functions, be taken to be, or to be included in, an agency.

29 Deputy President Handley said, at [19] and [28]:

19 Pursuant to s 10(1)(a) of the FOI Act, the Assistant Registrar of the District Court, being a person who holds an office pertaining to a court, is not an `agency' for the purpose of the FOIAct in relation to the District Court's `judicial functions', as defined in s 6(1), nor is the Assistant Registrar an `agency' in relation to those matters that relate to the Court's judicial functions (s 10(1)(b)).
…
28 The District Court Act 1973 provides for the appointment of registrars and assistant registrars, whose functions are prescribed in the Act (see, for example, ss 18H, I, and J). Relevantly, in terms of the section 10(1) of the FOl Act, an assistant registrar is, in my view, clearly 'the holder of an office pertaining to a court'.

30 The District Court is established by the District Court Act 1973 (’DC Act’). Division 5, subdivision 2 of that Act makes provision for the Registrars in each proclaimed place in which the Court has a Registry (s 18G) and for the appointment of assistant registrars (s 18I) as well as temporary registrars and assistant registrars (s 18K). The functions of registrars and assistant registrars are set out in s 18H and s 18J. Importantly this includes exercising the functions conferred on them by s 12 and s 13 of the Civil Procedure Act 2006 (CP Act) or as ‘prescribed by the civil procedure rules or the criminal procedure rules.’

31 Section 68(b) of the CP Act provides that:

Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following:
(a) …
(b) to produce any document or thing to the court.

32 Part 33 of the Uniform Civil Procedure Rules 2005 contains rules relating the issue and service of subpoenas, compliance with subpoenas, and access to, inspection of, and the return of documents produced under subpoena. In LG’s case her doctor complied with a subpoena by sending the documents to the Sydney Registry in accordance with r.33.6(4)(b). Rule 33.9 relevantly provides:

(1) This rule applies if an addressee produces a document or thing in accordance with rule 33.6 (4) (b).
(2) On the request in writing of a party, the registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced.
(3) Subject to this rule, no person may inspect a document or thing produced unless the court has granted leave and the inspection is in accordance with that leave.
(4) Unless the court orders otherwise, the registrar may permit the parties to inspect at the office of the registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule.
(5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the registrar in writing of the objection and of the grounds of the objection.
(6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the registrar in writing of the objection and of the grounds of the objection.
(7) On receiving notice of an objection under this rule, the registrar:
(a) must not permit any, or any further, inspection of the document or thing the subject of the objection, and
(b) must refer the objection to the court for hearing and determination.
(8) The registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly.
(9) The registrar must not permit any document or thing produced to be removed from the office of the registrar except on application in writing signed by the solicitor for a party.
Note. See rule 1.3 (2) with respect to the meaning of the reference to a solicitor for a party.
(10) A solicitor who signs an application under subrule (9) and removes a document or thing from the office of the registrar, undertakes to the court by force of this rule that:
(a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding, and
(b) the document or thing will be returned to the registry in the same condition, order and packaging in which it was removed, as and when directed by the registrar.
Note. See rule 1.3 (3) with respect to the meaning of the reference to a solicitor who removes a document or thing from the office of the registrar and the reference to the personal custody of the solicitor.
(11) The registrar may, in the registrar’s discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application.

33 The District Court had issued a Practice Note DC (Civil) No 8, Early Return of Subpoenas. This has since been replaced. Relevantly, it provided:

1.1 The issuing of subpoenas and the inspection of documents is vital to the proper preparation of cases. The Court provides a system for the early production of documents so that parties can meet the standards imposed by Practice Notes.
1.2 The power to deal with subpoenas is delegated to the registrar by a direction under section 13 of the Civil Procedure Act 2005.
…
2.2. …
e) Any party, or the producer, may object to the issuing party about the proposed access order. The issuing party must notify all other parties of the objection. Parties who wish to contest the proposed access order must appear on the return date and argue the question before the registrar.
f) If there is no appearance on the return date, the Court will generally make the proposed access order. There is no need for the parties to appear on the return date if all parties consent to the order sought.

34 The issue of subpoenas to produce documents is an integral part of the litigation process. It is a compulsory process of the Courts used to facilitate the acquisition of evidence. Failure to comply with a subpoena, without lawful excuse, is a contempt of court: r.33.12(1) UCPR. Objection may be taken to the production of documents on lawful grounds, including claims of relevance and privilege, which objection is to be determined by the Court. In the District Court, as the Practice Note and the UCPRs make clear, the power to deal with subpoena process has been delegated to the registrar. In my opinion that subpoena process is an integral part of the Court’s judicial functions, and an essential part of its processes.

35 The actions of Registry Staff in giving access to documents produced under subpoena are part of that function. In doing so, the Assistant Registrars involved are the holders of offices relating to the District Court. In LG’s case, they were undertaking a properly delegated, judicial function of the Court that related to the hearing or determination of proceedings then before the Court, to which LG was a party.

36 LG in her response sought to distinguish the two NG decisions and that of Bell J in Budd. First, she argued that in those cases no objections to access or claims of privilege had been made with respect to the documents in issue. In my view, this submission does not address the true basis of the decisions in those cases. They were concerned with the role of Registry staff and their exercise of the judicial functions of the Court. Because the Registry staff were exercising the judicial functions of the Local Court the manner in which they did so attracted the immunity provided by s 6 of the PIPP Act. Whether or not there were objections or access orders does not alter the functions they were performing.

37 Secondly, LG in her application alleged that the giving of access to her health information was an intentional violation of the District Court’s subpoena procedures. This, she says, distinguishes her case from the principles discussed in the NG cases and Budd. In her submissions in response, her rhetoric concerning this escalated. For the purposes of this determination it was agreed that the parties would accept the facts as alleged in LG’s application. I therefore proceed on the basis that the giving of access by a Registry staff member was an intentional breach of the Registry’s usual procedures. In doing so, I make no judgement as to whether this allegation could be proved.

38 Section 13 of the HRIP Act (and s 6 of the PIPP Act) provides that nothing in those Act ‘affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.’ In my opinion the motivation or intent of the Registry staff member does not alter the fact that the giving of access to documents produced under subpoena relates to the manner in which the court, or the manner in which the holder of an office relating to the court, exercises the court’s functions. I agree with the Respondent that the function plainly related to the hearing and determination of the proceedings before the Court, in which the LG was the plaintiff.

39 Thirdly, LG seeks to distinguish the earlier cases on the basis the provision of access to her health information was not authorized by order, whereas in the earlier cases access was authorized. I do not accept this. The giving of access to her solicitors, albeit assumed to be wrong, relates to and was an integral part of the manner in which the court, or the manner in which the holder of an office relating to the court, exercised the court’s functions.

40 In my opinion the fact that LG’s health information was found in documents produced, subject to objection, to the District Court under a compulsory process delegated to the registrar (for potential use in proceedings to which she was a party) make it apparent that registry staff were dealing with that information as part of the Court’s judicial function. To echo the comments of the President in NZ. The efficient performance of judicial functions depends greatly on there being a system for the management of the subpoena process. In the District Court, as elsewhere, this system is managed by the Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material. The function of giving access to documents of that kind, and to the health information they may contain, is one that ‘relates to’ the exercise by the Court of its judicial functions.

41 Relying on the decision of the Court of Appeal in Nakhl Nasr v State of NSW; George Nasr v State of NSW [2007] NSWCA 101, LG argued that, when access was given to her solicitors, the Court’s judicial function had ceased. I do not accept this.

42 Nasr was a claim for assault, false imprisonment and negligence against Police Officers resulting from an incident in October 2000. One of the matters considered by the Court of Appeal was whether the use at the trial of a charge sheet relating to a prior conviction of one of the Appellants, in 1993, amounted to the use of illegally obtained evidence. The conviction was spent under the Criminal Records Act 1991, as of 13 January 2003, ten years after it was recorded. It was conceded that the charge sheet had been provided to the Respondent by the Local Court after it was spent, and had then been used in evidence. One of the aspects of illegality argued by the Appellants was that the release by the Local Court of the charge sheet amounted to a breach of the PIPP Act. In response, the Respondent argued that there could be no breach due to the operation of s 6 of the PIPP Act. Campbell JA (with whom Beazley and Hodgson JJA agreed) said of this, at [134]:

134 I do not accept that section 6 would have applied, if there had been a disclosure by the keeper of the records of Waverley Court, of this conviction record after 13 January 2003. Any such disclosure would have occurred long after the court had ceased to perform its judicial functions in relation to these particular convictions, and would have no effect on the manner in which the Waverley Court thereafter performed its judicial functions.

43 In my view the principle there stated has no application in the present case. Here there were proceedings under way in the Court to which LG was a party. As part of the ordinary pre-trial process, third party discovery by use of the subpoena process required the production of health information relating to LG, concerning which claims of confidentiality and privilege were made. The case was still running, and the Court was seized of it. The long passage of time which was essential to the decision of the Court of Appeal is not present here. There the Local Court had heard the case more than a decade earlier, and the conviction was spent by the effluxion of time. Here the proceedings were in progress.

44 LG in her submissions also sought to press a number of other contentions which I consider either irrelevant or misconceived. Whether or not the documents in issue would have been subject to a successful claim of privilege, while central to the harm she says has been done to her, is not germane to the issue which I have to consider. Similarly, LG’s argument relying on s 69 of the PIPP Act (but, I think more relevantly the mirror provision in s 71 of the HIRP Act) is irrelevant, because before it can have any application the Act must apply.

45 LG also relied on the decision of the President in N (No. 2) v Director General, Attorney General's Department [2002] NSWADT 33 to ground a submission that I should inspect the documents in issue before determining the issue in question. That was an application under the Freedom of Information Act 1989 for access to documents held by the Victims Compensation Tribunal. One of the central questions was whether the documents in issue related ‘to the court's judicial functions’, in which case s 10 the Act (quoted at [28] above) provided that neither the Tribunal, nor its registry staff, were an agency for the purposes of that Act. The President found that some of the documents were obviously related to the judicial functions, while he examined others to determine the issue. The differences between that case and this are patent. It was a review under the Freedom of Information Act 1989 where the issue was whether the documents related to the Tribunal’s judicial functions. This is a review of conduct under the PIPP Act where the issue is whether the conduct relates to the manner in which the District Court carries out its judicial functions. These are entirely different questions; the procedures adopted under the Freedom of Information Act 1989 are not necessary or applicable here. If they were, because the documents in issue were produced under subpoena, they are obviously related to the Court’s judicial functions.

46 Finally, LG referred to and relied on s 62 of the PIPP Act (mirrored in s 68 of the HIRP Act) which prohibits public sector officials from intentionally disclosing personal information (health information) ‘about an individual to which the official has or had access in the exercise of his or her official functions.’ For this to apply to the conduct in issue, the HIRP Act must have applied. It did not because of the immunity in s 13, just as the PIPP Act does not apply because of immunity in s 6 of that Act.

Conclusion

47 As a result I think that this Tribunal has no jurisdiction to hear LG’s review application. It will be dismissed accordingly.

48 In NZ the President pointed out, at [20], that his decision was ‘not in any way to deny the importance of care being shown in Registry practices so as to ensure that undue violations of privacy are avoided in giving access to Court files.’

49 The same note of caution need to be drawn with regard to the receipt, managements, security of, and access to documents produced under subpoena, especially documents containing health information. It is an unfortunate fact that compulsory processes often catch highly sensitive and personal health information, which is not relevant to the issues for determination. The potential for significant, unnecessary harm and upset to be caused to the individuals concerned, should that information be disclosed, points to the need for great care to be taken in the management of that judicial process.