LN v Sydney South West Area Health Service

[2009] NSWADT 325

CITATION:	LN v Sydney South West Area Health Service [2009] NSWADT 325
DIVISION:	General Division
PARTIES:	Applicant: LN Respondent: Sydney South West Area Health Service
FILE NUMBER:	093024
HEARING DATES:	2 & 3 November 2009
EXTEMPORE DECISION DATE:	3 November 2009
DATE OF DECISION:	31 December 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Appointment of representative
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules 1998
CASES CITED:	LN v Sydney South West Area Health Service [2009] NSWADT 278
REPRESENTATION:	Applicant Representative: In person Respondent Representative: A Britt, barrister
ORDERS:	1. LN’s application to be represented by TA in these proceedings is refused.

1 In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs.

2 LN was a patient at a hospital operated by the respondent. She has sought a review of conduct of the agency under the Privacy and Personal Information Protection Act 1998 (‘PPIP Act’) and the Health Records and Information Privacy Act 2002 (“the HRIP Act”) and she asserted a number of breaches of the Information Privacy Principles contained in the PPIP Act and the Health Privacy Principles contained in the HRIP Act by the agency.

3 At the commencement of the hearing in this matter on 2 November 2009 LN applied for leave to be represented in these proceedings by an agent (‘TA’). I refused that request. LN has requested written reasons for that decision under section 89 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) and these reasons are provided in response to that request.

4 In another matter currently before the Tribunal LN has been represented TA. In that matter Mr Britt, counsel for the Respondent objected to TA appearing on LN’s behalf and presented argument as to why he should not be permitted to do so.

5 I agreed with Mr Britt’s argument and while I allowed TA to represent LN on that occasion, I advised her that TA would not be permitted to represent her at further hearings in that matter. My reasons for that decision are set out in LN v Sydney South West Area Health Service [2009] NSWADT 278.

6 As noted above, LN has sought leave to be represented by TA in this matter. Mr Britt again objected to TA appearing on LN’s behalf. He repeated the argument that he had previously presented.

7 Mr Britt asserted that leave to appear should be refused pursuant to section 71(3)(a) of the ADT Act. The objection was made on the basis that leave should only be granted if the Tribunal is satisfied that TA has a sufficient degree of competence to provide effective representation for LN, and that TA has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings (see Administrative Decisions Tribunal Rules 1998 clause 20A).

8 Mr Britt argued that the Tribunal could not be satisfied TA has a sufficient degree of competence to provide effective representation for LN. He also relied on my previous ruling in support of that submission.

9 I agreed with Mr Britt’s argument and I refused LN’s application to be represented by TA.

10 In LN v Sydney South West Area Health Service [2009] NSWADT 278 I referred to the need for a representative in proceedings like these needs to have the ability to identify the conduct by the respondent that is allegedly in breach of the applicable legislation, adduce evidence in support of the allegations made and to understand the procedure whereby such allegations may be brought to hearing. The representative also needs to have the ability to be able to present argument in relation to the evidence and submissions put by the respondent (see HV v Commissioner of Police [2009] NSWADT 100 at paragraph [6]).

11 On the basis of the manner in which these proceedings have been conducted to date, there is good reason to doubt that TA possesses all of these abilities. It is my view that TA should not be permitted to represent LN in this matter.

Orders

1. LN’s application to be represented by TA in these proceedings is refused.