LN v Sydney South West Area Health Service (GD)

[2010] NSWADTAP 36

Appeal Panel - Internal

CITATION:	LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 36
PARTIES:	APPELLANT LN RESPONDENT Sydney South West Area Health Service
FILE NUMBER:	099070
HEARING DATES:	8 April 2010
SUBMISSIONS CLOSED:
DATE OF DECISION:	28 May 2010
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	PRIVACY – Jurisdiction – Out of Time – Reviewable Conduct – Procedural Fairness – Leave to appeal refused – Privacy and Personal Information Protection Act 1998 - Health Records and Information Privacy Act 2002
DECISION UNDER APPEAL:	LN v Sydney South West Area Health Service [2009] NSWADT 278
FILE NUMBER UNDER APPEAL:	093170
DATE OF DECISION UNDER APPEAL:	09/29/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 LN v Sydney South West Area Health Service [2009] NSWADT 278 LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38
REPRESENTATION:	APPELLANT In person RESPONDENT A Britt, counsel / B Woolley, legal officer
ORDERS:	1. Application for leave to appeal Order 2 refused. 2. Registrar to notify the parties of directions in relation to Appeal No. 109017.

1 LN has alleged that the functionaries of a hospital managed by the respondent agency have breached the State’s privacy laws in dealing with personal information about her. The laws are the Privacy and Personal Information Protection Act 1998 (Privacy Act) and the Health Records and Information Privacy Act 2002 (HRIPA).

2 Her original application to the agency, dated 29 April 2009, named five individuals (Harding, Leahy, Nossar, Hughes, Whalan), and made a set of complaints about the conduct of each of them. The agency refused to deal with the application as it related to the first four functionaries. It was of the opinion that the complaints against the first three persons were out of time, and the complaint against the fourth person did not raise any conduct regulated by the laws mentioned. It found no contravention in respect of the complaint against the fifth person.

3 The appellant applied to the Tribunal for review of the conduct. The Tribunal agreed with the agency’s assessment as to the complaints against the first four persons. See: LN v Sydney South West Area Health Service [2009] NSWADT 278 (oral, 29 September 2009; in writing, 6 November 2009). It has since dealt with the case in relation to Whalan’s conduct, and ruled that no further action is warranted (see LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38).

4 This appeal relates to the decision in the first case.

5 The issue of ‘summary dismissal’ is an interlocutory one under the scheme of the Administrative Decisions Tribunal Act 1997 (ADT Act). An interlocutory appeal may only be made with the leave of the Appeal Panel, which, for this purpose, can be constituted by a presidential member. See generally, ADT Act, s 24A and s 113(2A).

6 Directions were given for the hearing on the leave question on 8 April 2010 (following dismissal of an application by an agent to represent her at the appeal). LN’s main submissions were filed on 23 March 2010. The respondent’s main submissions were filed, as directed, on 5 May 2010, and dealt, as directed, with (a) evidentiary objections by the appellant to the Tribunal’s finding that the conduct was out of time; and (b) the objections by the appellant to the failure of the member to disqualify himself. It was agreed that the decision would be made on the papers (ADT Act, s 76).

Out of Time

7 Under the Privacy Act, s 53(3)(d), an application for review of conduct must ‘(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application’. The same position applies in relation to HRIPA complaints against public sector agencies (see HRIPA, s 21, s 42). In the case of both law, s 55 of the Privacy Act applies. A person who is not satisfied with the agency’s response ‘may apply to the Tribunal for a review of the conduct that was the subject of the application under s 53’.

8 LN had filed her application with the agency on 29 April 2009. In response to queries from the agency seeking clarification, she sought in her reply of 3 June 2009 to widen her application to include other items of conduct. The agency did not accept the widening of the original application. It dealt with the matter on the basis of the 29 April 2009 application.

9 The agency only accepted that item 5 of the conduct, as elaborated, was within jurisdiction. It was expressed as follows ‘5. Ms Jan Whalan [Director of Corporate Services, Royal Prince Alfred Hospital] sent a letter on 30 January [09] admitted that she was aware that I will come on [due date] to [the hospital], so that she accessed to my health information to know when and where will I get to [the hospital] for PET Scan.’

10 In the case of the items referring to the first three persons’ conduct, the agency acknowledged that they had engaged in disclosures of her personal information without her consent. But it declined to go on and examine the question of whether one of the exceptions permitting disclosure without consent applied. Instead, it formed the view that these were matters of which she had been aware for more than 6 months, and so these complaints were out of time.

11 In reaching that conclusion, it had regard to the contents of a separate application under the privacy laws that had previously been made to the agency, dated 3 September 2008. Having regard to the matters it raised, it formed the view that LN would have become aware of the impugned conduct somewhere between March and May 2008. Therefore they were now out of time.

12 The Tribunal agreed with the agency. It did not set out in its reasons for decision the agency’s reasoning. This is found in the agency’s internal review report, where various parts of the text of the 3 September 2008 application are extracted. I need not repeat that here, as LN has a copy of that material.

13 Before the Tribunal LN disavowed any knowledge of the contents of the 3 September 2008 application. It should be explained that LN is of an Arabic background, and has appeared at the Tribunal with the assistance of an Arabic interpreter and, as well, a friend, Mr TA. (Before the Tribunal Mr TA had been granted leave, with LN’s consent, to appear for her as a non-lawyer agent. Leave was refused for the purpose of the Appeal Panel proceedings.)

14 Her position is that the application of 3 September 2009 was prepared on her behalf without her knowledge. Her only known likely associate in making such an application is Mr TA. The Tribunal did not accept that disavowal, carrying with it the imputation that another person, in all likelihood Mr TA, had engaged in a fraudulent act.

15 Clearly there is a conundrum posed by a time limit expressed by reference to when a person ‘becomes aware’ of ‘conduct’. Say a doctor wrongly discloses medical information about a patient to a credit provider. The patient may become ‘aware’ of the disclosure at one point in time, but only become ‘aware’ of the possibility that the disclosure may contravene the privacy laws at another point in time. There is lack of clarity as to which point matters for the purpose of this test. It is appropriate to adopt a beneficial approach in relation to the type of ‘awareness’ that is required before time begins to run.

16 In my view, and subject to the liberal approach I favour, I am satisfied that the agency and the Tribunal had ample material to reach the conclusion it did. The agency’s submissions deal, in my view, persuasively and comprehensively, with the evidentiary material upon which the agency relied. I refer the appellant to pages 11 to 13 of the agency’s submissions.

17 I also agree with the agency’s submissions that she was given an adequate opportunity to present factual evidence as to the date when she became aware, and did not take that opportunity.

Conduct not regulated by the laws

18 The conduct alleged against Mr Hughes was ‘breach my freedom of information and human rights for asking me of the reason of why I came and put me on surveillance and monitoring without telling me in advance’. This was further explained to the agency as Mr Hughes asking the appellant why and where she went when she visited the hospital. In response to the agency’s questions, LN provided further detail of this assertion, but it did not include any references to transactions that gave rise to the incorporation of personal information into a record or the use or disclosure of information contained in a record. Accordingly, the agency submitted that the conduct of Mr Hughes was not governed by the relevant principles. The Tribunal upheld the objection. The matters alleged were, in my view, clearly outside the scope of the Privacy Act and HRIPA.

Procedural Fairness and Bias

19 LN also raises in her appeal grounds the question of whether the Tribunal handled her case fairly, and whether the member should have disqualified himself for bias. There is no reference in the Tribunal’s decision to any objection that the member disqualify himself.

20 The agency’s appeal submission was prepared by the lawyer who appeared at first instance. The lawyer can not recall any bias objection, and none appears from a perusal of the transcript. I will not repeat here the various allegations against the member made in the notice of appeal. I agree with the submissions of the agency, drawing on the principles expounded in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] to [8], that nothing is raised that would lead a fair minded lay observer reasonably to apprehend that the member did not bring an impartial mind to the resolution of the dispute.

21 LN’s further criticism in her appeal grounds and submissions is that the member did not ‘protect’ her, as a litigant in person, from the agency’s case, and the method of presentation of that case adopted by its legal representatives. I consider that the Tribunal accorded LN a fair and reasonable opportunity to have her case determined.

Leave

22 The agency would be put to unnecessary further expense and inconvenience if it was called on to respond to such an appeal. I refuse leave for the appeal to proceed.

23 As noted earlier, the Tribunal has made its final decision in relation to the Whalan conduct. The appellant has lodged an appeal in that regard (no leave is required). As indicated at the directions hearing, that appeal (Appeal No. 109017) will now be progressed.

Order

1. Application for leave to appeal Order 2 refused.

2. Registrar to notify the parties of directions in relation to Appeal No. 109017.