LN v Sydney South West Area Health Service (GD)
[2010] NSWADTAP 16
•9 March 2010
Appeal Panel - Internal
CITATION: LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16 PARTIES: APPELLANT
LNRESPONDENT
Sydney South West Area Health ServiceFILE NUMBER: 099070 HEARING DATES: 27 January 2010 SUBMISSIONS CLOSED: 27 January 2010
DATE OF DECISION:
9 March 2010BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Representation – Non Lawyer Agent – Application for Leave – Objection – Application Refused – Administrative Decisions Tribunal Act 1997, s 67 – Administrative Decisions Tribunal Rules 1998, r 20A DECISION UNDER APPEAL: LN v Sydney South West Area Health Service [2009] NSWADT 278; LN v Sydney South West Area Health Service (No. 2) [2010] NSWADT 38 FILE NUMBER UNDER APPEAL: 093170 DATE OF DECISION UNDER APPEAL: 02/08/2010 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Civil Procedure Act 2005
Criminal Procedure Act 1986
Health Records and Information Privacy Act 2000
Local Courts (Criminal and Applications Procedure) Rule 2003
Privacy and Personal Information Protection Act 1998CASES CITED: Altaranesi v Whalan [2010] NSWSC 149
Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 320
HV v Commissioner of Police [2009] NSWADT 100
LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38
LN v Sydney South West Area Health Service [2009] NSWADT 278
Macedo v Chief Commissioner of State Revenue [2009] NSWADT 147
Paragon Finance plc v Noueri (Practice Note) [2001] 1 WLR 235
Vice-Chancellor, University of NSW v Curtin [2006] NSWADT 271REPRESENTATION: APPELLANT
RESPONDENT
In person
A Britt, counsel / B Woolley, legal officerORDERS: Leave for Mr TA to represent the appellant is refused
1 The appellant, Ms LN, applied on 22 June 2009 to the Tribunal, pursuant to the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2000, for review of certain conduct of certain personnel working at the Royal Prince Alfred Hospital, Camperdown. The hospital falls under the overall responsibility of the Sydney South West Area Health Service, and that agency is the respondent to the application.
2 The appellant referred in her application to the Tribunal to five items of conduct. The Tribunal summarily dismissed the application in respect of the first four items on the ground of want of jurisdiction. It allowed the application to proceed in respect of the fifth item (relating to correspondence sent by an administrative officer, Ms Jan Whalan, Director of Corporate Services, to LN on 30 January 2009). See LN v Sydney South West Area Health Service [2009] NSWADT 278 (ex tempore decision date, 29 September 2009, written reasons provided on or about 9 November 2009).
3 The appellant appealed by notice of appeal filed 13 November 2009, the appeal being subject to the provisions of ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The notice of appeal was listed before me for directions on 27 January 2010. I gave directions for an application for leave to appeal against an interlocutory decision to be filed, and fixed a date for the hearing of that application. (Summary dismissal is an interlocutory decision for the purposes of the ADT Act, see s 24A(1)(h); the leave to appeal requirement being at s 113(2A), (2B).)
4 I requested the Tribunal below to proceed to deal with the matter over which it was satisfied it had jurisdiction. The Tribunal dealt with the case on the papers, and published its decision on 8 February 2010: LN v Sydney South West Area Health Service (No 2) [2010] NSWADT 38. It dismissed the application.
5 At the directions hearing before me, Mr Britt of counsel on behalf of the respondent moved that the Tribunal not give leave for Ms LN to be represented by a non-lawyer agent, Mr TA.
Relevant Provisions
(1) Administrative Decisions Tribunal Act 1997
‘ 71 Representation of parties
(1) A party to proceedings before the Tribunal may:
(a) appear without representation, or
(b) be represented by an Australian legal practitioner, or
(b1) with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner, or
(c) …
(2) A person who is not an Australian legal practitioner may, with the consent of a party to proceedings, apply to the Tribunal for leave to represent the party as the party’s agent in the proceedings or in part of the proceedings.
(3) The Tribunal may:
(a) grant or refuse leave on an application made under subsection (2), and
(b) revoke any leave that has been granted.
(3A) The rules of the Tribunal may make provision for or with respect to the following matters:
(a) the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party,
(b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave.
Note. Section 91A provides that the President may issue practice notes for the Tribunal in relation to any matter with respect to which rules may be made.’
(2) Administrative Decisions Tribunal Rules 1998
‘ 20A Granting and revocation of leave for agent to represent party
(1) This rule provides for the circumstances in which it is appropriate under section 71 of the Act for the Tribunal to grant, refuse or revoke leave for an agent to represent a party in proceedings, or part of proceedings, in the Tribunal.
Note. Section 71 (3A) of the Act provides that the rules of the Tribunal may make provision for or with respect to the following matters:
(a) the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party,
(b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave.
(2) It is appropriate for the Tribunal to grant leave to a person to represent a party as the party’s agent in proceedings if the Tribunal is satisfied that the person has:
(a) a sufficient degree of competence to provide effective representation for the party, and
(b) the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings.
(3) It is appropriate for the Tribunal to refuse leave to a person to represent a party as the party’s agent in proceedings if the Tribunal is satisfied that the person does not have the qualities referred to in subrule (2).
(4) It is appropriate for the Tribunal to revoke leave granted to a person to represent a party as the party’s agent in proceedings if the Tribunal is satisfied that:
(a) the party no longer consents to the person representing the party as the party’s agent, or
(b) the person applied for leave to represent that party as the party’s agent without the consent of the party, or
(c) the person does not have the qualities referred to in subrule (2) to act as the party’s agent, or
(d) the party is, or has become, an incapacitated person within the meaning of section 71 of the Act.
Note. Section 71 of the Act enables the Tribunal to appoint a person to represent a party who is an incapacitated person.
(5) Nothing in this rule limits the matters that the Tribunal may take into account in deciding whether it is, or is not, appropriate for the Tribunal to grant, refuse or revoke leave for a person to represent a party as the party’s agent in proceedings.’
6 The Tribunal below dealt with a similar objection. It made a confined grant of leave for TA to appear. It said:
‘11 Mr Britt argued that the Tribunal could not be satisfied TA has a sufficient degree of competence to provide effective representation for LN. In support of that submission he pointed to the material filed in the matter on behalf of LN and the submissions that TA had made in the matter.
12 I agreed generally with Mr Britt’s argument. As was observed by Judicial Member Wilson R in HV v Commissioner of Police [2009] NSWADT 100 at paragraph [6], 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. On the material already filed on behalf of LN, and the manner in which the proceedings have been conducted to date, I doubt that TA possesses all of these abilities. However, in light of the fact that all parties were present; that LN asserted that her health was such that she could not represent herself; that LN asserted that she wished to be represented by TA; and that an interpreter was present to assist LN, I agreed that TA could represent LN on that occasion. However, I advised LN that TA would not be permitted to represent her at further hearings in the matter.’
7 The Tribunal’s decision refusing leave is one of the subjects of the appeal. It is challenged at point 2 under ‘questions of law’, and at point (B) of the application to extend the appeal to the merits. Point (B) is followed by 19 numbered paragraphs challenging the merits of the Tribunal’s refusal.
Appellant’s Submissions
8 The appellant’s position is that she only has Mr TA to assist her. She said that she tried to get assistance from the Law Society, but received no reply. She referred to the fact that the Tribunal below had given leave for Mr TA to appear. (As noted above, it was a confined grant of leave.) She said that he is the main person who knows the background to this case, and the circumstances that have given rise to her application for review of the agency’s conduct. I am satisfied that she consents to Mr TA representing her: see s 71(2). As to consent, see further, See also, Macedo v Chief Commissioner of State Revenue [2009] NSWADT 147 (Needham DP).
Agency’s Submissions
9 The agency submits that Mr TA does not have the qualities referred to in subrule (2). The agency refers to the following matters.
- That he is himself the applicant in many matters in which the agency is a respondent either in this Tribunal, the District Court, the Supreme Court, the Industrial Relations Commission, the Government and Related Employees Appeals Tribunal. In its view he will not be able to bring an adequate degree of detachment to his representation of Ms LN.
- In the appeal documents, there is a statement by the appellant that he filed a complaint in her name without her permission. He is the kind of person who files statements with untruths and conduct of that kind is relied upon by the appellant in this appeal. The Tribunal cannot be satisfied that he has the ability to deal fairly and honestly with the Tribunal.
- Because the party has no one else to represent her is not a basis for allowing him to represent her.
- There is a likelihood that he will be a witness in the proceedings that remain to be dealt with by the Tribunal below.
- Further, in all the matters in which he and the agency have been involved in the Tribunal there have been difficulties in comprehending his submissions.
Consideration
10 The case which Ms LN brings to the Tribunal has a complicated factual and administrative history. It raises numerous objections to the conduct of the agency, and alleges numerous contraventions of the privacy legislation. In cases of this kind, care needs to be exercised in giving leave for representation by a non-lawyer friend or support person. It is not a ‘straightforward uncomplicated matter’ to use the words of the Court of Appeal in Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 320, at [81].
11 It will often be better in more complicated matters where a person seeks to have lay representation for the Tribunal to elicit relevant submissions from the party directly; and, if there are language difficulties, via an interpreter. The Tribunal is meant to be a low cost, inexpensive and procedurally simple environment. Section 73 of the ADT Act encourages the Tribunal to manage actively proceedings before it, and to assist parties in putting their cases. For instance,
‘(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so – to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.’
12 Mr Britt’s submission that Mr TA is himself undertaking a number of personal actions against the present respondent, the Sydney South West Area Health Service, or related parties) is borne out by my further enquiries.
13 In this Tribunal he is applicant in two applications brought under the privacy legislation for review of the agency’s conduct (matters nos. 083367, 093255). There is one closed file involving Mr TA as an applicant to which the Sydney South West Area Health Service is a respondent (no. 091126). Recently in the Supreme Court, Harrison J dealt with a case brought in the Local Court by Mr TA: Altaranesi v Whalan [2010] NSWSC 149 (5 March 2010). (Thus far, I have followed the practice adopted by the Tribunal, to which the respondent agency had no objection, of using a pseudonym. However, in the case to which I now refer there is no name suppression. The result is that TA’s identity is made apparent.) The cover page names as defendants to those proceedings three of the five individuals named in Ms LN’s present review application as persons who breached her information privacy rights (i.e. Ms Whalan, Mr Leahy and Mr Harding).
14 In the course of his reasons, his Honour said:
‘ HIS HONOUR : The plaintiff was once a cleaner employed by the Sydney South Western Area Health Service. He ceased that employment on 19 January 2009. The circumstances in which that occurred are not entirely clear and may ultimately be controversial but are not presently critical. However, whatever happened to the plaintiff in that workplace has now armed him with a strong and passionate desire to seek vindication for what he feels were a series of wrongs done to him by fellow workers. To that end he has commenced several sets of proceedings in various jurisdictions. One of those was commenced in the Sutherland Local Court. The decision of the magistrate in those proceedings is the subject matter of the plaintiff’s present application to this Court.
Background
2 The plaintiff instituted a private criminal prosecution against the defendants, his former co-workers, on 12 May 2009. It was heard in part on 10 June 2009. However, the plaintiff sought to amend the application. The defendants opposed this. Magistrate Schurr ultimately heard the matter on 15 July 2009 and dismissed the proceedings on the defendants’ application upon the basis that it was invalid by reason of duplicity and because it was in breach of s 175 of the Criminal Procedure Act 1986 and reg 17 of the Local Courts (Criminal and Applications Procedure) Rule 2003. The plaintiff was ordered to pay the defendants’ costs in the sum of $2,000.’
15 Mr TA did represent himself before Harrison J. He was successful in having the orders of the Magistrate set aside, and he was given leave to file an amended application, with a further decision then to be taken by Harrison J as to whether he should be permitted to proceed.
16 As a postscript to his decision, his Honour made the following observations:
‘ Some further matters
64 It will be apparent that the circumstances that give rise to these proceedings are somewhat unusual although by no means unique. As I have already noted, the plaintiff seeks some degree of recognition and vindication for the hurt he feels he has suffered at the hands of others who have been unfair to him. He told me that he had been punched and victimised and that when he reported these matters he was ignored or fobbed off. He sought redress in the Government and Related Employees Appeal Tribunal but apparently without success. I am informed that he was dismissed for misconduct but no details of that assertion are before me and it would appear to be contentious. The plaintiff has also instituted proceedings under s 84 of the Industrial Relations Act, presumably contending that his dismissal was harsh, unreasonable or unjust. He has in addition commenced a number of matters against the Sydney Southwest Area Health Service alleging breaches of the Health Records and Information Privacy Act and the Privacy and Personal Information Protection Act in the Administrative Decisions Tribunal. Some of those matters have been heard and the complaints have been dismissed. Some of them are concerned with issues that are referred to in the plaintiff’s application filed in the Local Court which was heard by her Honour and which is the subject of the plaintiff’s case before me.
65 The plaintiff plainly demonstrated that he is emotionally very troubled by all that has beset him. He became upset in my Court. He reiterated that what he really wanted was an apology. I have assumed that in the context of these several pieces of litigation, the notion that the defendants might apologise to the plaintiff has either been overlooked or intentionally disregarded. I recognise immediately that those from whom an apology is sought may themselves quite properly or at least understandably feel that one is neither called for nor warranted and should not be offered. I am in no position to express any view about this and I do not do so. And yet the proceedings continue.
66 The plaintiff’s attempts to achieve some appropriate outcome or closure by the commencement of criminal proceedings against the defendants may appear to some to be incongruent and inappropriate and considerably less than the most suitable course to pursue towards that end. I refrain from expressing a view about that as well. I certainly consider that the plaintiff would profit from some professional legal advice and assistance about the wisdom of continuing to prosecute these proceedings to their ultimate but as yet uncertain conclusion. I can presently have no reasonable anticipation or expectation of what that conclusion may be or when it will arrive. I can say, however, that the physical and emotional toll of this type of adversarial litigious pursuit, which is so often driven by highly commendable but typically elusive matters of principle, is generally if not inevitably more destructive than restorative.
67 I trust that the plaintiff and the defendants will consider these matters, as well as the terms of s 56 of the Civil Procedure Act 2005, in the weeks ahead as they contemplate what steps they will next take in this case.’
17 I note that the Tribunal has a broad discretion in this matter. The considerations set out in rule 20A sub-rule (2) are not exhaustive: see sub-rule (5). Prior to these amendments being made, I dealt at some length with the considerations that might be relevant to the exercise of a discretion to refuse leave for a person to be assisted by a friend. See Vice-Chancellor, University of NSW v Curtin [2006] NSWADT 271 at [42]-[60]. A number of the points made in that discussion apply, with more force, to an application for permission to have a friend appear as a representative or advocate, and therefore run the case.
18 In my view it is not likely to be in the interests of the orderly despatch of business in the Tribunal that persons who have been presently or recently involved in bringing their own cases against a respondent be permitted to represent other persons with cases against the same respondent. There is a real risk that they will bring to their role as agent the grievances which have led them to take personal action against the respondent. There is a real risk that they will use the case in which they appear as agent as a further platform for airing their grievances with the agency, rather than their ‘client’s’ grievances. The agent may be ‘using the litigant as a puppet’: see Paragon Finance plc v Noueri (Practice Note) [2001] 1 WLR 235 at [56].
19 In this case the risks to which I have alluded are very high.
20 I have read the two decisions of the Tribunal below in this matter. It is apparent that in relation to, at least, one aspect of Ms LN’s complaint, Mr TA is seen by her as having material evidence. See Tribunal reasons in decision no. 2 at [37]-[39] and [45]. This raises a further difficulty standing in the way of the effective presentation of her case.
21 In my view, it would be more conducive to the orderly resolution of this appeal if there was no involvement in it by Mr TA.
22 The matters to which I have referred are sufficient in this case to refuse leave. I do not need to address the other points made by Mr Britt.
23 Leave for Mr TA to represent the appellant is refused.
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