Michos v Eastbrooke Medical Centre Pty Ltd
[2018] VSC 517
•6 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00633
| CON MICHOS | Plaintiff |
| v | |
| EASTBROOKE MEDICAL CENTRE PTY LTD | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 June 2018 |
DATE OF RULING: | 6 September 2018 |
CASE MAY BE CITED AS: | Michos v Eastbrooke Medical Centre Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 517 |
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ADMINISTRATIVE LAW – Application for leave to appeal decision of the Victorian Civil and Administrative Tribunal – Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331 – Victorian Civil and Administrative Tribunal Act 1998, ss 98, 148 – Health Records Act 2001, ss 5, 25, 34 – Leave to appeal granted on limited grounds.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Mr T Warner | Allens |
HER HONOUR:
Mr Michos wanted a copy of a medical assessment report from the Transport Accident Commission (‘TAC’). At his request, the TAC faxed it to the Eastbrooke Family Clinic Essendon (‘the clinic’), owned by the defendant, namely Eastbrooke Medical Centre Pty Ltd (‘Eastbrooke’). A dispute subsequently arose between Mr Michos and Eastbrooke regarding his access to the copy of the medical report. As it eventuated, Mr Michos obtained the medical report via another medical clinic.
This proceeding arises out of the complaint that Mr Michos made against Eastbrooke in the Victorian Civil and Administrative Tribunal (‘the Tribunal’). He alleged that Eastbrooke breached the Health Records Act 2001 (‘HRA’) and sought compensation and other relief. The Tribunal held that the complaint was not proven and made orders dismissing it.[1] Mr Michos now seeks leave to appeal the orders of the Tribunal.
[1]Orders made on 25 January 2018: Exhibit ‘CM-1’ to the affidavit of the plaintiff affirmed on 28 February 2018 (‘the first Michos affidavit’); Michos v Eastbrook Medical Centre Pty Ltd [2018] VCAT 119 (25 January 2018) (‘Michos’).
Summary
Mr Michos will be given leave to appeal on a limited basis. Leave to appeal will be limited to the following questions as to whether the Tribunal erred in law by construing:
(a) section 25 of the HRA with reference to the phrase ‘necessary for one or more of its functions or activities’; and
(b) the question of whether a request for access lapses to be relevant to the obligations in s 34(2)(c) of the HRA.
Background
Mr Michos made an initial complaint to the Health Complaints Commissioner (‘the Commissioner’).[2] The Commissioner then wrote to Eastbrooke on 5 May 2017.[3] The letter included the following.
[2]Neither the complaint nor Eastbrooke’s response is in evidence before the Court at this stage.
[3]Exhibit ‘CM-7’ to the affidavit of the plaintiff affirmed on 14 May 2018 (‘the second Michos affidavit’).
As you are aware, the Health Records Act 2001 (Vic) (the Act) governs the management of health information in Victoria. Section 25(1) of the Act gives an individual a right of access to health information about themselves.
Sections 28, 29 and 33-35 set out the process for exercising the right given by section 25. Under section 33 an individual may request an organisation to provide access to their health information in the forms set out in section 28. Within 45 days after receiving a request, the organisation must either give notice to the individual that access is refused for a reason set out in the Act, or give access to the health information in accordance with Part 5 of the Act and Health Privacy Principle 6.
In your letter dated 12 April 2017 you state your practice procedure involves:
“3.Arrange an appointment for the patient or the legally nominated representative of the patient to attend the practice to be granted access to the specific aspects of the personal health information as determined by the patient’s GP or the medical coordinator.”
Section 29 requires you to provide access in the way stipulated by the individual [see section 33(3)(c)]. The intention of the Act is to give the individual a right of access to health information about them, in the manner of their choice.
Mr Michos requested a copy of the medical report which equates to right of access under section 28(1)(b) and did not request an explanation as per 28(1)(c). Therefore it was not appropriate for an appointment to be made for Mr Michos to be able to access the medical report. Rather Mr Michos should have been advised that he could collect the medical report once a suitably qualified health service provide had checked that the information did not pose a threat to life or health of the individual or another person [section 26] and did not contain information given in confidence [section 27].
It is evident from the transcript of the later Tribunal proceedings that Eastbrooke subsequently agreed to change its policy regarding access to health information, so that patients were not always required to make an appointment with a doctor to receive a copy of their health information.[4]
[4]Transcript of Proceedings, Michos v Eastbrook Medical Centre Pty Ltd (Victorian Civil and Administrative Tribunal, H176/2017, Senior Member Dea, 21 December 2017) 115 (‘Transcript’).
Mr Michos subsequently exercised his right to have his complaint referred to the Tribunal. Mr Michos’ particulars of his Tribunal claim[5] included allegations that he had been a patient of the clinic for approximately 25 years and had made a request to access a copy of health information which was identical to multiple previous requests made over many years. He alleged that an employee of Eastbrooke, Ms Meredith Duggan, outright refused him access. Mr Michos says he then made a formal complaint on or around 21 November 2016 to Eastbrooke’s business manager, Mr Jim Hacquoil, about this issue, and then the subsequent complaint to the Commissioner on or around 10 April 2017. Mr Michos alleged that Eastbrooke’s refusal to provide him access was in breach of the HRA. He claimed loss, damages, an unreserved apology from Eastbrooke and costs.
[5]Handed up by Eastbrooke during the hearing in this Court on 6 June 2018 (without objection from Mr Michos). It is dated 23 October 2017 and unsigned. Eastbrooke’s particulars of defence are not in evidence at this stage.
The Tribunal made factual and legal findings in respect of Mr Michos’ complaint.[6] The Tribunal held there was no breach of the HRA and even if there was, the Tribunal was not prepared to make an award of compensation on the available evidence.[7] The Tribunal indicated the only matter it needed to decide was whether the events of 4 November 2016 amounted to a breach of the HRA.[8]
[6]Michos [2018] VCAT 119; reasons attached to orders made on 25 January 2018: Exhibit ‘CM-1’ to the first Michos affidavit.
[7]Michos [2018] VCAT 119, [21].
[8]Ibid [30].
The Tribunal made factual findings indicating it preferred Ms Duggan’s evidence about the conversation with Mr Michos on 4 November 2016:
That is, I accept she informed him that a copy of the [medical] report could only be released in the context of an appointment with a doctor and that she made an appointment for that to occur on 15 November 2016.[9]
[9]Ibid [48].
The Tribunal found that Eastbrooke had ‘collected’ the medical report because it was convenient to Mr Michos, who used the clinic as, in effect, a post office box.[10] The report was not part of the therapeutic relationship. Rather, it was prepared to assist the TAC to assess its legal obligations.[11] The Tribunal held that the circumstances did not give rise to access-related obligations under the HRA.[12]
[10]Ibid [58], [62].
[11]Ibid [61].
[12]Ibid [64].
The Tribunal held that, even if the finding above (on access-related obligations) was incorrect, Mr Michos had not proven a breach of the HRA because: a) the HRA provides access be provided as soon as reasonably practicable but after no more than 45 days of receipt of the request; and b) his request for access effectively lapsed when he obtained the report within hours of his request, communicated as such to the clinic and the 15 November 2016 appointment was cancelled.[13] Further, on Mr Michos’ own evidence he had been willing to attend an appointment if a doctor was unwilling to release the report directly to him, and so one of his preferred means of receiving access would have been met.[14]
[13]Ibid [65]–[68].
[14]Ibid [70].
The Tribunal held that even if there was a breach of the HRA, there was no causal link between Mr Michos’ claim for travel costs and costs associated with the cancellation of an unrelated legal appointment in circumstances where Mr Michos was unable to explain why it was necessary he obtain the report on 4 November 2016.[15] The Tribunal held that in the absence of any imperative for Mr Michos to have the requested medical report that day, ‘other than his own preference’, there was ‘no basis for an award for embarrassment, humiliation or stress’.[16]
[15]Ibid [72], [73].
[16]Ibid [74].
Applicable Principles
Mr Michos seeks leave to appeal to the Tribunal’s decision to this Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). Section 148(1) restricts appeals to ‘questions of law’ and requires leave to appeal.
Mr Michos’ application for leave to appeal was made on 21 February 2018 by way of originating motion. Accordingly, s 148(2A) of the VCAT Act does not apply to the question whether leave to appeal is to be granted in these proceedings. That provision does not apply to applications for leave to appeal made before the date on which it commenced,[17] being 1 May 2018.[18]
[17]VCAT Act s 170.
[18]Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 s 2(4).
In relation to s 148 applications for leave to appeal Tribunal decisions to the Trial Division, Warren CJ in Metricon Homes Pty Ltd v Softley[19] found that ‘the test for leave to appeal is not codified in statute; the applicable test is the Hulls test as developed and applied by the courts.’[20] As s 148(2A) of the VCAT Act does not apply to this application, the leave application falls to be determined on the principles first established in Secretary to the Department of Premier and Cabinet v Hulls[21] (‘Hulls’), and as subsequently developed by this Court.
[19](2016) 49 VR 746 (‘Metricon’).
[20]Ibid 769, [67] (Warren CJ).
[21](1999) 3 VR 331.
I summarised those well-established principles in Willner v Department of Economic Development, Jobs, Transport and Resources[22] and reiterate them here.
[22][2015] VSC 504, [8].
·The question of law must ‘bear upon the granting of that relief’.[23]
[23]Hulls (1999) 3 VR 331, 335 [9].
·‘The question of law must be such that, if there is shown to be error in respect of the question, the appellant’s claim to relief will thereby be advanced’.[24]
·‘On the other hand, on an application for leave to appeal it cannot be expected that error below be established: that is for the appeal itself. Something less must be sufficient on the application for leave to appeal and ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists. In other contexts, this has sometimes been called a “prima facie case”, or ”an arguable case”, but these are no more than attempts to describe the degree to which an applicant must satisfy the court from which leave is sought that there is a real or significant argument, in favour of the applicant, on the question of law which is identified.’[25]
·‘What is peripheral may be thought less persuasive, in relation to leave to appeal, than an issue which is central’.[26]
·There are cases in which it might be sufficient for the applicant ‘to identify the question of law and its general public importance.’[27]
·‘Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant’.[28]
·‘The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave’.[29]
·‘The question is not whether a finding of fact is regarded as unreasonable, but rather whether the finding of fact was open’.[30]
·‘A question whether there was any evidence to support a particular finding is a question of law’.[31]
·In order to constitute an appellable error, the finding of fact must not just be unsubstantiated (that is, not open on the evidence), it must also have been critical in some way to the ultimate determination.[32]
[24]Ibid.
[25]Ibid 335 [10].
[26]Ibid.
[27]Ibid 336 [11].
[28]Ibid 337 [16].
[29]Ibid.
[30]Janusauskas v Director of Housing [2014] VSC 650, [36].
[31]Moorabool Shire Council v Taitapanui (2006) 14 VR 55, 70 [57].
[32]S vCrimes Compensation Tribunal [1998] 1 VR 83, 90.
Eastbrooke submits that Mr Michos has not articulated with sufficient specificity any question of law and, accordingly, leave should be refused.
Mr Michos’ draft[33] and amended notices of appeal[34] did not outline any questions of law, but simply provided a list of sub-headings. The draft notice of appeal also listed 16 grounds of appeal. Mr Michos filed substantial submissions (73 paragraphs) that outlined his grounds of appeal in respect of each question of law in his amended notice of appeal.
[33]Exhibit ‘CM-2’ to the first Michos affidavit.
[34]Filed on 26 April 2018.
In Fraser v Sperling[35] (‘Fraser’) the Court of Appeal stated:
The existence of a question of law both founds the jurisdiction of the Court and constitutes the subject matter of the appeal itself. For that reason, the question or questions of law that are raised must be clearly stated, and not merely ascertained by reference to the grounds of appeal.
It does not follow, however, that a question of law articulated in a notice of appeal under s 148(1) is to be construed strictly or literally. Fairness dictates to the contrary. Accordingly, the Court will not read a notice of appeal narrowly, and will address questions of law that are identified in the notice of appeal as a whole and perhaps also from surrounding circumstances.[36]
[35][2017] VSCA 53.
[36]Ibid [55]–[56] (citations omitted).
In Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd[37] Warren CJ stated that:
While it is imperative to identify and define a question of law, courts will not read a notice of appeal narrowly so as to oust the appellate jurisdiction over a decision of VCAT. Therefore, if questions of law are not sufficiently identified in the notice, but are nonetheless identified, the court will address them.[38]
[37](2014) 45 VR 771.
[38]Ibid 783 [48]; see also, McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [34]–[38].
Mr Michos is self-represented. As discussed below, several questions of law may be discerned from his submissions.
Is this a case where it is sufficient to simply identify the question of law and its public importance?
Mr Michos says that given the nature and gravity of this matter, including the possible misinformation provided to doctors and the public regarding an individual’s right to access their health information, he should have leave to appeal. In particular, he says the following.
The Tribunals [sic] decision is not entirely clear, however it seems to make the conclusion that an appointment is required by an individual to gain access to a copy of their health information.
In the event that this Court affirms the view of the Health Complaints Commissioner, that an appointment with a doctor for an individual to have access to a copy of their health information in [sic] not required, the Tribunals [sic] decision has the potential to disturb future like decision, which may rely on a decision that have [sic] already been made as a matter of guidance and consistency. Furthermore there may be a risk of future injustice.[39]
[39]Plaintiffs’ submissions, filed on 15 May 2018, [69], [70].
Mr Michos says the Tribunal’s decision has led to incorrect information being published in medical journals that could misinform. Further, that the widespread publication of the medical journals informed a considerable number of doctors and the general public of possible misinformation on the public’s right to request their health information. During oral submissions, Mr Michos referred to a medical journal article he says indicates the practice manager said that the appointment was required.
Eastbrooke rejects Mr Michos’ submissions concerning the medical journals and questions of public importance.
There are certainly a number of submissions made by Mr Michos that must be rejected. Turning to these now.
The Tribunal’s decision is not authority for the proposition that, in Mr Michos’ words, ‘an appointment is required by an individual to gain access to a copy of their health information’.[40] Indeed, the Tribunal’s reasons contradict that proposition.
The Commissioner rightly questioned the Clinic’s [Eastbrooke’s] policy of always requiring patients to attend a doctor’s appointment in order to access health information. However, the Commissioner also accepted that it was appropriate for the Clinic to have a doctor review the report first to assess whether section 26 or 27 applied and access ought to be refused.
I accept it would have been consistent with the HR Act for a doctor to have reviewed the report and assessed whether it could be released with no need for an appointment. However, on Mr Michos’ own evidence, he was willing to attend an appointment if a doctor was not willing to release the report direct to him and that would, presumably, have met one of his preferred means of receiving access within section 28(1)(c). It is difficult in those circumstances to see how he could later complaint that he was asked to do just that.[41]
[40]Ibid [69].
[41]Michos [2018] VCAT 119, [70].
Further, Mr Michos himself asserts that the Tribunal ‘has accepted the [Commissioner’s] view that an appointment is not required for an individual to obtain a copy of their health information.’[42]
[42]Plaintiff’s submissions, filed on 15 May 2018, [15].
The medical articles Mr Michos relies upon are simply reports of the decision. Only one of the exhibited articles contains content.[43] It is titled ‘GP practice prevails in $5K “humiliation” case’, dated 30 January 2018, and appears to be a printout of an article by Mr Antony Scholefield published on the website australiandoctor.com.au. It refers to the Tribunal’s ruling. It does not suggest the decision is authority for the proposition in question. Another exhibit is a printout from another website of a headline which appears to be the same article (same headline, author and date).[44]
[43]Exhibit ‘CM-3’ to the second Michos affidavit.
[44]Exhibit ‘CM-4’ to the second Michos affidavit. Exhibits ‘CM-5’, ‘CM-6’ to the second Michos affidavit do not contain articles about the ruling but are printouts concerning the websites australiandoctor.com.au and medicalobserver.com.au.
Coming now to the issue of public importance.
I find this is a case where it is sufficient to identify the questions of law as they are of public importance. One of the purposes of the HRA is to provide access to health information. There are questions of law identified below concerning the construction of provisions in the HRA regarding collection and access to individuals’ health information. It is of public importance to clarify these provisions to assist in the proper operation of the HRA.
Submissions
Both Mr Michos and Eastbrooke made written and oral submissions. In addition, Mr Michos relied upon two affidavits.[45] Eastbrooke did not file any affidavit material. Each party provided a transcript of the Tribunal proceedings, each being substantially the same.[46]
[45]The first and second Michos affidavits.
[46]For consistency, the references in this ruling are to the transcript provided by one of the Tribunal’s approved providers, namely Epiq Australia Pty Ltd.
Turning now to the grounds upon which Mr Michos seeks leave to appeal. I adopt the headings used by him. I have not reiterated below every submission made by each party, but rather their central submissions. I have considered the case law cited by each party, but do not reiterate it in outlining their submissions. Where necessary, I refer to relevant judicial authority in the analysis of each purported ground of appeal.
Breach of Natural Justice (Procedural Fairness)[47]
[47]To be clear, this heading reflects Mr Michos’ submissions. It is directed towards the hearing rule, whereas the bias rule is dealt with elsewhere notwithstanding it falls within the laws of natural justice.
Mr Michos’ submissions
Mr Michos says that he was not given a fair hearing for the following reasons.
Firstly, Mr Michos says that Eastbrooke relied on evidence it had not filed or served before the hearing. When asked by this Court what documents he was referring to, Mr Michos answered that it was Eastbrooke’s record of his medical appointments. The front page of his TAC medical report was also provided, which disclosed the time that Eastbrooke received the report by facsimile from the TAC. Mr Michos had seen the front page of the report before, but not the facsimile receipt time.
Mr Michos says this occurred despite the Tribunal specifically directing that no new information was to be provided at the hearing to avoid surprises. He says Eastbrooke did not seek leave to file the new evidence. However, during the hearing the Tribunal directed it to produce further evidence. Eastbrooke was permitted to rely upon the evidence produced, which was beyond the evidence contained in the statements of its witnesses.
Secondly, Mr Michos says he was continually faced with new and conflicting evidence during the hearing. It was challenging to present his case and there was no adequate opportunity to prepare. Mr Michos says these circumstances meant he was not afforded an opportunity to know his case before the hearing began. Further, he could not read the evidence because of the font size. The screen shots were too small. Mr Michos says he stated in the transcript at least twice that he could not read the material.
Thirdly, Mr Michos says that he was unwell but was not given an opportunity to adjourn. Nor did he know how to request an adjournment. Mr Michos says a break and an adjournment are distinct. A break of five to ten minutes would not have aided him.
Fourthly, Mr Michos says that he was restricted to the evidence he had at the commencement of the hearing, and so was not provided the same opportunity as Eastbrooke.
Fifthly, Mr Michos says that the evidence produced during the hearing affected the ultimate outcome of the case because by the time it arrived, Eastbrooke’s witness, Ms Michelle Duggan, had left the Tribunal. Consequently, he could not cross‑examine her on the evidence. This meant it could not be established when his alleged medical appointment was created. He says the whole decision was based on Ms Duggan’s evidence that on 4 November 2016 she made and cancelled a medical appointment for him for 15 November 2016. However, the appointment record shows the appointment was cancelled on 15 November 2016. Mr Michos says that the Tribunal stated Ms Duggan did not remember making the appointment. Without Ms Duggan being cross‑examined, it could not be established when the appointment was cancelled. Mr Michos says that this was a major issue that the Tribunal relied on in its decision and it was incorrect.
Sixthly, Mr Michos says that he asked to cross‑examine witnesses but only Ms Duggan was available. He said he preferred witnesses to be there but was ignored. Mr Hacquoil provided a witness statement but Mr Michos could not cross‑examine him.
Seventh, Mr Michos says that the Tribunal adopted the rules of evidence and so is bound by them.
Eastbrooke’s submissions
Eastbrooke says that there is no point identified in the transcript where there is a denial of natural justice at the Tribunal. It refers to eight issues.
Firstly, Eastbrooke says that there is no instance where it tendered evidence without the Tribunal’s consent or in the face of opposition or challenge by Mr Michos.
Secondly, Eastbrooke says there is no instance where Mr Michos sought to adduce further evidence but was denied permission or leave to do so. He made no objection to the Tribunal directing Eastbrooke to produce further evidence of the medical appointment.
Thirdly, there is no instance where Mr Michos sought additional time or an adjournment to further consider the evidence that he may wish to obtain or tender, or to seek legal advice or for any other reason.
Fourthly, the witnesses relied upon by Eastbrooke, being Ms Duggan and Mr Hacquoil, were available for cross-examination and sworn in. Although Eastbrooke filed four witness statements, they were the only two witness statements that it relied upon.
Mr Michos did not say prior to the hearing that he wished to cross‑examine any of Eastbrooke’s witnesses.
Section 102 of the VCAT Act does not compel a party to call a witness for cross‑examination. That is a matter for each party. While there is a reasonable opportunity to cross‑examine any witness a party relies upon, there is no absolute right to do so. Further, it is up to the Tribunal to determine the weight of any evidence, including written witness statements.
Fifthly, Mr Michos did not raise any concerns with the Tribunal regarding his ability to prepare and present his case being hampered with the way the hearing ran.
Sixthly, in reply to Mr Michos’ submission that he was not given the same opportunity to produce material, Eastbrooke says that in fact Mr Michos provided a bundle of documents at the hearing that Eastbrooke had not previously seen.
Seventh, the Tribunal had the power to inform itself of all matters relevant pursuant to s 98(1)(c) of the VCAT Act.
Eighth, the Tribunal must conduct proceedings in accordance with s 98(1)(d) of the VCAT Act. That provision provides that the Tribunal ‘must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of [the VCAT Act] and the enabling enactment and a proper consideration of the matters before it permit.’
Analysis
Mr Michos alleges the Tribunal erred in failing to accord him natural justice by failing to conduct a fair hearing. There is no real or significant argument that the alleged breach of natural justice constitutes an appellable question of law. There is no real or significant argument that the Tribunal erred for the following reasons.
Firstly, the Tribunal has the power to inform itself on all relevant matters.[48] Of course, it must do so consistently with the rules of natural justice.[49] Section 97 requires the Tribunal to ‘act fairly and according to the substantial merits of the case in all proceedings.’
[48]VCAT Act s 98(1)(c).
[49]Ibid s 98(1)(a).
In this case, an issue arose during the course of the hearing and the Tribunal sought and obtained further evidence from Eastbrooke. Mr Michos made no objection to that. The transcript indicates that Mr Michos was given an opportunity to make submissions on this evidence.[50]
[50]Transcript 111.
At no stage did Mr Michos indicate that he required further time to consider the evidence of the medical appointments. Whilst I understand that Mr Michos says that he did not know he could do so, I observe that the transcript evidences him representing himself and being an active participant before the Tribunal. For instance, he sought to ask Ms Duggan additional questions before she withdrew and was given the opportunity to do so.[51] Without the Tribunal being on notice as to any objection to proceeding, it did not have the opportunity to grant an adjournment. Further, during the hearing, Mr Michos conceded that he would not have provided any further evidence even if the matter had been adjourned.
[51]Ibid 90.
Section 98(1)(b) provides that the Tribunal ‘is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures’. Mr Michos submits that the Tribunal adopted the rules of evidence but did not advance that submission further. At any rate, s 98(2) provides that, without limitation to s 98(1)(b), ‘the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.’ The directions made for the filing of evidence before the hearing did not preclude the Tribunal from obtaining further material during the course of the hearing. Indeed, Mr Michos too was permitted to rely upon further material that his opponent had not seen prior to the hearing.[52]
[52]Ibid 1.
In doing so, the Tribunal acted consistently with s 98(1)(d) of the VCAT Act (cited above). Formalities in the adducing of evidence were tailored to the efficient and speedy resolution of the issues within the limits set by that provision.
As to Mr Michos’ submission that he had no opportunity to cross‑examine witnesses, that is not the case in respect of the two witness statements Eastbrooke relied upon. Both Mr Hacquoil and Ms Duggan were available to be cross‑examined. Mr Michos says that he had prepared questions to ask Mr Hacquoil but was unable to cross‑examine him as he was unwell. The transcript indicates that Mr Michos was given the opportunity to ask Mr Hacquoil questions but did not cross-examine him.[53] Rather, he proceeded to his reply and a three way discussion between the Tribunal, Mr Michos and Mr Hacquoil ensued.
[53]Ibid 111.
Mr Michos cross-examined Ms Duggan. Whilst her evidence concluded in the morning, before further material from Eastbrooke was emailed to the Tribunal, at any stage Mr Michos could have sought an adjournment and requested she be recalled. He did not do so. Before Ms Duggan’s evidence concluded, the Tribunal conferred with Mr Michos on whether he had further questions. He did and was permitted to ask them.[54]
[54]Ibid 87–8.
Further, Mr Michos did not oppose Ms Duggan being released from giving evidence or further attendance, despite being aware of the further material being sent to the Tribunal by email from Eastbrooke and that the Tribunal would review those documents.[55] Indeed, he believed Ms Duggan was no longer required.[56]
[55]Ibid 86: Mr Michos says ‘[t]hat’s fine’.
[56]Ibid 92–4 (underline added).
The newly received material was difficult to read. The Tribunal stated: ‘It’s tiny, I’m afraid, so you have to have your glasses on or you’re [sic] very good eyesight on.’[57] The Tribunal then talked through the evidence with Mr Hacquoil and Mr Michos. At various stages, the Tribunal sought Mr Michos’ confirmation as to whether he could read parts of the documents. The transcript suggests he could read parts of it but not others.[58] He confirmed it was not good for his eyes.[59]
[57]Ibid 95.
[58]Ibid 95, 99.
[59]Ibid 103.
At this point it is worth restating the words of Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Hieu Trung Lam that: ‘[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’.[60]
[60](2003) 214 CLR 1, 14.
Mr Michos has been unable to identify how the defects he alleges occurred at the hearing have led to a practical injustice. For example, while parts of Eastbrooke’s evidence provided during the hearing were illegible to Mr Michos without the Senior Member’s assistance, there is nothing before the Court to suggest this had any practical impact on the outcome of or arguments made at the hearing.
The Tribunal asked Mr Michos several times during the afternoon if he was ‘OK’. On one occasion he responded that he was alright and declined to take a break.[61] On another, he responded ‘yes’, declined a ‘break’, said he just wanted to finish up, and proceeded to make several final submissions.[62]
[61]Transcript 102.
[62]Ibid 113–14.
Towards the end of the hearing, there was a further opportunity for Mr Michos to ask questions or raise concerns. He did not.[63]
[63]Ibid 118.
Given the above, I find that Mr Michos was given a reasonable opportunity to make submissions on the new material and generally to press his case.
Leave to appeal will not be given on this ground.
Error of Law[64]
[64]To be clear, all grounds of judicial review are directed at errors of law. This heading reflects the headings found in the plaintiff’s submissions.
Mr Michos’ submissions
Mr Michos says that the Tribunal failed to address the main issue, being that a medical appointment is not required to obtain a copy of health information. Instead, he says, most, if not the entire hearing, concerned the making and cancellation of a doctor’s appointment for him to access the TAC report. Mr Michos says that the Tribunal misdirected itself and misinterpreted the HRA. The Tribunal accepted the Commissioner’s view that an appointment was not required for an individual to obtain a copy of their health information.[65]
[65]Michos [2018] VCAT 119, [69].
Mr Michos says the Tribunal does not indicate which section of the HRA it relies upon to make a finding that his request to access the TAC report lapsed.[66] The Tribunal does not refer to any authority in that regard.
[66]For the Tribunal’s finding see: Michos [2018] VCAT 119, [68].
Further, Mr Michos says the Tribunal does not define the phrase ‘necessary for one or more of its functions or activities’ found in its decision.[67] This issue was not addressed at the hearing. There was no reference to Health Privacy Principle (‘HPP’) 1.1 in the proceedings prior to the Tribunal’s decision. Eastbrooke did not challenge that it collected Mr Michos’ health information, by receiving the facsimile of the TAC report, within the meaning of s 25 of the HRA.
[67]See Michos [2018] VCAT 119, [57], [63].
Finally, Mr Michos says that he made an enquiry as to costs and was informed by the Tribunal that it does not allow for costs for complainants who bring complaints to the Tribunal in their own time.[68] This is contrary to the HRA s 78(1)(d).
[68]Transcript 9.
Eastbrooke’s submissions
Eastbrooke made two overarching submissions in relation to the application for leave to appeal that are convenient to deal with here. It says that almost all Mr Michos’ complaints go to contested facts such as what he was told by Eastbrooke on the telephone, whether his medical appointment was booked. These are all only relevant to secondary findings. The primary finding was that the HRA was not engaged in the circumstances following the Tribunal’s legal analysis, which was not impugned. The Tribunal held that Mr Michos used the clinic as a mailbox for the TAC report and that the regime for access was not engaged.
The Tribunal found, referring to HPP 1.1, that the TAC report was not ‘necessary for one or more of [Eastbrooke’s] functions or activities’. It used HPP 1.1 to construe the meaning of collected. The Tribunal found that collection only occurs when it is necessary for one or more of the health practitioner’s functions. The Tribunal made a factual determination that the TAC medical report was just sent there as a matter of convenience to Mr Michos and the TAC. That finding is not the subject of challenge. Eastbrooke says the finding that Mr Michos’ request for access had lapsed is a finding of fact. It was made on the basis of evidence.[69]
[69]Ibid 63, 78, 12–21, 78, 79, 80, 114.
Secondly, Eastbrooke says the question of law must bear upon the granting of relief if leave to appeal is to be granted. The Tribunal held that if the ultimate findings were wrong, then it would not have awarded Mr Michos compensation on the available evidence.[70] Accordingly, no different outcome on any point of law would have changed the ultimate result. This is a powerful factor in favour of the Court declining leave to appeal.
[70]Michos [2018] VCAT 119, [21].
As to legal costs, the Tribunal’s position is consistent with the principle that self‑represented litigants are not entitled to their legal costs.[71] The Tribunal made no comment concerning the HRA s 78(1)(d).
[71]VCAT Act s 109; Transcript 9.
Analysis
Is there a real or significant argument that the Tribunal erred in law by failing to define the phrase ‘necessary for one or more of its functions or activities’? The Tribunal stated:
The section 25 right of access applies to all health information ‘collected’ by an organisation. The meaning of the term ‘collected’ is explained in part HPP 1.1. HPP 1.1(a) states that an organisation must not collect health information about an individual unless the information is ‘necessary for one or more of its functions or activities’. While expressed in the negative, HPP 1.1 indicates the kinds of circumstances where an organisation collects health information for a HR Act consistent purpose.
On the evidence before me I find Mr Michos decided to use the Clinic as, in effect, a post office box. He wanted to obtain a copy of the report and he decided the most efficient way to do so was to have it sent there and for him to collect it.
The Clinic was not part of the discussion between Mr Michos and TAC about the report being sent to him. It did not ask for the report and there was no evidence any doctor at the Clinic had a need to see it or asked for it to assist in providing medical services to Mr Michos.
A copy of the report was scanned and attached to Mr Michos’ file in accordance with usual Clinic practice. However, there was no suggestion it would have been provided as a matter of course. As set out above, the TAC had sent a copy of the report direct to Mr Michos’ home.
This was not a case where a doctor had referred Mr Michos for a specialist opinion and so it was expected that the report would be sent to the doctor for review and discussion with Mr Michos. The report was prepared as part of a legal process at the request of TAC, not any of Mr Michos’ treating doctors. Reports of that kind are not prepared as part of a therapeutic relationship but rather to assist an organisation such as TAC to assess its legal obligations.
I find the report was ‘collected’ by the Clinic only because that was convenient to Mr Michos and because he wanted a copy to take to his solicitor for legal advice.
These circumstances do not in any way indicate the report was collected by the Clinic because it was ‘necessary for one or more of its functions or activities’.
I am not satisfied that these circumstances give rise to the Clinic’s access‑related obligations under the HR Act or are capable of demonstrating that, by failing to give Mr Michos a copy of the report on 4 November 2016, it breached the HR Act and so interfered with Mr Michos’ privacy.[72]
[72]Michos [2018] VCAT 119, [57]–[64].
Section 5 of the HRA states the following.
For the purposes of this Act, an organisation holds health information if the information is contained in a document that is in the possession or under the control of the organisation, whether alone or jointly with other persons or bodies, irrespective of where the document is situated, whether in or outside Victoria.
(emphasis added)
HPP 1.1 relates to the collection of information. The phrase ‘necessary for one or more of its functions or activities’ is contained in it.
1 Principle 1—Collection
When health information may be collected
1.1An organisation must not collect health information about an individual unless the information is necessary for one or more of its functions or activities and at least one of the following applies—
(a)the individual has consented;
(b)the collection is required, authorised or permitted, whether expressly or impliedly, by or under law (other than a prescribed law);
…
(emphasis added)
The Tribunal held that the report had been collected but that the access-related obligations under the HRA did not arise where the collection was not ‘necessary for one or more of its functions or activities’. HPP 1.1 does not define collection. Rather, it prohibits the collection of health information unless certain prescribed circumstances are met. In other words, it presupposes the meaning of collection.
Section 25 of the HRA provides a qualified right for individuals to access their health information that is held by an organisation and collected by the organisation after commencement of that section. It states:
Right of access
(1)Subject to subsections (2) and (3), an individual has a right of access, in accordance with this Part and HPP 6, to health information relating to the individual held by a health service provider or any other organisation.
(2)Subsection (1) applies to all health information collected on or after the commencement of this section.
(footnotes omitted)
…
HPP 6.1 follows.
6 Principle 6—Access and Correction
Access
6.1If an organisation holds health information about an individual, it must provide the individual with access to the information on request by the individual in accordance with Part 5, unless—
[sets out various exceptions]
The phrase ‘necessary for one or more of its functions or activities’ is not found in ss 5 or 25 or HPP 6. Mr Michos says the Tribunal failed to define it. That is true. The issue is how that phrase was used to construe the obligations in s 25 given that, as discussed above, HPP 1.1 prohibits collection unless particular circumstances are met but does not define it. There is a real or significant argument that the Tribunal erred in law by construing s 25 with reference to the phrase ‘necessary for one or more of its functions or activities’. This finding was central to the Tribunal’s reasons.
Turning now to the next issue. The Tribunal concluded that Mr Michos’ request to access a copy of his medical report had effectively lapsed. It so concluded through its factual findings that he had obtained a copy of the report elsewhere within hours of his request, communicated that to the clinic, and the cancellation of his 15 November 2016 appointment.[73] The question is whether it was open to the Tribunal to find the request had lapsed on the evidence before it. This is not a situation where there was no evidence before the Tribunal. There was evidence before the Tribunal, namely that Mr Michos obtained the report elsewhere within hours and communicated that to the clinic. It is up to the Tribunal to weigh the facts before it and the inferences it made were reasonably open to it.[74]
[73]Michos [2018] VCAT 119, [68].
[74]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356, 359–60 (Mason CJ).
A related issue raised by Mr Michos is that the Tribunal did not refer to any section of the HRA or any authority to make the finding that his request had lapsed. Certainly the HRA does not specifically refer to the lapsing of requests for access. Whether or not there was a lapse in the request for access is a factual finding. However, there is a question as to whether it was open to the Tribunal to find there was no breach of s 34(2)(c) of the HRA because of the lapsed request. Section 34(2)(c) generally requires health information to be given in accordance with s 29 or HPP 6.2 as soon as practicable but no later than 45 days (after receiving a request for health information under s 33 of the HRA). Neither s 29 or HPP 6.2 refer to lapsed requests. Further, HPP 6.1, which contains exceptions to the obligation to provide access does not refer to lapsed requests, although it provides exemptions for repeated unreasonable requests.[75] There is a real or significant argument that the Tribunal has erred in law in construing the question of whether a request for access lapses to be relevant to the obligations in s 34(2)(c) of the HRA.
[75]HRA sch 1, s 6 (HPP 6.1(k), (l)).
Turning now to the next issue. The Tribunal needed to, and did, make a finding as to whether or not the HRA had been breached regarding any right of Mr Michos to access his health information. This is distinct from the question of whether a medical appointment is required to obtain health information under the HRA. On that question, the Tribunal endorsed the Commissioner’s opinion, stating the Commissioner ‘rightly questioned the clinic’s policy of always requiring patients to attend a doctor’s appointment in order to access health information’.[76] As evident above, the Tribunal found that it is consistent with the HRA for a doctor to review the report and assess whether it could be released with no need for a medical appointment.[77]
[76]Michos [2018] VCAT 119, [69].
[77]Ibid [70].
That Eastbrooke was in possession of the requested health information was not disputed by either party.[78]
[78]Plaintiffs’ submissions, filed on 15 May 2018, [19].
Turning now to Mr Michos’ submissions on costs. Section 78(1)(d) of the HRA provides the following.
What may the Tribunal decide?
(1)After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may—
…
(d)in any case, make an order that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the proceedings held in respect of it under this Act.
Accordingly, s 78(1)(d) of the HRA clearly provides the Tribunal may make an order for reimbursement for expenses reasonably incurred in connection with the making of the complaint and the proceedings held in respect of it. Mr Michos did not say either during the hearing or in his particulars of claim that he sought costs pursuant to s 78(1)(d) of the HRA.
Section 109 of the VCAT Act gives the Tribunal wide discretion in respect of costs orders.
Power to award costs
(1)Subject to this Division, each party is to bear their own costs in the proceeding.
(2)At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3)The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—
(a)whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
…
(b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d)the nature and complexity of the proceeding;
(e)any other matter the Tribunal considers relevant.
…
At the outset of the hearing, the Tribunal clarified what remedies Mr Michos was seeking. In the course of doing so, the Tribunal referred to the types of orders it could make.[79]
[79]Transcript 7–8.
The Tribunal further clarified what compensation Mr Michos sought, including for stress and upset.[80] In response to Mr Michos stating that he sought ‘costs for just preparing and travelling’, the Tribunal stated: ‘we don’t allow costs associated with people bringing complaints to the Tribunal in their own time.’[81]
[80]Ibid 8–9.
[81]Ibid 9.
The latter statement must be considered in context with the discussion immediately before it. The Tribunal had indicated to Mr Michos that it had the power to award certain compensation and costs. The Tribunal’s words should have their plain meaning and be read in context. Mr Michos’ costs for just preparing and travelling in his own time were not costs the Tribunal would allow. Costs are a discretionary matter and it was in the Tribunal’s discretion pursuant to s 109(2) of the VCAT Act and s 78(1)(d) of the HRA. There is no real or significant argument that there is an error of law in that regard.
Improper Exercise of Power
Mr Michos’ submissions
Mr Michos submits that the Tribunal’s finding that Eastbrooke held or collected information was not in dispute at the hearing. Had it been, he would have addressed it. It was not open to the Tribunal to make such a finding.
Further, Mr Michos says that the Tribunal did not specifically refer to Eastbrooke’s defence. Eastbrooke relied on ss 26 and 34 of the HRA and an internal message allegedly sent to a doctor. It was not produced despite both Mr Michos and the Senior Member having asked for it. He says he raised the message when it was not provided and the Senior Member responded that there was no such evidence requested or provided. He disputed the message because it was raised by Eastbrooke in its defence but no finding was made. That is, there was no finding made on a disputed fact.
Mr Michos says that during the hearing, the Tribunal failed to exercise s 78 of the VCAT Act notwithstanding it recognised he was clearly in a disadvantaged position.[82] If he was at a disadvantage, the Senior Member should have adjourned.
[82]Michos [2018] VCAT 119, [27].
Further, Mr Michos submits that the Tribunal did not act in accordance with s 38 of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). This is because it permitted Eastbrooke to email and use documented evidence that identified other patients at its clinic. The evidence contained private and confidential health information and therefore interfered with each person’s right to privacy.[83]
[83]Charter s 13; Transcript 95.
Eastbrooke’s submissions
In relation to holding and collecting, the Tribunal simply made a finding that s 25 of the HRA was not triggered because of how the information was collected. The Senior Member was trying to work out the relevant circumstances.[84]
[84]Transcript 47–8.
Analysis
The Tribunal findings did not disturb the common understanding between the parties that the information was held and collected by Eastbrooke. Mr Michos’ submission that it was not open to the Tribunal to so find is without basis.
There was no requirement for the Tribunal to make specific reference to Eastbrooke’s defence. Mr Michos was the complainant and it was for him to prove his case.
As to Mr Michos’ submission that there was no finding as to a disputed fact (the internal message sent by the doctor), that is correct. However, the Tribunal was ‘not required to mention every fact or argument relied on by [a party] as relevant to an issue.’[85] The internal message was immaterial to the questions before the Tribunal, and so there is no real or significant argument there is an error of law.
[85]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 463–4 [62] (Gleeson CJ, McHugh and Gummow JJ); see also Maddax v Danner [2016] FamCAFC 176, [37]: ‘a failure to make findings concerning disputed but immaterial facts could not, of itself, establish error.’
Section 78(1) of the VCAT Act provides:
Conduct of proceeding causing disadvantage
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as…[86]
[86](emphasis added).
This section does not concern disadvantage generally. Rather, it relates to one party’s conduct putting another at a disadvantage. Both parties were self-represented. The reading of the transcript does not evidence that Eastbrooke conducted the proceeding in a manner unnecessarily disadvantageous to Mr Michos. There is no real or significant argument that s 78 applies.
Further, Mr Michos’ Charter complaint has no bearing on relief. Whether he was afforded a fair hearing has been dealt with previously.
Leave to appeal will not be given on this ground.
Relevant and Irrelevant Considerations
Mr Michos’ submissions
Mr Michos reiterates his submissions in respect of the previous ground. In addition he says that given the Tribunal accepted the Commissioner’s view[87] that a medical appointment was not required to access health information, the whole proceeding was ‘a nullity’.
[87]Michos [2018] VCAT 119, [16], [69]–[70].
Mr Michos says details of his other personal appointments were irrelevant.
Eastbrooke’s submissions
Eastbrooke submits that it is settled law that an allegation that the Tribunal failed to take into account a relevant matter only constitutes an error of law if it was expressly bound to take it into account. Such an obligation must be clear from the express terms of the statute which confers the power or by implication.
Eastbrooke says that in relation to any assertion the Tribunal took into account matters not relevant, it would only amount to an error of law if the irrelevant matter was one the Tribunal was forbidden to, or obliged not to, take into account. This is not the case.
Eastbrooke submits that if there is a central issue in dispute, the Tribunal must deal with it even if a submission is not made regarding it.
Analysis
On relevant and irrelevant considerations, Sinclair v Tripodis Constructions Pty Ltd,[88] outlines the following useful principles:
A decision-maker will fall into error if he or she fails to take into account a matter that he or she was bound to take into account or takes into account something that he or she was not permitted by the statute to take into account. However, as the learned authors of Judicial Review of Administrative Action note, ‘[m]any Acts are properly construed as allowing their decision-makers to consider all sorts of relevant things, but as requiring them (in the sense that breach will result in invalidity) to consider very few things.’ Where the legislation neither obliges nor forbids the decision-maker to take a particular matter or thing into account, no error of law can flow from the fact that the matter or thing was considered or, alternatively, that it was not considered.
[88][2013] VSC 722, [21] (citations omitted).
Mr Michos has not identified factors that the Tribunal was bound to take into account but did not, nor any it was obliged not to account for but did.
The crux of the issue is how the legislation applied to Mr Michos’ circumstances.
The Tribunal’s finding of fact that Mr Michos had obtained the report on the day it was requested from Eastbrooke was relevant to its finding his access request had lapsed and further, that Eastbrooke had not breached HRA s 34(2)(c). The Tribunal referred to Mr Michos’ explanation as to why it was urgent he obtain the report on that date and that he stated he had not made an appointment to see his solicitor on that date but planned to do so in the next few weeks. This was relevant to the question of relief.
I find no real or significant argument that the Tribunal’s accounting of considerations led to an error of law. Leave to appeal will not be given on this ground.
Unreasonableness
The issues Mr Michos raises concern the evidence before the Tribunal, how it was weighed (impermissible on judicial review) and whether the findings it made were open on the facts. The latter issue is dealt with earlier. Mr Michos did not identify any question of law on the ground of unreasonableness. Leave to appeal will not be given on this ground.
Inflexible Policy
Mr Michos says that the Tribunal made a finding based on Eastbrooke’s policy that an appointment was required to obtain health information, but that policy was not compliant with the HRA. Accordingly, the Tribunal’s finding is contrary to law.
Eastbrooke says the evidence is consistent with its policy at the time, although the policy has since changed. It says the Tribunal went through the evidence and made findings.[89] The reasons only relate to what evidence was given and what evidence the Tribunal preferred. This is not a situation where an administrative body has an inflexible policy position or set of guidelines which will be applied without considering the specific facts, arguments and merits of the discrete scenario that is before them. The ground of appeal is not applicable.
[89]Michos [2018] VCAT 119 [47]–[48].
Analysis
The Tribunal’s observations[90] that Eastbrooke’s policy was consistent with Ms Duggan’s evidence does not in any way constitute the Tribunal applying an inflexible policy in its decision-making. There is no question of law here. Leave to appeal will not be given on this ground.
Essential Preconditions not fulfilled
[90]Ibid.
Mr Michos’ submissions
Mr Michos says the Tribunal did not follow proper procedures in reaching its conclusion. He says that the Tribunal was required to give notice if it intended to rely on its own knowledge. He refers to the Tribunal’s findings concerning whether information was held and collected pursuant to the HRA.[91] Mr Michos says the Tribunal’s finding that there was no dispute before it[92] meant it could not find in respect of whether Eastbrooke had collected his health information pursuant to the HRA.
[91]Ibid [56]–[57], [62].
[92]Ibid.
Eastbrooke’s submissions
Eastbrooke says this ground re-ventilates previous arguments. The only specialist knowledge that the Senior Member applied was as a lawyer interpreting the HRA. The Tribunal relied on its own knowledge of law, not facts.
Analysis
I refer to the findings above concerning interpretation of the HRA. I reject the submission that the Tribunal relied upon its own knowledge in any sense which gives rise to a question of law. The Tribunal considered the relevant evidence and made findings. It was required to do so. There is no real or significant argument that the Tribunal erred in law. Leave to appeal will not be given on this ground.
No evidence
Mr Michos’ submissions
Mr Michos says that the Tribunal made findings of fact not open to it on the evidence, or where there was no evidence on which an inference could be drawn. In particular, he says that reliance on ‘the supposed urgency’ that he required his health information on 4 November 2016 ‘was in the absence of any evidence and was only relied upon assumptions’. He says there was no evidence for the Tribunal to make its finding that his conduct in obtaining another way to obtain a medical report that day was consistent with him wanting to obtain it and not have a medical assessment or discussion about its contents.[93] Mr Michos says this is speculative.
[93]Mr Michos referred to ibid [52].
Mr Michos also challenges the Tribunal’s finding ‘that the alleged appointment for 15 November 2016 was created and cancelled on 4 November 2016’.[94] I refer to his submissions above that there was no evidence for the creation of the appointment and Eastbrooke’s own evidence showed the 15 November 2016 appointment was cancelled on that day. He also says it could not be established if the appointment was cancelled or if there was a non‑attendance.
[94]Ibid [49].
Mr Michos also challenges the Tribunal’s findings that there were no instructions for the doctor to discuss the report with Mr Michos nor could Eastbrooke provide evidence of such. He says the hearing established that no such instructions existed. Mr Michos says that consequently the Tribunal stated it would disregard the instructions. However, the Tribunal referred to the instructions in its reasons.[95]
[95]Mr Michos refers to: ibid [10], [47], [48].
Eastbrooke’s submissions
Eastbrooke says that there is evidence of urgency.[96]
[96]Transcript 46–7.
The Tribunal says ‘which is consistent with booking system records’.[97] Eastbrooke suggests this could simply be a mistake or otherwise the Tribunal took the evidence and decided it was consistent. Regardless, it would not have affected the outcome because Ms Duggan’s evidence was preferred. Further, and crucially, it was not the primary finding regarding the HRA, but rather an alternative finding. It is consistent with oral evidence that the Tribunal preferred.
[97]Michos [2018] VCAT 119, [49].
The doctor’s instructions were not relied upon in the decision, consistently with the Tribunal’s position at the hearing.[98]
[98]Transcript 102.
Analysis
The Tribunal referred to email evidence that Mr Michos said he required a copy of the medical report ‘as soon as possible’.[99] It was open to the Tribunal to find that Mr Michos expected to attend Eastbrooke and simply be handed a copy of the report. The Tribunal also referred to Mr Michos’ own evidence that he did not want to consult a doctor about the report and saw no need for an appointment to be made, and that he obtained a copy of the report elsewhere that day. It was open to the Tribunal to make the factual findings it did.
[99]Michos [2018] VCAT 119, [54].
Regarding the doctor’s purported written instructions, the Tribunal’s reasons do not support Mr Michos’ contention that they were relied upon.
The Tribunal made findings that Ms Duggan informed Mr Michos that a copy of the report could only be released in the context of an appointment with a doctor and made an appointment for that purpose for 15 November 2016.[100] The Tribunal found this consistent with Eastbrooke’s practice at the time. It was open for the Tribunal to prefer, as the Tribunal did, the evidence of Ms Duggan over that of Mr Michos.[101]
[100]Ibid [48].
[101]Ibid [49].
The Tribunal observed: ‘Ms Duggan’s evidence was also consistent with the Clinic records that show an appointment for 15 November 2016 had been made and was cancelled on 4 November 2016’.[102] However, Ms Duggan’s evidence was that she was unsure if the appointment had been cancelled or if there was a non-attendance by Mr Michos at the appointment.[103]
[102]Ibid.
[103]Transcript 62, 89.
There is a question as to whether there was any evidence before the Tribunal as to the appointment being cancelled on 4 November 2016. The booking records were not before this Court. Mr Hacquoil gave evidence on behalf of Eastbrooke. His evidence was that the booking records showed the appointment was cancelled by Ms Duggan on 15 November 2016.[104] During the hearing, when discussing the booking system records the Tribunal said they showed the appointment was cancelled on 15 November.[105] Further, that there was no evidence as to whether it was cancelled at the initiative of Ms Duggan or at the initiative of Mr Michos.[106]
[104]Ibid 97–8.
[105]Ibid 100.
[106]Ibid 105–6.
There is a real or significant argument as to whether it was open on the evidence before the Tribunal to find that Mr Michos’ 15 November 2016 medical appointment was cancelled on 4 November 2016. However, this finding was not critical. The central facts are agreed — Mr Michos did not receive a copy of his medical report from the clinic on 4 November 2016 and he obtained it elsewhere that day. The finding concerning cancellation of the medical appointment had no bearing on the ultimate relief, that is the decision not to award Mr Michos compensation. Leave to appeal will not be given in respect of this ground.
Jurisdictional Error
Mr Michos’ submissions
Mr Michos raises a number of grounds already dealt with above and there is no need to reiterate them. In addition, Mr Michos says that the Tribunal wrongly restricted itself to events on 4 November 2016 despite Mr Michos’ complaint, the defence, evidence and submissions, being to the contrary.[107]
[107]Michos [2018] VCAT 119, [30].
Eastbrooke’s submissions
Eastbrooke says none of the matters raised by Mr Michos relate to any rights being affected due to any decision or order made by the Tribunal being beyond its description. The arguments do not relate to jurisdictional error, are largely canvassed in responses to other grounds of appeal and cannot ground a grant of leave.
Eastbrooke says that the appeal should be confined to 4 November 2016 because that was the Tribunal’s position at the hearing, and Mr Michos confirmed that.
Analysis
Mr Michos has not articulated a real or significant question of law. Leave to appeal will not be given on this ground.
Manifestly Inadequate Reasons
Mr Michos’ submissions
Mr Michos submits the Tribunal’s reason are misleading as they state he was provided with an opportunity to seek an adjournment when no such opportunity was afforded to him.[108] Mr Michos says that the Tribunal stated that material emailed to it had a limited bearing on its findings.[109] However, the Tribunal used that same evidence to make adverse findings against him.
[108]Ibid [26]; the reference in para [47] of the plaintiff’s submissions to an ‘adjustment’ is taken to mean ‘adjournment’.
[109]Ibid [27].
Further, Mr Michos submits that the reasons are inadequate and unintelligible. Mr Michos says the Tribunal did not making findings on evidence that Eastbrooke relied upon in its defence and at the hearing, including the internal message allegedly sent to the doctor and its reliance on ss 26 and 34 of the HRA. Further, Mr Michos says he evidenced his willingness to attend a medical appointment. He says there is discrepancy in the Tribunal’s findings.[110]
[110]Ibid [52] cf [70].
The Tribunal’s reasons suggest that evidence of the clinic’s records emailed by Eastbrooke at the hearing is consistent with witness evidence even though it was established otherwise.[111] The Tribunal’s reasons contain other discrepancies: [5] compared with [6], [14] compared with [72], [52] compared with [70], [60] compared with [10], [16], [17], [47]. Further, there is no explanation of the finding in respect of the reasons provided at [58].
[111]Ibid [49].
Eastbrooke’s submissions
Eastbrooke says that the claim that the reasons are misleading is limited to a reference in the reasons asserting that Mr Michos was offered the opportunity to seek an adjournment. This has no bearing ultimately on the submission that the decision in its entirety is manifestly inadequate or misleading.
Evidence may have limited bearing but nonetheless have bearing. The Tribunal did not find evidence irrelevant or unreliable and was entitled to comment as to its weight or value, having a limited bearing.[112] Further, the Tribunal did its best where the parties were unrepresented. There is a clear path of reasoning.
[112]Ibid [27].
Eastbrooke says the Tribunal’s reasons were not required to have the precision of pleadings or be perfect, but merely to set out the reasoning as to how the decision was reached. In that regard, Eastbrooke refers to s 46(2) of the VCAT Act which requires the original decision to contain the reasons for it and the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based.
Eastbrooke also submits that a break was offered twice to Mr Michos and the offer was declined.[113] Mr Michos never requested an adjournment although it was offered.
[113]Transcript 102, 103, 113.
Eastbrooke submits that Mr Michos’ reference to authority is incorrect. It says that there was compliance by the Tribunal with s 46 of the VCAT Act.
Eastbrooke disagrees with Mr Michos’ submissions that there are discrepancies in the reasons. It says the reasons must be read in context.
Analysis
Some of these issues are addressed in the ruling in respect of other grounds and do not need to be reiterated. I reject Mr Michos’ submissions about the inconsistencies in the paragraphs of the reasons he has identified. Reading the paragraphs in context, they are not inconsistent. Further, I would add that paragraph [72] should be read with paragraph [12]. I reject the submission there is no explanation of the finding in paragraph [58]. Paragraph [59] provides the explanation.
Leave to appeal will not be given on this ground.
Bias
Mr Michos’ submissions
Mr Michos again raises the excusing of Ms Duggan from evidence.
Mr Michos says that there was highly prejudicial material towards him outlined in the Tribunal’s reasons.[114] He says that the suggestion that he was threatening or abusive is on the public record because the Tribunal’s reasons are published. He alleges that Eastbrooke made criminal allegations that he had been threatening and abusive in its defence. It asked for court security in the room because their witness was in fear. There is no dispute about security being there; it was not. The Tribunal asked him in open court if he would harm Ms Duggan. That was degrading and absurd. Then the Tribunal said she wanted Ms Duggan to be excused. It was highly offensive and absurd for the Tribunal to assure Ms Duggan that she was in a secure environment. No harm was going to happen to Ms Duggan. That is why he says Eastbrooke’s actions were highly prejudicial and affected the Tribunal’s decision-making.
[114]Michos [2018] VCAT 119, [28].
The Tribunal assumed Eastbrooke’s submission that evidence being emailed to the Tribunal during the hearing would support its case and its evidence was an accurate submission. The Tribunal therefore prejudged the evidence that had not yet been received or viewed and excused Ms Duggan from giving evidence. Once the Tribunal received that evidence, it became apparent the evidence could not substantiate Eastbrooke’s case and in fact was contrary to what had been stated. Therefore, Mr Michos was not afforded the opportunity to cross‑examine Ms Duggan on the conflicting evidence.
The Tribunal failed to state that the documented evidence was contrary to the evidence given by Eastbrooke, instead remarking that it was consistent.
The Tribunal did not take into account evidence favourable to Mr Michos, including documented evidence that was emailed by Eastbrooke during the hearing that did not support its case but was more favourable to Mr Michos. The Tribunal had already formed its conclusion and was not open to persuasion.
Eastbrooke did not provide the evidence of the alleged internal message sent to the doctor on 4 November 2016. The Tribunal took an arbitrary approach against him and suggested such evidence was requested.
The Tribunal found the relevant part of an email by him to Eastbrooke dated 21 November 2016 to be: ‘as soon as possible’. However, the part relied upon by Eastbrooke was ‘if necessary I was happy to book an appointment to see a doctor to obtain the report’.
Eastbrooke’s submissions
Eastbrooke says in respect of the witness who was not required to attend, the evidence was not relied upon and Mr Michos did not press for her further cross‑examination.
On Mr Michos’ allegation that evidence was unsubstantiated and inconsistent; where there is a relevant contradiction, the decision indicates what evidence is preferred.
There is no suggestion the Tribunal was cognisant of or impacted by any matters not brought to the Tribunal. There is no ground of bias made out.
Those witnesses upon whom Eastbrooke relied were available for cross‑examination.
The unsubstantiated criminal matters played no part in the determination.
The test for apprehended bias is well‑known and there is nothing on the materials to say it was satisfied. It is a serious allegation to make and there is no basis for it. The hearing was conducted in an unremarkable way.[115]
[115]Transcript 52.
Mr Michos has taken statements by the Tribunal out of context. The Tribunal was trying to get evidence from the witness as to whether there was some sort of record.[116] It was just before an adjournment and that is why the Tribunal indicated the witness could not discuss the matter with another of Eastbrooke’s witnesses.
[116]Ibid 57.
Analysis
Some of these issues are addressed in the ruling in respect of other grounds and do not need to be reiterated. There is no real or significant argument that the Tribunal was biased. Leave to appeal will not be given on this ground.
Discrimination
Mr Michos’ submissions
Mr Michos says that the Tribunal failed to make reasonable adjustments although it was aware that he was a recipient of a disability support pension and therefore was a person with at least one disability.
Mr Michos says that the Tribunal noticed he was unwell. After lunch he did not take part in the hearing. The Tribunal did not make any adjustments for him. Particularly, it did not provide a legible form of the evidence faxed-in during the hearing. The Tribunal did not adjourn so that he could cross‑examine witnesses on consistency of evidence.
Mr Michos says he would have requested an adjournment had he known he could.
Mr Michos also says that Eastbrooke could not establish that he requested to have his health information on a particular time or day. The Tribunal had no evidence to make the finding that he required his health information on 4 November 2016,[117] and as to whether or not he had to see a doctor to obtain a copy of his health information.
[117]Michos [2018] VCAT 119, [52]–[53].
Mr Michos told the Tribunal the reason he obtained his health information elsewhere was because of his character to have things like his paperwork organised. However, the Tribunal used that explanation against him to say that he did not want an appointment.
Eastbrooke’s submissions
There was an offer of an adjournment and it was not taken by Mr Michos. Nor did Mr Michos independently request an adjournment. Mr Michos did not say to the Tribunal that he could not read the material. Eastbrooke says that there is no discrimination.
In relation to Mr Michos complaint that he did not have an opportunity to cross‑examine Ms Duggan on the material, he told the Tribunal he did not think she would be further required.[118] It is true that was before the information came in, but it was after the explanation that that information would be coming in.
[118]Transcript 93.
Analysis
A number of these issues have already been dealt with in the ruling above.
Mr Michos’ submissions are that he was discriminated against on the basis of an unspecified disability by the Tribunal’s failure to make reasonable adjustments in the form of an adjournment or the provision of a readable form of the faxed-in evidence provided to the Tribunal during the hearing.
Mr Michos’ submissions must be categorically rejected. Firstly, there is no evidence that Mr Michos requested any adjustments or accommodation in respect of his disability. He did not request an adjournment or readable material. Secondly, the Tribunal repeatedly offered him the opportunity for a break, which he declined. Leave to appeal will not be given on the ground of discrimination.
Should leave to appeal be given?
Eastbrooke refers to the particulars of Mr Michos’ Tribunal claim for ‘loss and/or damages’, ‘an unreserved apology’ from Eastbrooke, costs ‘and any other order the Tribunal deemed necessary’.[119] It says, there was no claim for a declaration.
[119]Particulars of Claim, dated 23 October 2017, VCAT Ref No H176/2017, [15].
The Tribunal held that even if there was a breach of the HRA, there was no apparent link with the costs claimed, and no basis for an award for embarrassment, humiliation or stress. It was open for the Tribunal to make those findings on the material before it, including that Mr Michos obtained a copy of the medical report elsewhere the day he requested it from Eastbrooke.
Applying Hulls, the question is whether the questions of law are relevant to the granting of the relief sought on appeal.[120] Mr Michos says he no longer seeks compensation. In his amended notice of appeal, he seeks orders that Eastbrooke has breached the HRA, amongst other things. The questions of law identified in this ruling may ultimately bear on this question.
[120]Hulls (1999) 3 VR 331, 336–7.
The ultimate issue is what justice demands. In this case, as discussed above, questions of law that are of public importance have been raised. It is just to grant leave to appeal.
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