Niederle v McIntosh - [2021] VSC 462

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04161

JAMES NIEDERLE	Plaintiff
v
GUY MCINTOSH	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2021
DATE OF JUDGMENT:	5 August 2021
CASE MAY BE CITED AS:	Niederle v McIntosh
MEDIUM NEUTRAL CITATION:	[2021] VSC 462

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ADMINISTRATIVE LAW – Judicial review – Where Magistrate set aside subpoena for release of medical records in intervention order proceeding – Where Magistrate erroneously relied on Health Records Act (Vic) s 26 – Application successful.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented litigant
For the Defendant	Mr A McCowan	Goulburn Valley Community Legal Centre

TABLE OF CONTENTS

A. Background................................................................................................................................... 1

B. Clarification of the issues in the course of hearing............................................................... 3

C. Ground 2 – Health Records Act 2001 (Vic) s 26....................................................................... 4

D. Observations on the other grounds.......................................................................................... 6

E. Disposition..................................................................................................................................... 7

HIS HONOUR:

A. Background

On 10 February 2020, Mr McIntosh applied in the Magistrates’ Court of Victoria for an intervention order under the Family Violence Protection Act 2008 against his nephew, Mr Niederle. The application is in the following terms:

The resp is my nephew. In November 2019 the respondent created a photoshopped crime scene photo with myself in it stating that I am a murderer and that I am moving around Shepparton. The respondent has then posted this photo on Facebook. The photo was created by the respondent and is not legitimate. As of January 2020 the post was still up on Facebook. The posting of this photo has made me very stressed and I have become very anxious and depressed. This has lead to me being admitted as a mental health inpatient unit. I have been diagnosed with paranoid schitzophrenia. Last week the respondent threatened my mother saying he is going to continue to post more material like he has previously doing. This has again made me anxious and worried that my mental health is going to decline. I am requesting an order be made preventing the respondent from posting further material about myself and to take the current post of the crime scene down as it is all affecting my mental health.[1]

[1]Emphasis added.

Mr Niederle, who is a law student, is representing himself. He filed a subpoena addressed to Goulbourn Valley Mental Health in which he sought the production of:

Documents relating to Guy McIntosh’s psychiatric condition or triage on appox date 15/01/2020

Mr McIntosh applied to set aside the subpoena on the basis that it was an abuse of process. Mr McIntosh also filed an affidavit in support sworn by his solicitor in which it was contended that he would self-harm if Mr Niederle were supplied with his health records. The affidavit exhibited a letter headed ‘To Whom it may concern’ signed by Mr McIntosh’s treating psychiatrist and adult mental health clinician. The letter contained the following assertions (and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 462
Decision Date: 5 August 2021

CaseChat Overview and Summary

Niederle v McIntosh is a judicial review case in which the applicant sought to challenge the magistrate's decision to set aside a subpoena for the release of medical records in proceedings related to an intervention order. The matter was heard and determined in the Supreme Court of Victoria. The central dispute revolved around the magistrate's erroneous reliance on section 26 of the Health Records Act 2001 (Vic) when setting aside the subpoena, which the applicant argued warranted the intervention of the court.

The legal issues before the court included whether the magistrate's decision to set aside the subpoena was legally sound and whether the magistrate had correctly applied the provisions of the Health Records Act. The court needed to determine if the magistrate had erred in law by relying on section 26 of the Act, which pertains to the disclosure of health records in certain circumstances, rather than considering the proper legal framework governing subpoenas in intervention order proceedings.

The court found that the magistrate had indeed erred in law by relying on the wrong section of the Health Records Act. The magistrate had mistakenly applied section 26, which deals with disclosure in specific circumstances, instead of considering the provisions of the Family Violence Protection Act 2008 (Vic) that govern the issuance of subpoenas in intervention order proceedings. The court concluded that the magistrate's reliance on the incorrect section was a jurisdictional error, leading to the quashing of the decision to set aside the subpoena. The applicant's application for judicial review was successful.

The court ordered that the decision of the magistrate to set aside the subpoena be quashed and that the subpoena be reinstated, allowing the applicant to proceed with the release of the medical records as required by the Family Violence Protection Act. This outcome ensures that the correct legal principles are applied in intervention order proceedings, preserving the rights of the parties involved.

Orders