Norville v State Authorities Superannuation Trustees Corporation

[2005] NSWADT 137

CITATION:	Norville v State Authorities Superannuation Trustees Corporation [2005] NSWADT 137
DIVISION:	General Division
PARTIES:	APPLICANT Charles Henry Norville RESPONDENT State Authorities Superannuation Trustees Corporation
FILE NUMBER:	053040
HEARING DATES:	29/04/2005
SUBMISSIONS CLOSED:	04/29/2005
DATE OF DECISION:	06/21/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	amendment of documents - Dismissal of application - frivolous vexatious misconceived or lacking in substance - Freedom of Information Act - amendment of documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fire Brigades (General) Regulation 1992 Freedom of Information Act 1989
CASES CITED:	Crewdson and Central Sydney Area Health Service 2002 NSWCA 345 (26 November 2002); Secretary, NSW Treasury v C (GD) [2004] NSWADTAP 6 revised - 20/02/2004
REPRESENTATION:	APPLICANT In person RESPONDENT S Free, solicitor
ORDERS:	Orders made 29/04/2005; The respondent’s decision to refuse to amend document 1 is set aside. In substitution for that decision I make a decision that a notation be placed on that document stating that the words “physical incapacity” are incorrect and should be disregarded and that the words “psychological unfitness” should be read in substitution for those words.; In relation to documents 2 and 3, the applicant’s application in relation to those documents is dismissed pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act as misconceived or lacking in substance.

1 The following text is the oral reasons for decision given in this matter on 29 April 2005. Minor editorial changes have been made to that text but the substance has not been altered.

2 This is an application by the respondent under section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 which provides that the Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. The basis for the respondent’s submission was that Mr Norville’s application was misconceived or lacking in substance.

3 The procedural history is that two case conferences were convened in relation to Mr Norville’s application, one on 1 March and one on 11 April 2005. They were quite lengthy conferences in which the law and what it was that Mr Norville had to establish were discussed in some detail. Mr Norville was asked to provide further documentation in support of his application, which he did. He made comprehensive and detailed submissions and also supported those submissions with a good deal of documentary and some affidavit evidence.

4 I mention that procedure just by way of background in case it is thought that Mr Norville was not given an adequate opportunity to be heard or to have his case put. I am confident that given that history and those opportunities, plus the opportunity today for him to present his case, that procedural fairness has been complied with.

5 The underlying application is one by Mr Norville under section 39 of the Freedom of Information Act 1989 which gives a person to whom access to an agency’s documents has been given, the right to apply for an amendment of the agency’s records if the document contains information concerning the person’s personal affairs and if the information is available for use by the agency in connection with its administrative functions and if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.

6 Paragraphs (a) and (b) of section 39 have been met in this case. There is no dispute on the part of the respondent that the documents in question concern Mr Norville’s personal affairs or that they are available for use by the agency in connection with its administrative functions. The real issue is whether the information is incomplete, incorrect, out of date or misleading.

7 The agency made a determination under section 43 of the Freedom of Information Act refusing to amend its records as requested by Mr Norville. That refusal triggered Mr Norville’s right to apply to the Tribunal for a review of that determination under section 53 of the Freedom of Information Act. The documents that Mr Norville has requested be amended are firstly a document dated 11 July 1995 to the Secretary, State Authority Superannuation Board from P Stathis, the personnel officer for the New South Wales Fire Brigades. The first paragraph of that letter states:

“I have to advise that after considering a report from HealthQuest concerning the medical condition of the above named employee, the Department has determined that he retire from the Fire Service on the grounds of physical incapacity on and from 8am Wednesday 5 July 1995.”

8 I should say before moving on that the respect in which Mr Norville seeks amendment to that document is by the deletion of the words “physical incapacity” and by the insertion in their place of the words “psychological unfitness”.

9 The second document is a retirement certificate dated 5 July 1995 signed by Dr Jagger. The paragraph about which Mr Norville is most concerned is the second paragraph which says:

“I find that he is suffering from symptoms of anxiety and depression associated with personality disorder.”

10 It is that reference to personality disorder that Mr Norville says is incorrect and he is seeking that that statement be amended to read “work related stress”.

11 The third document is a document dated 9 July 2003 which is a report prepared by Dr Casolin, a doctor associated with HealthQuest, which refers to the reference to personality disorder in Dr Jagger’s medical certificate. I quote from that report:

“He was thus considered permanently medically unfit for employment with the NSW Fire Brigade ‘due to symptoms of anxiety and depression associated with personality disorder’.”

12 Mr Norville’s objection to this statement mirrors his objection to the retirement certificate in which the words ‘personality disorder’ were used.

13 The brief background to Mr Norville’s application is that he had been a fire fighter with the Fire Brigades for at least fourteen years when, on 11 July 1995, he was retired from that position. The trigger for that retirement was the second document that I have referred to, namely the retirement certificate from Health Quest.

14 By way of background, it is not disputed that Dr Jagger did not examine Mr Norville when she made reference to him having a personality disorder and it appears from notes that she made which were in evidence that she reviewed the file relating to Mr Norville which included several medical reports. She relied in particular on a report of Dr Milton dated 16 November 1995 in reaching her conclusion. That is not to say, and I certainly do not find, that Dr Jagger did not also review the file in its entirety and take account of the other reports and documents that were included in the file.

15 Also of importance is a document entitled ‘interim advice’ dated 19 June 1995 signed by Dr Jagger for Dr Gapper which is a letter or an advice to New South Wales Fire Brigades and which preceded the retirement certificate. In particular I note Dr Jagger’s comment in that interim advice as follows:

“This long history of conflict is associated with the development of symptoms of anxiety and depression which Dr Milton attributes to decompensation due to an underlying personality disorder which renders him vulnerable. Mr Norville has had access to professional treatment for his condition since at least 1990.”

16 I turn now to the first document which, as I have said, is a letter from P Stathis, personnel officer for the Commissioner of the New South Wales Fire Brigades, dated 11 July 1995. It was conceded by the respondent that the words “physical incapacity” in the first paragraph of that letter were not correct because of the fact that Mr Norville was not retired on the basis of any physical incapacity. The respondent agreed to an amendment of that document in certain terms, however, following a discussion with Mr Norville it became clear to me that the relevant clause which the Fire Brigades had relied on in terminating Mr Norville’s employment, was in fact clause 15 of the Fire Brigades’ General Regulation 1992. That clause states that:

“The Director-General may at any time terminate a fire-fighter’s appointment as a fire-fighter or as a fire-fighter of a particular rank:

a) if the fire-fighter is no longer medically or psychologically fit to exercise the functions of a fire-fighter or of a fire-fighter of that rank or

b) if the fire-fighter is no longer a suitable person to exercise the functions of a fire-fighter or a fire-fighter of that rank.”

17 When the personnel officer wrote to the State Authorities Superannuation Board saying that the Department had determined that he (Mr Norville) retire from the Fire Service on the ground of physical incapacity, what it should have said in accordance with clause 15(1)(a) is that it determined that he retire from the Fire Service on the grounds that he was not psychologically fit.

18 For those reasons I am satisfied that the respondent’s decision to refuse amendment of document 1 is not the correct and preferable decision. I set aside the respondent’s decision and in substitution for that decision I make a decision that a notation be placed on that document stating that the words “physical incapacity” are incorrect and should be disregarded and that the words “psychological unfitness” should be replaced for those words.

19 Before considering the detail of Mr Norville’s submissions in relation to documents 2 and 3, it is useful to shortly set out the relevant legal tests that are applicable in cases such as these. The pre-eminent authority in this area is the case of Crewdson and Central Sydney Area Health Service 2002 NSWCA 345 (26 November 2002) which is a decision of the New South Wales Court of Appeal hearing an appeal from a decision of this Tribunal. As with this case, Crewdson concerned an application to amend documents. I refer to a passage at paragraph 24 where the Court said:

“The appellant’s attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them.”

20 That passage will become relevant to a consideration of Mr Norville’s submissions in due course. The other authority which is directly on point is a decision of the Appeal Panel of this Tribunal in Secretary, NSW Treasury v C (GD) [2004] NSWADTAP 6 revised - 20/02/2004. At paragraph 103 the Appeal Panel stated as follows:

“Our attempt at a reformulation of the test leaving aside the issue of onus of proof is as follows:

An expert opinion may be held, ‘incorrect’ where either:

a) All of the factual material underlying the opinion is incorrect; or

b) (i) Some of this factual material is incorrect; and

(ii) The Court or Tribunal determines having due regard to expert evidence that in consequence this factual material is substantially incorrect; and

(iii) The Court or Tribunal determines having due regard to expert evidence that the opinion, if based only on the factual material that has not been held incorrect, could not be maintained by any competent expert.”

21 I also refer to two propositions highlighted by the respondent in their submissions which are also of relevance in this case. The first is that there is a distinction between facts provided to a doctor, either by the person being examined or by a third person, and the doctor’s own observations of the person being examined. The doctor’s own observations are generally not amenable to being proved incorrect. As authority for that proposition the respondent cites Secretary, NSW Treasury v C at paragraph 88 and the Court of Appeal decision in Crewdson at paragraphs 68 to 73. The second proposition relied on by the respondent and which I also adopt in these reasons is as follows:

“The opinion of one expert is not shown to be ‘incorrect’ merely by producing expert opinions to the contrary.”

22 The authorities quoted in support of that proposition are Secretary NSW Treasury v C at paragraph 85 and Central Sydney Area Health Service v Crewdson at paragraphs 62 to 67. The respondent goes on to note that as the Court of Appeal pointed out in Crewdson at paragraph 34:

“Even if the tribunal accepted other experts who had a different opinion that would not make ‘incorrect’ for the purposes of section 39(c) an accurate statement of the opinion held by Doctors Roberts and Jagger. The FOI Act is not a vehicle for the determination of disputed questions of expert or other opinion when the recorded opinion was actually held and accurately entered in the official records.”

23 That is the legal context in which I need to look at Mr Norville’s application. As I said, his application and the supporting documentation are detailed and I am not going to refer in these reasons to every single assertion or submission that he makes. Instead I have extracted certain of those submissions which I think are examples of submissions to similar effect and my reasoning applies to all the submissions in those categories.

24 First of all Mr Norville submitted that not only did Dr Jagger come to her decision that he had a personality disorder without examining him but no other medical professional came up with a diagnosis of personality disorder. It became apparent during the course of the hearing that that assertion was not entirely correct because Dr Milton, in his report of 16 November 1994 at p 8, said:

“Overall the material was consistent with that of a person with paranoid personality disorder. The same applied to his interview with me.”

25 Dr Milton went on to say:

“Nonetheless on his own account, he does not relate as a paranoid person to people outside the New South Wales Fire Brigade and indeed appears to get on reasonably well with colleagues at the same level. The problem therefore is not general nor constitutional, as expected in a paranoid personality disorder but is specific to his relationship with people in authority and probably derives from his childhood background.”

26 There is obviously some room for debate about whether or not Dr Milton was making a diagnosis of paranoid personality disorder but certainly his opinion was that the material was consistent with a finding that Mr Norville had such a disorder. So it is not strictly correct to say that no one else came up with that diagnosis.

27 Mr Norville’s other objection in general terms was that Dr Jagger has to rely on some source documents in reaching her conclusion. This is more of an objection to process than an objection to the facts or the factual substratum of her opinion. It is clear that Dr Jagger did rely on source documents and Mr Norville was well aware of what those documents were. This is really an ancillary submission which echoes Mr Norville’s submission that no one else came up with the diagnosis of personality disorder. I think when the comments of Dr Milton are highlighted, it is clear that this was not a diagnosis that Dr Jagger came up with off the top of her head but rather that, having reviewed the file and particularly Dr Milton’s report, it was a diagnosis that she not only agreed with but came to on the basis of her own opinion.

28 Mr Norville also objected to the fact that Dr Jagger only relied on one opinion, that of Dr Milton. However, her handwritten notes suggest that she reviewed the file on 16 June. There is no dispute that she had access to the entire file so I do not find, as a matter of fact, that she relied on only one opinion in coming to her conclusion. Even if other doctors hold a different view from that expressed by Dr Jagger, that does not make her view incorrect. Something more is needed.

29 The next submission of Mr Norville falls into the same category. He says that Dr Jagger did not have the most up to date reports available. He mentioned in particular a report of Dr Stanley which was a recent report but not one on which Dr Jagger relied or at least not one that she was provided with. There was an older report of Dr Stanley’s but the more recent report was not on the file.

30 Mr Norville also highlighted the fact that Dr Milton’s report on which Dr Jagger obviously relied to some extent, was some seven months old by the time Dr Jagger expressed her opinion. Again, as was pointed out by the Court of Appeal in Crewdson, our inquiry is not about the validity of the process but rather about the accuracy of the factual material underlying the opinion. It does not necessarily follow that because reports are some months old the content of those reports are not based on factual material.

31 Mr Norville then set out numerous examples of facts which other doctors had relied on to come to their diagnosis but which according to Mr Norville were incorrect. I give only one or two examples of those submissions. The first concerned a comment in Dr Milton’s report about an injury that Mr Norville suffered to his elbow and I quote the relevant passage:

“He suffered broncho-pneumonia when he was aged about 23, describing it as follows: ‘Brought on by a cortisone injection and I had- I had an injury to my left elbow, I got a reaction from it straight away and it went on to bronchial pneumonia.’ I have quoted Mr Norville directly in this instance because the quotation demonstrates a tendency typical of the rest of the interview. That is, when something went wrong in his life, he would blame it on the inappropriate behaviour of others rather than accepting it as a natural phenomenon.”

32 Mr Norville disputed Dr Milton’s interpretation of this incident saying that he did indeed suffer from bronchial pneumonia as a result of a cortisone injection. In support of that proposition he filed an affidavit from his ex-wife, Karen Norville, dated 18 April 2004 in relation to the circumstances of the injury.

33 Turning to the test as set out at paragraph 103 of Secretary NSW Treasury v C we must focus on the ultimate opinion that Dr Milton came to in this case, which was that Mr Norville’s diagnosis was consistent with that of a person having a paranoid personality disorder. Mr Norville has to show either that all of the factual material underlying that opinion is incorrect (this is not an example of that situation) or that some of it is incorrect and the tribunal determines having regard to expert evidence that in consequence this factual material is substantially incorrect and the court or tribunal determines having regard to expert evidence that the opinion, if based only on the factual material that has not been held incorrect, could not be maintained by any competent expert. So that is the test that Mr Norville would have to make out in order to be successful.

34 Firstly it should be noted that Dr Milton uses Mr Norville’s account of the injury to his elbow merely as an example of a phenomenon which he observed in a general sense in Mr Norville’s presentation. We do not know the exact context in which this comment was made except that it was clearly part of a history that Mr Milton took when talking to Mr Norville. My interpretation of what Dr Milton is saying is that he would regard it as surprising that a person would contract broncho pneumonia as a result of a cortisone injection. Even if he did, this was only one instance that Dr Milton relied on in coming to his opinion in relation to Mr Norville’s capacity for work. It is not apparent that, even if those facts were discounted, the view that he had a personality disorder or that his symptoms were consistent with a personality disorder could not have been held by a competent expert.

35 Mr Norville also referred to comments in other medical reports. One example is a comment of Dr Mandel that Mr Norville’s reality testing was very limited in this area. Other doctors referred to “perceived irregularities” referring to their understanding that Mr Norville’s perception of what had happened may not have been how other people would have perceived the situation. I pause there to refer again to the comment in the cases that a doctor’s own observations of the person being examined are not generally amenable to being proved incorrect. In this case, by reaching a conclusion that Mr Norville’s reality testing was very limited or that irregularities were perceived by him, these doctors are making their own observations about Mr Norville. There was no suggestion, nor is there any basis for finding, that the doctors regarded Mr Norville as delusional or that things that he said had happened to him had not happened. As I said the focus is on the doctor’s observations of Mr Norville’s reaction to his circumstances.

36 Another area that Mr Norville highlighted were some remarks in Dr Milton’s report that Mr Norville had a limited intellect. I agree that those remarks were made and that they may very well be incorrect. Mr Norville has provided evidence of psychiatric testing which he underwent in 1989 showing that he had above average intellect. I do not find that Dr Milton’s report or indeed Dr Jagger’s report should be amended on that basis and the reason for that is, again returning to the test set out in paragraph 103 of Secretary NSW Treasury v C the expert opinion must be based on factual material underlining the opinion. In my view any finding about Mr Norville’s intellect could not have affected Mr Milton’s conclusion about any psychological or psychiatric condition that he has or is said to have. The relevance of Mr Norville’s intellect to any such diagnosis is not apparent to me and consequently I do not think any finding in relation to that can be said to be material underlying the opinion.

37 Mr Norville made several other submissions and relied on other documents, however, having reviewed those matters, I am satisfied that none of them would justify an amendment to the record being made in the terms sought by Mr Norville.

38 Finally, in relation to document 3, this document is merely a reference to the second document. It refers to the opinion of Dr Jagger that Mr Norville was unfit for employment “due to symptoms of anxiety and depression associated with personality disorder”. The correctness of that comment stands or falls on the basis of my finding in relation to document 2. Therefore my finding that the comment in the retirement certificate about personality disorder is not incorrect or misleading also applies to the remark in document 3.

Orders

The respondent’s decision to refuse to amend document 1 is set aside. In substitution for that decision I make a decision that a notation be placed on that document stating that the words “physical incapacity” are incorrect and should be disregarded and that the words psychological unfitness” should be read in substitution for those words.

In relation to documents 2 and 3, the applicant’s application in relation to those documents is dismissed pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act as misconceived or lacking in substance.