Phillips v Military Rehabilitation and Compensation Commission

[2006] FCA 882

FEDERAL COURT OF AUSTRALIA

Phillips v Military Rehabilitation and Compensation Commission
[2006] FCA 882

ADMINISTRATIVE LAW – decision to terminate compensation payments – whether decision involved breaches of the Privacy Act 1988 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Privacy Act 1988 (Cth) ss 6, 6C, 14, 16, 16A, 98, Sch 3
Safety, Rehabilitation and Compensation Act 1988 (Cth)

NEIL WREN PHILLIPS v MILITARY REHABILITATION AND COMPENSATION COMMISSION
NSD 793 of 2006

COWDROY J
7 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 793 of 2006

BETWEEN:	NEIL WREN PHILLIPS Applicant
AND:	MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent
JUDGE:	COWDROY J
DATE OF ORDER:	7 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs, such order not to be enforced for a period of six months from the date of this order.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 793 of 2006

BETWEEN:	NEIL WREN PHILLIPS Applicant
AND:	MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent

JUDGE:	COWDROY J
DATE:	7 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by Mr Phillips to set aside a decision made by a delegate of the Military Rehabilitation and Compensation Commission on 13 March 2006 which determined that Mr Phillips was no longer entitled to receive compensation for incapacity pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’).

2. The application also seeks to set aside a second decision of the respondent, which was a review of the first decision, which Mr Phillips claims was made on 6 April 2006, and seeks an order that compensation be paid in accordance with the SRC Act. The applicant also seeks, by way of interlocutory relief, an order that incapacity payments be reinstated and paid retrospectively from 10 April 2006. The application is based upon breaches of the Privacy Act 1988 (Cth).

3. As a preliminary issue, I note that the respondent named in the application, the Department of Veterans’ Affairs, is not a legal entity which is capable of being sued. The proper respondent is the Military Rehabilitation and Compensation Commission. By consent, I have granted leave for the respondent in the application to be changed to that entity.

   FACTS

4. The applicant sustained an injury to his back in February 2003 whilst he was employed by the RAAF as a cook.

5. The applicant was paid compensation for incapacity pursuant to the provisions of the SRC Act in respect of his injury. However on 13 March 2006 Mr Harry Slegers, a delegate of the respondent, determined that the applicant was no longer entitled to receive incapacity compensation. The applicant was notified of the decision by a letter dated 13 March 2006 which stated that payments would cease on 10 April 2006. The letter also states that the decision to terminate incapacity compensation had taken into account the medical assessment conducted by Dr Silva, consultant orthopaedic surgeon, which concluded that the applicant was not incapacitated for work.

6. The applicant says that on 13 March 2006 he had two telephone conversations with Mr Slegers. In the first conversation, Mr Slegers stated he had not received the report of Dr Silva. In the second conversation, which occurred two hours later, the applicant claims that Mr Slegers stated that Dr Silva’s report had been emailed to him. Mr Slegers then advised the applicant that he had made a decision to terminate incapacity compensation payments to the applicant. The applicant says that he requested that Mr Slegers forward by email a copy of Dr Silva’s report to him, but was told that Mr Slegers could not do so, as to forward a copy of the medical report by email would constitute a breach of the Privacy Act.

7. The applicant says that on 16 March 2006, having received the letter of 13 March 2006, he again telephoned Mr Slegers. The applicant claims that in that conversation Mr Slegers acknowledged that he had made mistakes and agreed that his decision was wrong. The applicant also says that Mr Slegers indicated that he would seek advice from his supervisor and make arrangements to have his decision reversed.

8. By way of corroboration, the applicant has provided a copy of a facsimile which he sent to Mr Slegers on 17 March 2006. The facsimile demands that the medical report of Dr Silva be rejected and that the decision to terminate payments be revoked. The facsimile refers to the two telephone conversations on 13 March 2006 and to the telephone conversation on 16 March 2006. It does not refer to any admission by Mr Slegers that his decision was wrong and should be reversed.

9. On 28 March 2006, the applicant applied to the respondent for a reconsideration of the decision of Mr Slegers. By letter dated 6 April 2006, Ms Gillian Tate, the Manager of Reconsiderations at the respondent, wrote to the applicant stating that specialist medical opinion would be required to challenge the opinion of Dr Silva and allowing the applicant until 19 May 2006 to provide such information. The letter rejected any assertion that Dr Silva’s report was false, misleading, unbalanced or biased in the absence of evidence. The letter referred to the opinions of two other medical professionals who had indicated that the applicant was not incapacitated for work.

10. Payments of compensation ceased on 10 April 2006. The applicant, apparently believing on this basis that a decision upon his reconsideration had been made on 6 April 2006, instituted these proceedings on 24 April 2006.

11. In fact, this appears to have been a misunderstanding on the part of the applicant. The cessation of payments occurred as a result of the original decision made on 13 March 2006. It seems that there is no provision of the SRC Act which requires the respondent to continue paying compensation while the reconsideration of a decision is undertaken. In fact, no decision was made by Ms Tate on the reconsideration until 29 May 2006, when she affirmed Mr Slegers’ decision, having received no further medical evidence from the applicant.

12. The respondent relies upon an affidavit of Harry Slegers affirmed on 5 July 2006 which disputes many of the factual allegations made by the applicant, and in particular denies that Mr Slegers ever acknowledged that his decision was incorrect or acknowledged that the manner in which the decision was made was wrong. The applicant disputes some of the factual matters contained in that affidavit.

13. In their oral evidence, Mr Slegers and the applicant agreed upon many of the facts outlined above. In view of the findings below, I do not consider it necessary to determine the entirety of the factual disputes between the parties. I generally accept the outline of facts given by Mr Slegers, who appeared to be a reliable witness. He also had the benefit of contemporaneous notes which supported his oral testimony. 

14. However, I would also observe that I consider that the applicant genuinely believes that the evidence he gave to the Court is true. The circumstances surrounding the termination of the applicant’s compensation benefits have clearly caused him distress. It appears that relations between the applicant and the respondent have been, on occasion, strained, which has led the applicant to be distrustful of the respondent’s motives and perhaps to misunderstand comments made by officers of the respondent.

    THE CLAIM

15. The applicant is unrepresented and the documents supporting his claim are not in the usual form. The affidavits and statements provided contain a range of complaints against the respondent. Many of those complaints are not related to a legal claim but are issues which might more properly be raised with an ombudsman.

16. The applicant has predicated his claim for the relief he seeks upon breaches of the Privacy Act. The applicant states that officers of the respondent were in breach of the Privacy Act in making their decisions to terminate his compensation payments, and that accordingly those decisions were invalid. In the information accompanying his application, the applicant has specifically referred to breaches of Information Privacy Principles 2, 7, 8 and 9 (‘the Principles’) and National Privacy Principles 9 and 10.

17. From the documents provided, the Court identifies the following claims by the applicant with respect to breaches of the Privacy Act by the respondent:

    ·Breach of Principle 7, 8 and 9 by Ms Tate because of her rejection of the applicant’s assertions with respect to Dr Silva’s report, and her failure to append the applicant’s disagreement to Dr Silva’s report;

    ·Breach of Principle 7 by Mr Slegers because he acknowledged the medical information was false and misleading and failed to make correction or amendment of that information;

    ·Breach of Principle 8 by Mr Slegers because the conclusions in Dr Silva’s medical report were subject to alteration if further evidence were provided, and therefore the report was not accurate, up to date and complete;

    ·Breach of Principle 8 by Mr Slegers because Dr Silva’s report implied that there must be muscle spasms in order for there to be pain;

    ·Breach of Principle 8 by Mr Slegers because Dr Silva’s report contained statements which indicated an impairment, and no impairment rating was provided;

    ·Breach of Principle 8 by Mr Slegers because Dr Silva’s report failed to provide details of the x-rays he viewed for the purpose of his report, and therefore the information provided was not complete;

    ·Breach of Principle 8 by Mr Slegers because no new evidence or test results were provided in between the determination that he was eligible for compensation and the report of Dr Silva, and therefore the conclusion must necessarily be the same;

    ·Breach of Principle 9 by Mr Slegers because the information relating to social history and employment contained in Dr Silva’s report was not relevant, since he was not appropriately qualified to make comments upon these matters;

    ·Breach of Principle 9 by Mr Slegers because the reference in the report of Dr Silva to an expert witness code was not relevant;

    ·Breach of Principle 9 by Mr Slegers because the report of Dr Silva contained reference to the applicant’s present surroundings and activities which were not relevant.

18. The applicant makes several further claims about the inaccuracy, irrelevance or misleading nature of Dr Silva’s report, which he says also lead to breaches by Mr Slegers of Principles 8 and 9.

19. The applicant has also made allegations with respect to actions taken by the respondent in 2003 which were not part of the decisions presently under review. I will not consider these matters as they cannot properly be taken into account in reviewing the decisions which the applicant has challenged in his application. As the only reference to a breach of Principle 2 occurs in respect of these earlier matters, there is accordingly no need to consider Principle 2.

20. The applicant has also made claims against the respondent based upon breaches of the National Privacy Principles. However, for the reasons set out at [23], the National Privacy Principles do not apply to the respondent and therefore the claims in this respect must fail. Accordingly, the Court will not consider these claims.

    STATUTORY BACKGROUND

21. Section 14 of the Privacy Act contains Information Privacy Principles. Section 16 of the Privacy Act provides:

    ‘An agency shall not do any act, or engage in a practice, that breaches an Information Privacy Principle.’

22. ‘Agency’ is defined in s 6 to include (among other things) ‘a Department’ and ‘a body  (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment …’. I am satisfied that the respondent is an ‘agency’ for the purposes of the Privacy Act and is therefore required to abide by the Information Privacy Principles.

23. The National Privacy Principles are contained in Schedule 3 to the Privacy Act. By s 16A(2), the National Privacy Principles are binding upon ‘an organisation’. The definition of ‘organisation’, contained in s 6C, explicitly excludes an agency. Accordingly, the National Privacy Principles have no application to the respondent.

24. The Information Privacy Principles which are identified by the applicant in the relevant portions of his claim are Principles 7, 8 and 9. Those principles provide:

    ‘Principle 7

    Alteration of records containing personal information 

    1.A record‑keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:

    (a)is accurate; and

    (b)is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up to date, complete and not misleading.

    2.The obligation imposed on a record‑keeper by clause 1 is subject to any applicable limitation in a law of the Commonwealth that provides a right to require the correction or amendment of documents.

    3.Where:

    (a)the record‑keeper of a record containing personal information is not willing to amend that record, by making a correction, deletion or addition, in accordance with a request by the individual concerned; and

    (b)no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request has been made under the applicable provisions of a law of the Commonwealth;

    the record‑keeper shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the record any statement provided by that individual of the correction, deletion or addition sought.

    Principle 8

    Record‑keeper to check accuracy etc. of personal information before use 

    A record‑keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date and complete.

    Principle 9

    Personal information to be used only for relevant purposes 

    A record‑keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.’

25. Section 98 of the Privacy Act bestows jurisdiction upon this Court to grant an injunction to remedy a breach of the Privacy Act. Section 98(1) provides:

    ‘(1)Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted or would constitute a contravention of this Act, the Federal Court or the Federal Magistrates Court may, on the application of the Commissioner, or any other person, grant an injunction restraining the person from engaging in the conduct and, if in the court’s opinion it is desirable to do so, requiring the person to do any act or thing.’

26. The Privacy Act does not provide that an administrative decision is invalidated if a breach of that Act has occurred in the process of making the decision. Nor does the Act bestow any power upon the Court to grant mandamus or certiorari in respect of breaches of the Privacy Act. However, the Court has power under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) to declare an administrative decision invalid if it has been made unlawfully.

    FINDINGS

27. The applicant has expressly stated that the application before this Court is made under the Privacy Act, and has not raised any grounds of judicial review except for the alleged breaches of that Act. The applicant has claimed that, in making the decision upon his entitlement to incapacity compensation, the respondent has committed breaches of the Information Privacy Principles.

28. The applicant relies solely upon breaches of the Privacy Act to make his claim. However, in order to bring a claim to set aside an administrative decision to this Court, it is not sufficient that the respondent has breached provisions of the Privacy Act which are binding upon it. To entitle the applicant to relief, he must also establish that a breach of those principles would render the decision invalid.

29. No submissions have been made on this issue. However, the Court will assume for the purposes of this decision that, if a breach of the Privacy Act is established, this would render the decision of the respondent invalid.

30. The Court has looked closely at the material provided by the applicant and the Information Privacy Principles. For the reasons which follow, I am not satisfied that any breach of the Privacy Act is established. It appears to be the case that the applicant has, perhaps understandably given that he is not legally trained, misunderstood the nature and meaning of the Information Privacy Principles.

31. With respect to the report of Dr Silva, I agree with the respondent’s submission that it  is not at liberty to alter a medical report merely because the conclusions expressed therein are contrary to the opinions of others. The medical report is intended to be a record of the opinion of the medical practitioner who completed it. That record may not be altered except by, or with the consent of, that medical practitioner. Otherwise, the report is no longer an accurate representation of the opinion of the medical practitioner. Accordingly, the claim by the applicant that Ms Tate had an obligation to correct the record under Principle 7 is incorrect. She had no power to alter the report, except with the express authority of Dr Silva.

32. The applicant made many challenges to the contents of Dr Silva’s report. The challenges of substance were to Dr Silva’s medical opinions. The applicant was entitled to provide evidence to the respondent which refuted those opinions. However, given that the claim relates to an area of medical expertise, he would require medical evidence to support his challenges to Dr Silva’s report, or alternatively, would require evidence that Dr Silva’s report contained a significant objective error (for example, that the report related to the wrong patient). If the applicant had provided information of this kind to the respondent, it would have been obliged to consider it and perhaps take further steps to ensure the information it had was accurate. However, the applicant’s submissions to the respondent neither provided conflicting medical evidence, nor pointed to any significant error in the factual premises on of the report. Certainly, there were some mistakes in the report, such as typographical errors, which are acknowledged by the respondent, but these do not make the report inaccurate in any substantial way.

33. The applicant also alleges that the medical report draws incorrect conclusions in respect of his injuries. However, this is a question of medicine and of law, not a factual premise which could be challenged without medical evidence. In the absence of such evidence, the respondent was entitled to rely upon Dr Silva’s report as representing an accurate, up to date and complete summation of the applicant’s medical condition.

34. The applicant has suggested that the medical report was obviously incomplete, because, for example, it did not provide details of the x-rays which had been viewed, and did not include an impairment rating. The applicant says that the respondent should have taken further steps to complete his record in accordance with Principles 7 and 8. However, I do not consider that every possible detail relating to the applicant’s medical condition is required to be included in the report before it can be considered as ‘complete’ by the respondent for the purposes of the Principle 8. A medical report might be incomplete if, for example, it did not consider the whole of the applicant’s claimed condition, or if it entirely ignored significant elements of an applicant’s medical history. However, the allegations made by the applicant in this matter do not raise these issues but rather refer to smaller, less significant details which are not included in the report. I do not consider that the absence of these details renders the report incomplete.

1. The applicant also suggested that it was obvious that the report was not up-to-date, as it relied upon medical reports, the most recent of which was three years old. I agree that the x-ray reports relied upon were not recent. However, the applicant has overlooked that his recent visit to Dr Silva was itself a source of up to date medical information. Dr Silva was correct to consider the applicant’s medical history in making an up to date diagnosis based upon his own observations and examination of the applicant.

2. It follows from the above that I do not consider that the respondent was in breach of Principle 8.

3. The applicant has also made allegations that the report of Dr Silva contains information which is not relevant to his medical condition. The applicant alleges this is a breach of Principle 9. However, I consider that, unfortunately, the applicant has misunderstood the nature of the principle. Principle 9 does not prohibit a report from containing information which is not relevant to the decision which is to be made. Rather, Principle 9 prevents the medical practitioner or the respondent from using information which it has gathered for the purpose of assessing his right to compensation for any other purpose. For example, the respondent could not provide the applicant’s medical details to a newspaper, or provide his address to a local real estate agent, because those are not the ‘relevant purpose’, that is, the purpose for which the information was collected. The effect of Principle 9 is that the respondent is only entitled to use the information in the report to assess his right to compensation for incapacity. The applicant has not claimed that the respondent has misused personal information provided by him to it. Clearly, the respondent used the medical report for the purpose of determining his claim, which is the precise purpose for which it was collected. Accordingly, I am not satisfied that a breach of Principle 9 has occurred.

   CONCLUSION

4. It follows from the above that I do not consider that the respondent has committed any breach of the Privacy Act. Accordingly, the basis of any relief which the Court might grant under the Privacy Act or the ADJR Act is not established, and I must dismiss the application.

5. I would note in conclusion that the ultimate objective of the applicant is to have the merits of his claim reconsidered, and his real objection is to Dr Silva’s report and the decision to terminate his compensation payments. The applicant has a right of review in the Administrative Appeals Tribunal, and the period in which the applicant may lodge an appeal without leave has not yet expired. Unlike this Court, whose role is limited to judicial review, the Tribunal is a forum which is able to determine the whole of the matter to ensure that the correct and preferable decision is made.

6. It is not the function of this Court to assess the merits of the applicant’s claim for continuing compensation payments, nor do I have sufficient material before me to do so. The only observation I would make is that I consider it would be of great benefit to the applicant if he were to obtain independent medical and legal advice which would give him a better understanding of the merits of his claim.

7. The respondent has sought an order for costs. Since the applicant has been unsuccessful, it is appropriate that an order be made, but I will postpone its operation for a period of six months in recognition of the applicant’s current impecunious state.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:              7 July 2006

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	G T Johnson
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	6 July 2006
Date of Judgment:	7 July 2006