Underwood v Metro North Hospital and Health Service
[2024] QCATA 88
•2 September 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Underwood v Metro North Hospital and Health Service [2024] QCATA 88
PARTIES:
HELEN UNDERWOOD (appellant)
v
METRO NORTH HOSPITAL AND HEALTH SERVICE (respondent)
APPLICATION NO/S:
APL105 of 2020 & APL153 of 2021
MATTER TYPE:
Appeals
DELIVERED ON:
2 September 2024
HEARING DATE:
18 June 2024
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Forrest SC
ORDERS:
1. Both appeals, APL105-20 and APL153-21, are dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL where the appellant made two appeal applications to the Tribunal – where an appeal to the Tribunal of a decision of the Information Commissioner can only be raised on a question of law – whether appellant is raising any questions of law in decisions appealed from Information Commissioner – appeals dismissed
Information Privacy Act 2009 (Qld) ss 103, 132
Right to Information Act 2009 (Qld) s 90
O’Connor v Department of Child Safety, Seniors and Disability Services [2024] QCATA 34
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
S Shepherd for the respondent
REASONS FOR DECISION
Some Background
Two appeals brought by the appellant are being determined. At the hearing on 18 June 2024, I directed that the matters be heard and determined together. I have previously heard and determined numerous applications in these appeals. Much of the background to the appeals has been set out in the reasons I have given in disposing of those applications. For context though, I will set out some of those again.
The appellant made two applications to the Metro North Hospital and Health Service (‘Health Service’) for access to documents from her medical records pursuant to the Information Privacy Act 2009. Her applications were determined and she was given access to most of the documents she applied for access to and only partial access to several other pages, with some parts of those pages being redacted. Dissatisfied with that outcome, the appellant applied to the Information Commissioner for external review of the Health Service’s primary decisions. Upon completion of the external reviews, the Information Commissioner affirmed the primary decisions of the Health Service.
The appellant appealed to this Tribunal against both decisions of the Information Commissioner as is her right pursuant to s 132(1) of the Information Privacy Act 2009 (Qld) (‘IP Act’). As can be seen from this Tribunal’s numbering of these Appeals, one was commenced in 2020 and one was commenced in 2021. For various reasons that are not necessary to go into now while disposing of the appeals, the two matters were ultimately listed for hearing on two separate days in June this year. At the commencement of the hearing of the first one on 18 June 2024, the appellant told the Tribunal that she was content for both appeals to be heard on that day. The representative of the respondent agreed with that course being adopted by the Tribunal.
The Tribunal’s Jurisdiction on Appeal
Pursuant to s 132(2) of the IP Act this Tribunal’s jurisdiction on these appeals is to determine questions of law only. Just as Judicial Member McGill SC said in O’Connor v Department of Child Safety, Seniors and Disability Services [2024] QCATA 34 at [11] there is no jurisdiction to conduct any form of merits review. In order to have this Tribunal make any change to the decisions of the Information Commissioner, the appellant must show that the decisions of the Commissioner involved an error of law, which affected, or could have affected, the decisions.
The Appellant’s Submissions
The appellant filed written submissions and made oral submissions on the day of the hearing. In those submissions, the appellant acknowledged the requirement to demonstrate error of law by the Commissioner.
Essentially, the first submission of the appellant was that the Commissioner erred in failing to comply with the requirements of s 103 of the IP Act and s 90 of the Right to Information Act 2009 (Qld). The appellant submitted that the Commissioner’s failure to arrange for a mediation of her dispute with the respondent and to “promote settlement” of the application amounted to an error of law.
Section 103(1) of the IPA is as follows:
(1) If an external review application is made to the information commissioner, the commissioner must—
(a) identify opportunities and processes for early resolution of the external review application, including mediation; and
(b) promote settlement of the external review application.
Section 90 of the Right to Information Act 2009 (Qld) is to the same effect.
In this matter, the Commissioner utilised a process of writing to the appellant early in the process and providing her with a preliminary view of the Commissioner’s thoughts on the matter. The appellant was invited to make submissions in response. The appellant then provided the Commissioner with hundreds of pages of submissions over a lengthy period of time in which she requested and was granted many extensions of time within which to make further submissions. The Information Commissioner, expressly referring to the requirement to identify opportunities for early resolution and the promotion of settlement of the review, pointed out that the appellant indicated “from an early stage” that she was seeking a formal written decision and that she intended to appeal to this Tribunal if the decision did not satisfy her.
The statutory requirement cited above does not mandate mediation in all review applications. It mandates consideration of opportunities and processes for early resolution and settlement that include mediation. Where the Commissioner identifies, as happened here, that such processes will not work and, therefore, does not implement them, there is no error of law.
The appellant also submitted that the provision of a preliminary view and inviting submissions in response amounted to bullying by the Commissioner that constituted a denial of natural justice. I respectfully reject that submission and do not find any error of law to be demonstrated by that course being taken. It specifically directs a person without legal representation to the issues that he or she needs to consider more carefully and direct submissions to. It does not indicate a firm decision has been taken from which the Commissioner will not be shifted.
The appellant also submitted that the Commissioner acted in a misleading and deceptive manner by using footnotes in the decision. Such a submission is baseless. Footnotes are often used in decisions and reasons for judgment. Using them does not amount to an error of law.
The appellant submitted that the Commissioner did not provide procedural fairness because there was no communication or consultation during the review process. I do not accept this submission. The appellant was given opportunity to respond to preliminary views of the Commissioner and did so by submitting hundreds of pages of submissions. The submissions were engaged with by the Commissioner in the written decisions. A failure to provide procedural fairness has not been demonstrated by the appellant.
A similar submission was made by the appellant asserting that her submissions were ignored, and that this demonstrates bias and failure to provide procedural fairness. I repeat what I said in [13] above and reject the submission. No bias was demonstrated.
The appellant’s next submission was that the Information Commissioner showed bias by writing to the respondent during the review process and not providing the appellant with a copy of that correspondence at the time. The appellant conceded that she has since seen the letter. It pointed out to the respondent that the appellant had apparently obtained some of the information the respondent was not releasing to her and suggested that the respondent might no longer object to its being released to the appellant. It invited the respondent’s response. There was nothing in its content that would cause the objective bystander to consider that the Commissioner was demonstrating bias in favour of the respondent or against the appellant. In fact, it demonstrated to the contrary. No error of law was demonstrated by the appellant in respect of this submission and I respectfully reject it.
The appellant further submitted that a letter that the Information Commissioner represented was sent to her was never sent by the Commissioner nor received by the appellant. I am simply not in a position to accept the assertion by the appellant that the letter was never sent by the Commissioner. Even if it was not received by the appellant, its content was innocuous. According to the appellant, (who has clearly since seen its content) the letter said:
Thank you for your submissions delivered by hand to our office on 5 September, 2019.
By way of update, we are currently seeking additional information from Metro North Hospital and Health Service concerning the matter. We will be in touch again concerning the next steps in this review once we have their response. At this stage, I expect this to occur in Mid-November.
If you have any questions in the meantime, please contact Ms …, Senior Review Officer, by writing to the address below.
Even if the appellant did not receive that letter, I do not consider the non-receipt of that letter demonstrates any error of law in this matter.
The appellant submits that the Commissioner writing in the letter to the respondent the words “the OIC is not aware of how [the appellant] obtained this information” is making a disparaging comment. It appears to be a statement of fact and I do not accept that it somehow demonstrates bias or a lack of procedural fairness. Nor has the appellant demonstrated that it constitutes an appealable error of law.
The appellant submitted that the Commissioner erred by making decisions in a hurry. This was a curious submission in that later in her submissions the appellant made an inherently contradictory submission that the Commissioner erred by “failing to conduct external reviews expeditiously”. I reject both submissions and am satisfied that the appellant has not demonstrated error of law with either submission.
The appellant submitted that the Commissioner erred in appealable sense by emailing a decision to her at an email address the Commissioner had when the address on the application was plainly a P.O. Box. The appellant was particularly concerned about this. She expressed it to be a grave breach of her privacy. However, even if it was a step taken by mistake and an email was sent that should not have been sent to the appellant, I do not find that it infects the Commissioner’s decisions with errors of law.
The appellant submitted that the Commissioner erred again by not attaching certain documents that were said to be attached to the preliminary view that was sent to her. If that was correct, it was plainly a mistake, the impact of which was able to be rectified by the appellant pointing it out and asking for the documents to be sent to her again so that she could make her submissions before the final decision was made and published. It does not amount to an appealable error of law.
Several further submissions made by the appellant can effectively be bundled into a submission that the Commissioner erred by not acknowledging that the respondent had not identified an anonymous complainant who gave the respondent information about the appellant and by not giving the appellant the opportunity to refute or repudiate the anonymous accusations.
It became apparent through the course of these proceedings before the Tribunal that the appellant was utilising the entire process to try to find out the identity of persons who had made complaints to the respondent about her. The Commissioner considered the issue of the identity of the person or persons who had complained and, as I read the decisions appealed against, dealt with that issue according to law. The appellant did not make out her argument around this issue in a way that disclosed any error of law on the Commissioner’s part.
The appellant further submitted that the Commissioner erred by failing to consider a report from her psychologist or concerns expressed by her doctor. There had been communication between the Psychologist and her doctor and the respondent on the appellant’s behalf explaining some aspects of the appellant’s personality and behaviour to the respondent. Respectfully, the appellant was again not able to build on the basic assertion of error to demonstrate appealable error of law on the Commissioner’s part in this respect.
The appellant’s final submissions that the Commissioner erred in the manner in which the public interest questions were considered and also in not establishing “an equitable obligation of confidence” were also not expanded upon in a manner that gave me any cause to consider the Commissioner had erred in law. In fact, the Commissioner had provided a very detailed discussion of the public interest issues and the matters that were considered and weighed in ultimately determining the Reviews against the appellant. The appellant did not demonstrate any error of law in the Commissioner’s approach to that issue.
As to the submissions that the Commissioner had “not established an equitable doctrine of confidence”, I respectfully did not understand the appellant’s submission and when she was not able to elucidate the point further in oral submissions the appellant left me completely unable to determine that there was an error of law in the Commissioner’s decisions arising from the equitable doctrine of confidence.
Ultimately, as I am not able to find error of law anywhere in the Commissioner’s decisions as contended for by the appellant, I have to dismiss the two appeals.
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